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This Week's Parshah: Which Animals Are Permitted to Eat? This week's Parshah discusses the halachos regarding which animals may be eaten and which are forbidden.
In Perek 11, Passuk 3, the Torah states:
"Any animal that has split hooves and chews its cud—those you may eat."
Rashi comments that from the final phrase of the Passuk—"those you may eat"—we derive a form of a positive commandment, which implicitly prohibits eating animals that do not meet these criteria – an issur aseh. In other words, the Torah is telling us: these you may eat—and not others.
This form of prohibition is not expressed in the usual way with the word "do not," and therefore it is categorized by the Talmud as a prohibition inferred from a positive commandment (lav haba miklal aseh). The halachic rule is that one who violates such a prohibition does not receive lashes, since the Torah never explicitly stated it as a negative commandment (lav).
A few verses later, in verse 8, the Torah speaks about animals such as the camel, hyrax, hare, and pig—each of which possesses only one of the two required kosher signs. There, the verse states:
"You shall not eat of their flesh, and you shall not touch their carcasses—they are impure for you."
Here, the Torah uses clear language of prohibition—"you shall not eat"—creating an actual lav (negative commandment) that forbids the consumption of their meat.
Rashi notes that although the verse mentions only these four animals, we apply a logical deduction (kal vachomer) to include other animals that lack both kosher signs. If animals that have one kosher sign are explicitly forbidden, then certainly animals that have none are included in the prohibition as well.
A Halachic Question: Can We Derive a Torah Prohibition from Logic Alone? The Rambam, in the Laws of Forbidden Foods (Chapter 2, Halacha 1), also rules that animals lacking both kosher signs—chewing the cud and split hooves—are included in the Torah prohibition based on a kal vachomer (a logical inference): if animals that have only one kosher sign are forbidden, then animals that have none must certainly be forbidden. However, this ruling raises a major difficulty, noted by the Maggid Mishneh, one of the foremost commentaries on the Rambam.
The Maggid Mishneh asks: How can the Rambam say that there is a full Torah prohibition (lav) against eating these animals if it's based on a kal vachomer? The Talmud teaches a principle: "we do not issue warnings based solely on logic" (ein mazhirin min hadin).
This means that a person cannot be held liable for violating a Torah prohibition if the prohibition is derived only through logical inference, rather than from explicit wording in the Torah.
This is clearly illustrated in the Talmud (Makkos 5a), which discusses the prohibition against marrying one's sister. The Torah forbids marrying a half-sister from the father, and separately forbids marrying a half-sister from the mother. One might have assumed that the full sister—who shares both parents—is certainly included based on a kal vachomer. Yet the Torah provides a separate verse to forbid this case explicitly, because we cannot rely on logic alone to create a formal prohibition. This is a classic example of the rule ein mazhirin min hadin.
So the question returns: How can the Rambam claim that eating animals without either kosher sign is prohibited by a full lav, if that prohibition is based on a kal vachomer?
The Maggid Mishneh (and similarly the commentary of the Re'em on Rashi's commentary to the Torah) offers a resolution.
He explains that there is an exception to this rule: when we already know that the item is forbidden by a positive commandment (aseh), then it is permitted to extend the negative prohibition (lav) through a kal vachomer. Since the Torah already told us that only animals with split hooves and that chew their cud may be eaten—thereby forbidding all others through a positive commandment—we already know that the animals without either sign are forbidden.
Once that status of prohibition exists—albeit through a positive command—the kal vachomer can then be used to extend the explicit lav of "you shall not eat of their flesh" to these other animals as well. In short, we're not creating a prohibition from logic alone—we are simply expanding the reach of an already established prohibition.
Does Tosafos Disagree? The View of the Shaagas Aryeh This discussion takes an intriguing turn with a comment from the Shaagas Aryeh in his responsa (Siman 80), where he analyzes this very issue and brings down the Rambam's position. He argues that Tosafos does not agree with the Rambam and the Maggid Mishneh's approach.
The Shaagas Aryeh draws proof from a different sugya—in Pesachim, where the Torah forbids cooking the Korban Pesach in water. The verse says explicitly that it must be roasted, not cooked. The Gemara there extends the prohibition to cooking in other liquids, such as wine or apple juice, based on a logical argument (kal vachomer): if cooking in water—which does not significantly alter the taste—is forbidden, then certainly cooking in flavorful liquids should be as well.
Tosafos there challenges this logic. They ask: How can we forbid cooking in other liquids based on a kal vachomer? Don't we have a rule of "we do not derive prohibitions from logic alone" (ein mazhirin min hadin)? This should prevent us from establishing a formal lav (Torah-level prohibition) through a kal vachomer.
But here the Shaagas Aryeh steps in with a powerful question on Tosafos. He notes that Tosafos themselves say that the obligation to roast the Korban Pesach (rather than cooking it) is a positive commandment (aseh). If so, following the Maggid Mishneh's principle, that once something is already forbidden through a positive commandment we can apply a lav to it through a kal vachomer, then Tosafos's question should fall away! Why are they troubled by the kal vachomer—according to the Maggid Mishneh's logic, it would work just fine?
The answer, says the Shaagas Aryeh, is clear: Tosafos must reject the Maggid Mishneh's principle. They hold that even when something is already forbidden by a positive commandment, a lav cannot be learned through a kal vachomer. If it's not explicitly written, it cannot become a full Torah-level prohibition. That is their reason for questioning the prohibition of cooking the Korban Pesach in other liquids.
Now, if we follow this logic, a significant consequence emerges. According to Tosafos, there would not be a formal lav for eating animals that possess neither kosher sign—like a horse or a rabbit—because that prohibition too was derived by the Rambam through a kal vachomer. If ein mazhirin min hadin applies, then no lashes (malkus) would be given to someone who ate such meat, since no full lav exists!
This would be a major halachic implication—a nafka minah—in terms of punishment: one who eats horse meat, for example, would not receive lashes according to Tosafos. However, this conclusion is highly novel and difficult to accept, as the consensus of Rishonim and Acharonim assumes that eating non-kosher animals with no simanim is indeed a Torah-level lav.
The challenge remains: if Tosafos rejects the kal vachomer in the case of cooking the Korban Pesach, yet still holds that there is a lav for eating non-kosher animals—how exactly do they arrive at that conclusion?
Are the Kosher Signs a Cause or a Sign? A Foundational Debate The later authorities pose a classic chakirah—a conceptual question—regarding the kosher signs that the Torah gives for identifying kosher animals. The Torah tells us that in order for an animal to be kosher, it must both chew its cud and have split hooves. The question is: are these features a cause (sibah) that make the animal kosher, or are they simply a sign (siman) that help us identify which animals are kosher?
To explain the difference, let's use a simple analogy: Imagine someone sees a cup of water with a poison pill dissolved inside. He won't drink it—not because of the color or label on the cup, but because the pill itself is what makes the water dangerous. That pill is the cause (sibah) of the danger.
Now imagine a different case: a completely harmless cup of water with a sticker on the outside that says "poison." The pill isn't in the water, but the label serves as a warning sign. In this case, the label is not the cause—it is a sign (siman) of what's inside.
So too with kosher animals: When the Torah lists chewing the cud and split hooves as kosher signs, is it because those features make the animal kosher (like the pill causing the danger)? Or are they just an identifying marker of kosher species (like the label), with the status of kashrus determined by some other internal factor?
This is not just theoretical. There are real halachic consequences depending on how we answer this question.
A Case from the Talmud: The Deformed Kosher Animal The Talmud in Bechoros discusses a fascinating case: what happens when a non-kosher animal, such as a horse, gives birth to an offspring that looks like a kosher animal? Suppose this offspring has split hooves and chews its cud—the exact features of a kosher animal—but we know it was born from a horse.
The Talmud rules that the status of the animal follows its species of origin. If it was born from a cow, it is kosher. If it was born from a horse, it is not kosher, regardless of its appearance.
This case appears to be a clear proof for our chakirah. If chewing the cud and split hooves are the cause (sibah) of being kosher, then once an animal has those features, it should be kosher—no matter its DNA. But if those features are only a sign (siman), then this animal, despite its kosher appearance, is still a horse, and therefore it remains forbidden.
The Maharit (Rabbi Yosef di Trani) uses this case to prove the point: the signs are only simanim—they indicate which animals are kosher, but they do not determine that status themselves. A horse is not non-kosher because it lacks these signs. It is non-kosher because it is a horse—a species that Hashem declared forbidden. The signs simply make it easier for us to recognize.
To quote the famous expression of Rabbi Boruch Ber Leibowitz: A horse is not a horse because its mother is a horse. A horse is a horse because it's a horse.
A Further Question: Why Not Prohibited Due to "What Comes From a Non-Kosher Animal"? There is a separate law in halachah that anything which comes from a non-kosher animal is also non-kosher. This is known as the rule of "what comes out of a forbidden species" (yotzei min hatamei). For example, milk from a horse is forbidden, just like the animal itself.
So the question arises: if a horse gives birth to a deformed calf that looks like a kosher animal, why do we need a separate verse to teach that it is forbidden? Shouldn't it be forbidden automatically because it came from a non-kosher species?
The Maharit and others explain that this is precisely the point of the verse: to teach us that the animal is not just forbidden because it comes from a horse (yotzei), but because it is a horse, even though it looks like something else. This is not a halachah about lineage or "products" of animals. It is a statement about identity.
Even if this animal chews its cud and has split hooves, the Torah teaches us that these signs are only indicators, not causes. The animal remains what it is in essence—and if its species is forbidden, it is forbidden.
To return to our earlier analogy: if you find a bottle of poison with a missing label, it's still poison. And if you take a bottle of water and slap a "Poison" label on it, it doesn't become poison. So too, if a horse happens to look like a cow, it's still a horse. The signs alone do not define its halachic status.
Rishonim Who Hold the Kosher Signs Are the Cause—Not Just a Sign While until now we brought the view of the Maharit and others who hold that the kosher signs are merely indicators (simanim) of which species are permitted, many Rishonim and Acharonim take the opposite position. They understand that the signs—split hooves and chewing the cud—are not just simanim, but actually the cause (sibah) that makes an animal kosher. In their view, when an animal possesses these signs, that is what creates its status of being permitted to eat.
This debate has significant halachic implications.
The Pischei Teshuvah (Yoreh Deah 79:2) quotes from the sefer Yad Eliyahu who argues that the Gemara which forbids eating a deformed horse that looks like a cow—i.e., it chews its cud and has split hooves—is not forbidding it because it is inherently a horse, as the Maharit would say. Rather, he maintains that this animal is in fact a kosher animal, because it has the signs that create permissibility, but for some other reason it is forbidden to eat, akin to a separate prohibition—like eating on Yom Kippur. According to this, the kosher signs did their job. The animal is halachically a kosher species. But there is an independent prohibition placed on eating this specific animal. This creates several nafka minos—practical halachic differences—between whether the animal is inherently non-kosher or kosher but independently forbidden.
For example: - Forbidden fats (cheilev): A horse does not have forbidden fats subject to the penalty of karet. But if this creature is considered a kosher animal with an additional prohibition, then it would have cheilev forbidden on the level of karet.
- Shechitah and ritual impurity: A non-kosher animal remains impure even after ritual slaughter (neveilah). But if this animal is a kosher species with an added restriction, proper shechitah would remove its status of impurity. That is a major halachic distinction.
The Ritva in Niddah 51b also appears to hold that the signs are a cause, not just an indicator. When discussing why kosher fish require both fins and scales, the Ritva uses language that the signs are gorem—a cause—that generates the permissibility. This supports the view that the signs are what create the kosher status, not merely reflect it.
A fascinating example that touches directly on this debate appears in a Gemara in Chullin, which discusses a species of chicken known as the "Agma" chickens. The Gemara says that the males of this group are not kosher, but the females are.
Rashi explains that this refers to one species of bird, where the males are non-kosher and the females are kosher. This is difficult to accept logically, but it makes sense if you learn, like Rashi does, that the signs themselves are the cause of permissibility. As long as a particular bird has the signs, it is kosher—even if it belongs to a species in which other individuals are not.
However, Tosafos disagrees. They argue that it is not reasonable to suggest that one species can be half kosher and half non-kosher. They instead say there must be two species: one known as "male of Agma," which includes both male and female birds and is entirely non-kosher, and another called "female of Agma," also including both genders, and is kosher.
Rabbi Elchanan Wasserman (in Kovetz Shiurim) explains that this dispute hinges on our very chakirah. According to Rashi, who holds that the kosher signs are the cause, each individual bird is judged on its own: if it has the signs, it is kosher. But according to Tosafos, who hold that the signs are just simanim to identify kosher species, it is impossible for a single species to be split like that. Either the species is kosher or it is not.
Summary: A Fundamental Disagreement in the Nature of Kashrut We now have a clear disagreement among the Rishonim, echoing the Maharit's chakirah: - Rashi, the Ritva, and the Yad Eliyahu appear to hold that the kosher signs are a cause (sibah)—they create the status of being kosher. If an animal has the proper signs, it is kosher, regardless of its species.
- Tosafos, however, maintain that the signs are only a siman—an indicator. The true determinant is the species. If the species is not designated as kosher by the Torah, then the animal is not kosher, no matter how it looks.
Back to Our Question: Where Is the Lav According to Tosafos? Let's return to our original question: How does Tosafos hold that there is malkus (lashes) for eating a non-kosher animal like a horse, if the lav is based only on a kal vachomer (logical inference), and Tosafos appears to reject the rule of the Maggid Mishneh that allows deriving a lav from a kal vachomer when an aseh (positive commandment) is already present?
To review: the Rambam and Rashi cite a Midrash which explains that we know all non-kosher animals are forbidden from a kal vachomer based on the pig, which has only one kosher sign. The logic is: if an animal with one kosher sign is forbidden, then certainly an animal with none is forbidden.
But as we asked earlier, that should not create a lav, because the rule is "ein mazhirin min hadin"—we do not derive legal warnings (i.e., lavin) from logical inferences alone.
The Maggid Mishneh answers that since there is already an aseh (positive command) teaching us which animals are kosher, we may use a kal vachomer to extend the existing lav to other animals. But the Shaagas Aryeh demonstrates that Tosafos does not accept this principle. So how then can Tosafos still hold that there is malkus for eating horse meat?
To answer this, we can now apply the chakirah we've been developing throughout the article—whether the kosher signs (split hooves and chewing the cud) are a cause (sibah) of the animal's permissibility, or just a sign (siman) indicating which species are kosher. This distinction may hold the key.
A Brief Insight from Rav Shmuel Rozovsky Before we return to our case, let us briefly reference an insight from Rav Shmuel Rozovsky zt"l. In explaining a Gemara that forbids marrying a full sister (i.e., same mother and father), Rav Shmuel asks: why is an additional verse necessary to forbid this? After all, she is already forbidden as both a paternal and maternal half-sister.
He answers: a full sister is not simply "two half-sisters combined"—she is a different category entirely, with her own unique identity (shem issur). When something is forbidden because of a cause, its identity is defined by that cause—and a new combination creates a new status.
Now let's apply this to animals.
Why Rashi Needs a Kal Vachomer, and Tosafos Does Not If we assume, like Rashi and the Rambam, that the kosher signs are a cause (sibah)—meaning that lacking one sign causes the animal to be non-kosher—then it makes sense that we would need a kal vachomer: if one missing sign causes the status of non-kosher, certainly lacking both would. And then, of course, we run into the problem of "ein mazhirin min hadin"—we cannot derive a lav from logic alone. That's why Rashi and Rambam rely on the Maggid Mishneh's rule: once there's an aseh, we can extend the lav by kal vachomer.
But if, as we've shown, Tosafos holds that the signs are merely a siman—an identifier of which species are kosher—then the logic changes entirely.
According to Tosafos, a non-kosher animal is a non-kosher animal. It is not more or less non-kosher depending on how many signs it lacks. Once an animal lacks the defining signs of a kosher species, it is simply outside the permitted group—and there is no need for a kal vachomer to ban animals like horses. One sign is enough to identify it as non-kosher, and adding more signs (or lacking more signs) does not make the prohibition stronger.
To borrow again from our earlier analogy: if you see a label that says "poison," you don't need a second label to convince you not to drink. The presence of a single warning is sufficient. So too, in Tosafos's view, once we know from the Torah that an animal lacking one sign is forbidden, we already know that animals lacking both are also forbidden—not through a logical extension, but because the Torah is identifying the type.
Thus, Tosafos has no need for the kal vachomer, avoids the problem of "ein mazhirin min hadin," and can still maintain that eating such animals violates a full lav and carries the punishment of malkus.
In Conclusion According to Rashi and the Rambam, the kosher signs are a cause of permissibility, and therefore a kal vachomer is necessary to extend the prohibition—which demands the halachic workaround of the Maggid Mishneh.
But Tosafos, who holds that the signs are merely indicators, has no need for such logic. Once the Torah sets the boundaries of kosher species, any animal outside that category is simply not kosher, and a single missing sign is enough to establish that. There is no scale of treifness, and no need for logical derivation.
A horse is a horse—and a non-kosher animal is non-kosher, plain and simple.
A Modern Twist: Is There Such a Thing as a Kosher Pig? In 1984, an Associated Press news bulletin reported a remarkable claim: a species of wild pig known as the babirusa, native to Indonesia, was possibly a kosher animal. The report suggested that this animal had split hooves, like all pigs, but also allegedly possessed two stomachs and appeared to chew its cud—the two physical indicators required by the Torah for a land animal to be considered kosher.
The story quickly gained traction, appearing in many American newspapers and sparking discussion among poskim (halachic authorities). Could this be a case of a previously non-kosher animal becoming kosher? Might the babirusa be a newly discovered kosher species, long lost or misunderstood?
In truth, this would have been a perfect modern-day application of the Talmud's chakirah: If this pig now has the proper kosher signs, is it actually kosher, or is it still a pig with misleading features? Does it depend on whether the signs are a cause or just a sign? Interestingly, the Malbim already mentions this animal in his commentary, noting that while people claim it chews its cud, it does not. Later investigation confirmed this. The Los Angeles Zoo clarified that although the babirusa may appear to chew its cud, it does not actually do so. The animal simply resembles a kosher species, but halachically, the shailah was settled: there is no basis to consider it kosher.
May we be zocheh to approach every sugya—old or new—with depth, clarity, and yiras Shamayim. And may the learning of Torah continue to illuminate our lives with purpose, insight, and emes.
Wishing you a beautiful, uplifting, and restful Shabbos Kodesh, Rabbi Moshe Revah Rosh HaYeshiva, HTC - Beis HaMidrash LaTorah mrevah2@touro.edu
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