Wednesday, October 27, 2004

A response to Rabbi Dr. David Berger

In one of the blogs I check regularly, the Town Crier, I saw an excerpt of an article in the Jewish press by David Berger about the issue of the copepods in New York city water. I have been meaning for a while to post something comprehensive about copepods, but have not gotten around to it. I read Dr. Berger's article, and I feel I must respectfully disagree with him on some of the points he makes.

1) Dr. Berger talks about how since water is such a staple, it is conceivable that "Even in an urban setting, it is easy to envision realistic scenarios involving jeopardy to the health of especially vulnerable observant Jews." I don't know how likely this (in cases of pikuach nefesh obviously the water would be OK, this is restricted to places where there is a metziut that must be worried about, and there are alternatives to non-filtered water), nor is this something that should necessarily influence the determination of whether something is or is not an issur diorayta. Note that Chazal talk about not drinking water from moving streams which have small non-kosher fish in it, and they probably strained such water to remove these creatures. The Aruch Hashulchan (Yoreh Deah Aleph, Siman 84:36-37) talks about a requirement to filter such water for the tiny creatures therein, as well as filtering for Pesach, so in the past they did not hesitate to forbid water. (Water which was left uncovered is another tempting example if not for the fact that the reason it is forbidden is because of safek sakana itself.) Other staples have been forbidden - chalav akum, stam yeinam, pas akum (though for the last in certain areas and times Chazal relaxed part of the prohibition perhaps because otherwise people would not have access to the staple.)

2) He points out this is not a new phenomenon, and "the almost universal, instinctive reaction that water imbibed over the years by a host of tzaddikim and talmidei chachamim must be permissible does not deserve to be dismissed as irrelevant." He cites the Talmudic dictum that if the animals of tzadikim (such as donkey of Rabbi Pinchas ben Yair who did not eat tevel) would not come to stumble then certainly not the tzadikim themselves. To show this is not merely an aggadic statement he cites Tosafot on Chullin 5b who speaks about it in a legal context and restricts it to the consumption of forbidden foods.

There are two answers to this, I think. Not every faucet receives copepods. Depending on the specific structure of the pipes, floor in the building, position of the house/apt. on the block, copepods may or may not reach the faucet at all or in sufficient amounts so as to pose a problem. Further, the prevalence of copepods vary with the seasons of the year. So it is possible that Hashem arranged it so that via fate, chance, and season, the tzadikim of the previous generation did not come to consume the forbidden.

Secondly, if you look at the Tosafot, it ends with a case in which Rabbi Zera did in fact eat tevel and in answer to the seeming contradiction, a statement by Rabbi Zera about yeridat hadorot - originally Rabbi Zera said that if the preceding generations were like sons of angels we are like sons of man, and if the preceding generations were like sons of man, we are like donkeys. Now, in response to this incident, Rabbi Zera (elsewhere it is Rabbi Mana) said that nowadays we are not even like the donkey of Rabbi Pinchas ben Yair (who did not eat tevel). Thus, there seems to be a yeridat hadorot from the Tanaaim and early Amoraim to the late Amoraim. The great ones of the last generation, while fantastic tzaddikim, are after all acharonim, and not even late Amoraim, so why assume they are afforded this protection, and consider this a basis for determining halacha?

To cite the gemara, which Tosafot refers to in Bereishit Rabba and Shekalim, but I will take from yerushalmi demai 3b:
רבי ירמיה שלח לרבי זעירא חדא מסאנא דתאנים דלא מתקנא
והוה רבי ירמיה סבר מימר מה ר' זעירא מיכול דלא מתקנא
והוה רבי זעירא סבר מימר מה אפשר דרבי ירמיה משלחה לי מילא דלא מתקנא
בין דין לדין איתאכלת טבל
למחר קם עימי' א"ל ההוא מסנאתא דשלחת לי אתמול מתקנא הוה?
א"ל אמרית מה רבי זעירא מיכל מילא דלא מתקנה?
א"ל אוף אנא אמרית כן הוה מה רבי ירמיה משלח לי מילא דלאו מתקנה?
רבי אבא בר זבינא בשם רבי זעירא אמר אין הוון קדמאי בני מלאכים אנן בני נש ואין הוון בני נש אנן חמרין
אמר רבי מנא בההיא שעתא אמרין אפי' לחמרתיה דר' פינחס בן יאיר לא אידמינן
Rabbi Yirmiyah sent to Rabbi Zera a basket of figs that was not fixed {was tevel}.
And Rabbi Yirmiyah thought to say: what, will Rabbi Zera eat without fixing it.
And Rabbi Zera thought to say: is it possible that Rabbi Yirmiyah will send me something not fixed?
Between this and that, tevel was consumed {by R Zera}.
The next day, he met him and said to him: the basket you sent me yesterday, was it fixed?
He said to him: I said: would Rabbi Zera eat something that was not fixed. {he would take off the required terumot and maaserot}
He said to him: so too did I say: What, would Rabbi Yirmiyah send me something that was not fixed?
Rabi Abba bar Zevina cited Rabbi Zera {who was the person who ate the tevel here} who said: if the First Ones were like children of angels, we are like men. And if they were like men then we are like donkeys.
Rabbi Mana said: At that hour {when Rabbi Zera accidentally ate the tevel} they said, even like the donkey of Rabbi Pinchas ben Yair we are not comparable. {The gemara continues by explaining how his donkey did not consume forbidden food.}
3) Dr. Berger adds another issue. The Torah was not given to angels, and so truly microscopic organisms should not present a problem, as was stated in previous permissive rulings. From mattan Torah until the invention of the microscope the existence of microscopic creatures could not be known. Copepods are a distinct situation but are similar in nature. A trained observer can spot it, but otherwise most people for "generations" would not spot it, and it looks like a glass of clear water.

In response, I would point out that the Aruch HaShulchan is one source that said there was no problem with microscopic creatures, because the Torah was not given to angels, and so anything the eye does not rule over presents no problem. However, he writes that if it is visible to the naked eye, even if is is incredibly tiny and even if it is only visible in direct sunlight, that is considered something the eye rules over, would therefore present a problem, and would need to be filtered just as some Jews filtered their water on Pesach. (I will cite it in full shortly.) This seems to directly address Dr. Berger's point, such that the two cases are to be distinct from each other in law.

Further, it is not necessarily so that people could not spot it for generations. There is an important distinction to be made between water with live copepods and water with dead copepods. When the copepods are alive, they move, and are readily visible. For generations, up to the time of the Tanaaim, and in Europe, there were live copepods. In New York, because of the nature of the the water system and the water treatment, the copepods, while not filtered out, are dead by the time they reach the faucet. As such they are not as readily visible. But in the past, if you go aenough generations back, they were most likely visible, just as they are readily visible if you were to go right now up to the reservior yourself and look.

The first scientist to describe a copepod was Aristotle, though this was a parasitic one, which is larger than the free range copepods we find in our water. But when this whole business started I took out on interlibrary load the book "The Copepodologist's Cabinet" which contained a history of copepodology. Even without microscopes, people saw sometimes silvery of red pools of water which was a mass of copepods. A 17th century scientist did a survey of various water sources in his area and noted the copepods and small marine plants in it. He suggested that people boil the water to create a soup, or else to filter the water through hat felt.

Dr. Berger points out that copepods are present in lake water and have been for centuries, but firstly a lake is non-moving water and so the copepods would likely be permitted on the basis of Chullin 66, and further such copepods would be alive and thus visible.

4) He points to the paucity of halachic literature on the issue says that it "underscores the obvious: in almost all cases, these Jews drank the water in question without noticing anything amiss."

I would answer that Chullin 66 is halachic literature on the subject, and it is brought down in Shulchan Aruch. The Aruch HaShulchan dealt with the issue and ruled that people should filter the water. I am not sure we can call this a paucity of halachic literature. Perhaps he means a paucity of literature about creatures which are at one point visible and later not visible - and now looks like a clear glass of water. After all, what prompted his article was in part the recent psak that once the copepods are visible once, they are considered a sheretz and present a problem even if no longer visible.

If this is in fact a new issue, we would not expect much halachic literature on the subject.

I would also note that it is not clear we should say they are not visible, based on the Aruch HaShulchan I mentioned. Here, by the way

I will end by citing the Aruch HaShulchan I mentioned above: This was written by Rav Yechiel Michel Epstein, born 1829, passed away 1888. So it is fairly recently that this issue came up.
לו: יש מי שכתב בשם חכמי הטבע דהמסתכל בזכוכית המגדלת שקורין ספאקטיוו"א יראה בחומץ מלא תולעים והנה בחומץ אין חשש כמו שנתבאר דהתולעים המתהוים בתלוש התירה התורה. אמנם שמעתי שבכל מיני מים וביחוד במי גשמים מלא ברואים דקים שאין העין יכולה לראותם. ובילדותי שמעתי מפי אחד שהיה במרחקים וראה דרך זכוכית המגדלת עד מאד כרבבות פעמים במים כל המיני ברואים, ולפי זה איך אנו שותים מים, שהרי אלו הברואים נתהוו במקורם, אמנם האמת הוא דלא אסרה תורה במה שאין העין שולטת בו, דלא ניתנה תורה למלאכים, דאם לא כן, הרי כמה מהחוקרים כתבו שגם כל האויר הוא מלא ברואים דקים מן הדקים, וכשהאדם פותח פיו בולע כמה מהם, אלא וודאי דהבל יפצה פיהם, ואף אם כן הוא כיון שאין העין שולט בהם, לאו כלום הוא. אמנם, במה שהעין יכול לראות, אפילו נגד השמש, ואפילו דק מן הדק, הוא שרץ גמור

לז: ולכן, יש ליזהר מאד בקיץ באותם ששותים מן הנהרות ומן האגמים ומעינות שאינם עמוקים דעל ידי החמימות נתהוו שם כמו זבובים קטנים ותולעים קטנים, ויש ליזהר לסנן המים במסננת דקה מן הדקה, או על ידי בגד, בדרך שאנו מסננים המים בפסח מפני חשש תערובת חמץ, אבל בבארות ומעיינות עמוקים אין הרחש מצוי בהם

36: There is one who writes, citing naturalists, that if one looks with a magnifying glass that they call spectiva he will see in the vinegar, full of of worms. And behold, in vinegar there is no concern, as was explained, that worm which come into being detached {J: presumably not attached to the ground} the Torah permits. However, I have heard that in all types of water, and specifically in rainwater, is filled with tiny creatures that the eye is not able to see them. {J: That is, they are not visible to the naked eye.} And in my youth I heard from one who was abroad and saw via a magnifying glass, many times in the water, all types of creatures. And, according to this, how can we drink water? For these creatures come into existence in their source!? However, the truth is that the Torah did not prohibit that which the eye does not rule over {J: that which is not visible to the naked eye}, for the Torah was not given to angels. For if not so, behold many of the investigators have written that also all of the air is full of finer than fine creatures, and when a man opens his mouth he swallows many of them. Rather, certainly they speak nonsense. And even if it is so, since the eye does not rule over them, they considers as if nothing. However, in that which the eye does rule over {J: what is visible to the naked eye}, even if only with direct sunlight, even finer than fine, is considered absolutely a Sheretz.

37: And therefore, there is to be very careful in the summer, for those who drink from rivers and from swamps and springs that are not deep, since via the heat there will cause to be there like small flies and small worms. And there is to be careful to filter the water with a filter, finer than fine, in the manner that we filter the water on Pesach because of the concern of a mixture of Chametz. But in the deep wells and springs the creeping creatures are not found in them.
5) Just because we cannot see something, or just because only a trained expert can detect something (this may not in fact be the metziut by copepods) does not mean that it has no halachic significance. Consider that some items are not halachicly nullified even in a ratio of 1 to 1000. And consider that when something is nullified in a 60 times its measure, this is because it no longer gives its taste. To determine whether something does give taste, they sometimes gave it to a non-Jewish chef, a קפילא ארמאה, who is an expert in detecting the presence of tastes in food (see e.g. Chullin 97a). Thus sometimes food can be prohibited if the forbidden within it is only detectable to a "trained observer." (I do not think Dr. Berger meant to imply otherwise - he was at the time speaking of whether there was a muit hamatzui of people in past generations who would know about the issue of these copepods, which is another matter entirely.)

6) I would end with a great source my friend Eliyahu brought to my attention. Apparently, the Perushim, Pharisees, were filtering their water for gnats in the days of Jesus, and are criticized by him for being hypocritical - specifically, for focusing on the minutia when what he felt were more major issues were ignored.

The quote can be found in Matthew 23:24:
"Ye blind guides, which strain at a gnat, and swallow a camel."

It seems then that there is a very ancient precedent for filtering water for fear of consuming bugs.

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