Insights into Halacha

For the week ending 5 November 2011 / 7 Heshvan 5772

Fish with Legs?!

by Rabbi Yehuda Spitz
The Color of HeavenArtscroll

In last week’s parsha, Parshas Noach, we read about how G-d brought the Great Flood and destroyed all living creatures, save for those inside Noach’s Ark[1]. The fish in the oceans were spared as well[2]. It would be fascinating to find out on which side of the Ark a “fish with legs” would have been. Would it have been considered a fish or an animal? Far from being a theoretical question, this actually happened almost 400 years ago, when a certain Rabbi Aharon Rofei (perhaps Rabbi Dr.?) placed such a fish, known as a Stincus Marinus, in front of the then-Av Beis Din of Vienna, the famed Rabbi Yom Tov Lipman Heller, author of such essential works as the Tosafos Yom Tov, Toras HaAsham and Maadanei Yom Tov, and asked for his opinion as to the kashrus status of such a “fish”, unknowingly sparking a halachic controversy.

What is a (Kosher) Fish?

It is well known that a kosher fish must have both fins and scales[3]. This “fish” actually has scales, but legs rather than fins. Yet, that alone would not make it non-kosher, as Chazal set down a general rule that “Whatever has scales has fins as well[4]”, and is presumed to be kosher. This means that if one should find a piece of fish that has scales noticeably present, one may assume that since it has scales, it must therefore have fins as well, and is consequently considered kosher. This ruling is codified as halacha by the Rambam, as well as the Tur and Shulchan Aruch[5].

As for our Stincus Marinus, which had scales but legs instead of fins, the Tosafos Yom Tov[6] opined that this “fish” cannot be considered kosher, as the above-mentioned ruling was referring exclusively to fish and not sea creatures. Since the Stincus Marinus has legs instead of fins it could not be considered a fish, and must therefore be non- kosher. Many authorities agreed with this ruling and considered the Stincus Marinus an aquatic creature and not a true fish and decidedly non-kosher[7]. This is similar to the words of the Rambam[8] that “anything that doesn’t look like a fish, such as the sea lion, the dolphin, the frog and such - is not a fish, kosher or otherwise.”

However, the Pri Chadash[9] rejects the opinion of the Maadanei Yom Tov and maintains that Chazal’s rule that “whatever has scales also has fins, and is presumed kosher” applies to all sea creatures, not just fish, and actually rules that the Stincus Marinus is kosher, whether or not it is considered a true fish.

The Bechor Shor[10] offers an alternate interpretation, that although it would be considered a sea creature, the Stincus Marinus should still indeed be considered kosher. Even though this “fish” has no true fins, still, its feet are equivalent to fins, and accordingly, it fits the halachic definition of a fish!

Rule of Thumb

Rav Yonason Eibeshutz[11], although agreeing in theory with the Pri Chadash that Chazal’s rule meant to include all aquatic life and not just fish, conjectured that possibly said rule was not meant to be absolute; rather it was meant as a generality. Generally, if a fish has scales one may assume it will also have fins. This does not, however, exclude the possibility of someday finding a fish which does not. According to this understanding, apparently the Stincus Marinus would be considered such an exception to the rule and therefore non-kosher.

In contrast to this understanding of Chazal’s statement, the Taz[12]declared, “No fish in the world has scales but no fins”, meaning that Chazal’s rule was meant to be unconditional, and, consequently, by definition there cannot be an exception. Most authorities agree to this understanding, with many of them ruling accordingly that the Stincus Marinus is indeed kosher based on this, since it did actually have scales[13].

Scientifically Speaking

A scientific study published in 1840 by Rabbi Avraham Zutra of Muenster identified the Stincus Marinus as a terrestrial creature, related to a poisonous toad[14]. Similarly, the Chasam Sofer[15] wrote that he accepted the findings of “expert scientists” who confirmed that the Stincus Marinus is not actually a sea creature at all. Rather, it lives on the shore and occasionally jumps into the water, as does the frog. According to both of these Gedolim our “fish” is most definitely not a fish, rather a sheretz (non-kosher crawling land animal), thereby making the entire preceding halachic discussion irrelevant, as the Stincus Marinus would not fall under the category of Chazal’s statement, and would thereby be 100% non-kosher. The Kozeglover Gaon[16] actually uses this "fish" as testimony to the Divinity of the Torah, as the only known exception to Chazal's rule turned out to be not a fish at all, but rather a lizard[17]!

On the other hand, not only does the Darchei Teshuva[18] not accept Rabbi Avraham Zutra’s scientific study, but even writes a scathing response that he does not understand how one can place these findings from non-halachic sources between teshuvos haGeonim without a clear proof from Chazal or Poskimsherak mipeehem unu chayim”. Accordingly, this opinion of the Darchei Teshuva would also invalidate the conclusion of the Chasam Sofer, for although the Chasam Sofer agreed with the Maadanei Yom Tov’s conclusion that the Stincus Marinus is not kosher, his claim that it is not a true sea creature is based on “scientific experts”. Therefore, this scientific analysis that the Stincus Marinus be considered a toad or lizard may not actually be accepted by all.

So was the strange looking sea creature swimming in the ocean outside the Ark or was it found within? It seems like we probably will never know the answer, although it certainly is fascinating that it depends on how it is classified halachically!

The author would like to acknowledge the article which appeared in the Kolmus (Pesach 5769 - Fish Story) by R’ Eliezer Eisikovits, which served as the impetus for my interest and research for this article.

[1] Bereishis (Noach) Ch.7:21 - 23.

[2] Midrash Bereishis Rabbah 32, 9; Rashi on Noach Ch. 7: 22, s.v. asher.

[3] Vayikra (Shmini) Ch.11:9 - 13; Devarim (Re’eh) Ch. 14: 9 - 10.

[4] Mishna Nida 51b, Gemara Chullin 66b.

[5] Rambam Hilchos Maachalos Asuros Ch.1, 24; Tur/Shulchan Aruch Y”D 83, 3.

[6] Maadanei Yom Tov on Chullin 66b, 5.

[7] Including the Mahar”I Chagiz (Shu”t Halachos Ketanos vol. 1, 255, and vol 2, 5; cited in Shiyurei Bracha 83, 1), the Knesses HaGedolah (Y”D 83, Haghos on Tur 6), Rav Yaakov Emden (Siddur Yaavetz, Migdal Oz, Dinei Dagim 8 & 9; quoted in the Darchei Teshuva 83, 27 - 28), the Malbim (Parshas Shmini, 80; that a sea creature with four legs is not considered a fish, rather a non-kosher “Chai HaYam”), and the Aruch Hashulchan (83, 10).

[8] Rambam Hilchos Maachalos Assuros Ch.1, 24.

[9] Pri Chadash Y”D 83, 4.

[10] Bechor Shor, in his commentary to Chullin 66b, cited in the Darchei Teshuva above. He actually wrote that the whole disagreement was a colossal misunderstanding, and all opinions would agree with this.

[11] Kreisi U’Pleisi 83, 3. This is also the understanding of several other authorities including the Yeshuos Yaakov (Y"D 83, 2), the Shoel U’Meishiv (Shu”t, first edition, vol 3, 54) and HaKsav V’HaKabbala (Vayikra 11:9, cited in Kolmus - Pesach 5769 - Fish Story by R’ Eliezer Eisikovits).

[12] Taz Y”D 83, 3.

[13] Including the Pri Chadash (cited above), the Chida (Machazik Bracha Y”D 83, 7 and Shiyurei Bracha Y”D 83, 1), and the Kaf HaChaim Y”D 83, 6 and 15). The Pri Megadim (Y”D 83 M.Z. 2; see however Mishmeres Shalom Be”d 3how he attempts to answer the Pri Megadim) and the Maharam Shick (in his commentary on the Mitzvos, Mitzva 157, brought in Darchei Teshuva above) maintain this way as well, however they do not definitively rule on the kashrus status of this “fish”. The Aruch Hashulchan (Y”D 83, 5) and his son the Torah Temima (Shmini Ch. 11: 9, 32) also held this way, that this rule is Halacha from Sinai, yet the Aruch Hashulchan himself still ruled that it is non-kosher, as he considered it a sea creature, not a fish, like the Rambam. The Eretz Tzvi (see footnote 16) as well, although maintaining that it is not kosher for a different reason, writes very strongly that this rule of Chazal is absolute, and is testimony to the Divinity of the Torah.

[14] Shomer Tzion HaNe’eman vol. 91, pg 182, cited in Darchei Teshuva above without quoting the author, as well as cited in Kolmus (Pesach 5769 - Fish Story by R’ Eliezer Eisikovits) without citing the source.

[15] Chasam Sofer, in his commentary to Chullin daf 66b s.v. shuv.

[16] Eretz Tzvi on Moadim, Yalkut HaEmuna, Maamar Sheini, Inyan Sheini ppg. 251 - 252.

[17] Scientifically, it appears that the Stincus Marinus is a misnomer, as it is deemed a lizard from the skink family, known as a Scincus Scincus, or a Sandfish Lizard. Although non-aquatic, it has been proven in the prestigious Science journal (vol. 325, July 17, 2009, ina published study by Daniel I. Goldman, “Undulatory Swimming in Sand: Subsurface Locomotion of the Sandfish Lizard”) via high speed X-ray imaging that below the surface, it no longer uses limbs for propulsion but “generates thrust to overcome drag by propagating an undulatory traveling wave down the body”; in other words it “swims” through the sand beneath the surface. See related article on titled “The Secret of the Stincus”.

[18] Darchei Teshuva 83, 28.

For any questions, comments or for the full Mareh Mekomos / sources, please email the author:

Disclaimer: These are just a few basic guidelines and overview of the Halacha discussed in this article. This is by no means a complete comprehensive authoritative guide, but rather a brief summary to raise awareness of the issue. One should not compare similar cases in order to rules in any real case, but should refer his questions to a competent Halachic authority.

Disclaimer: This is not a comprehensive guide, rather a brief summary to raise awareness of the issues. In any real case one should ask a competent Halachic authority.

L'iluy Nishmas the Rosh HaYeshiva - Rav Chonoh Menachem Mendel ben R' Yechezkel Shraga, Rav Yaakov Yeshaya ben R' Boruch Yehuda, and l'zchus for Shira Yaffa bas Rochel Miriam and her children for a yeshua teikef u'miyad!

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