One Possible Reason to Permit *Possibly* Infested Fish

There are many reasons why ultimately such fish are permitted for consumption, such that one may indeed rely on the psak of Rav Belsky; and before him, Rav Moshe Feinstein; and before him, Chazal. I do eventually plan to discuss why, from a macro- rather than micro-level.

However, in this post I would like to offer a very speculative reason. And who knows? Maybe some people will find it compelling. Or maybe people will show me the folly of my ways.

What is the nature of the issur to eat these parasites? It is a pasuk, if I am not mistaken. In Shemini, in Vayikra 11:

9. Among all [creatures] that are in the water, you may eat these: Any [of the creatures] in the water that has fins and scales, those you may eat, whether [it lives] in the seas or in the rivers.		ט. אֶת זֶה תֹּאכְלוּ מִכֹּל אֲשֶׁר בַּמָּיִם כֹּל אֲשֶׁר לוֹ סְנַפִּיר וְקַשְׂקֶשֶׂת בַּמַּיִם בַּיַּמִּים וּבַנְּחָלִים אֹתָם תֹּאכֵלוּ:
10. But any [creatures]that do not have fins and scales, whether in the seas or in the rivers, among all the creeping creatures in the water and among all living creatures that [live] in the water, are an abomination for you.		י. וְכֹל אֲשֶׁר אֵין לוֹ סְנַפִּיר וְקַשְׂקֶשֶׂת בַּיַּמִּים וּבַנְּחָלִים מִכֹּל שֶׁרֶץ הַמַּיִם וּמִכֹּל נֶפֶשׁ הַחַיָּה אֲשֶׁר בַּמָּיִם שֶׁקֶץ הֵם לָכֶם:
11. And they shall be an abomination for you. You shall not eat of their flesh, and their dead bodies you shall hold in abomination.		יא. וְשֶׁקֶץ יִהְיוּ לָכֶם מִבְּשָׂרָם לֹא תֹאכֵלוּ וְאֶת נִבְלָתָם תְּשַׁקֵּצוּ:
12. Any [creature] that does not have fins and scales in the water is an abomination for you.		יב. כֹּל אֲשֶׁר אֵין לוֹ סְנַפִּיר וְקַשְׂקֶשֶׂת בַּמָּיִם שֶׁקֶץ הוּא לָכֶם:

These worms are sea creatures which do not have fins and scales. Now, Chazal may have mistakenly thought that these anisakis worms spontaneously generated, and were permitted for that reason. If so, then it could well be that their heter is in error and does not stand, and these worms in the flesh of fish should be forbidden. And as just discussed, this prohibition is a Biblical prohibition, an issur deOrayta.

Except we don't really know the worms are in any given piece of fish, do we? In any piece, or in any bite, it is a safek, a case of doubt.

However, there is a principle that safeik deOrayta leChumrah, that in any case of doubt involving a Biblical prohibition, we act stringently. But if it is a case of Rabbinic doubt, then safeik deRabbanan lekulah, we act leniently.

And since this is a safeik deOraysa, we must act stringently. Right?

There are different ways of understanding safeik deOraysa leChumrah. One is that a case of Biblical doubt is still Biblically forbidden, but the Chachamim did not institute such a stringency for their own enactments. Another way of understanding  it is that safek deOraysa lekullah, mideOraysa, that from a Biblical perspective, in case of doubt we may act leniently, but safek deOraysa lechumra, mideRabbanan, that Chazal instituted that one should act stringently in case of a doubt of Biblical prohibition. Which is why a sfek sfeka is permitted on a deOraysa -- the first safek transforms it to a Rabbinic prohibition, and the second safek is then a safek on a prohibition deRabbanan.

If so, then when I look at a piece of salmon, and I did not use a UV light on the raw fish before it was cooked to detect these worms, and I don't have a UV light and so am not going to easily find out, it is a case of safeik deOraysa. Therefore, as a din deRabbanan, we must refrain from eating it.

But wait one minute! The same Chazal who said safek deOraysa leChumrah also maintained that even if these particular worms were found in the flesh certainly, they would be permitted! So if you want to go by Torah law, they are permitted. And if you want to go by Rabbinic law, they are also permitted! הפה שאסר הוא הפה שהתיר! Or הם אמרו והם אמרו! Acting based on a mistake in Chazal when it is a Rabbinic matter does not concern me so much as when it is about a Biblical matter. I think we have a lot more wiggle room.

Of course, one could counter that since Chazal's heter of the vadai case is in error, and we cannot eat it, the heter in the safek case would also fall. And then we should apply, ourselves, the principle on a deRabbanan level, and create an issur deRabbanan which did not exist in the time of the Rabbanan.

The case for eating such fish does not rise or fall on adopting what is here presented as a mere suggestion of how to proceed. That lies elsewhere, I believe. However, I thought this was an interesting idea to share. Dear readers, what do you think?

Note: This post is not intended to be halacha leMaaseh. Don't act based on anything you see on the internet, leHalachah.