Ever min ha-chai [henceforth EMH], the prohibition against eating a body part that came off an animal while it was alive, seems to me an example of where people ascribe a reason to a Torah law the rules of the mitzvah itself contradict. In our case, I think many or most of us take EMH to be a cruelty prohibition, the Torah wanted to teach us not to mistreat animals by causing them the pain of dismemberment.

The first paragraph of AH Yoreh De’ah 62 already presents problems for that theory. EMH extends to full body parts only, says AH. Someone who eats a full body part that came off in the animal’s lifetime would get lashes, because Devarim 12;23 says not to eat a soul with its flesh, tradition teaching us to include body parts taken off with the “soul,” meaning while still alive.

If only meat came off, though, Chullin 102b tells us the prohibition is the issur terefah, loosely the impermissibility of meat from an animal that sustained certain kinds of wounds. In AH’s view, if a Jew eats both a full body part that came off while alive, as well as meat from that animal, s/he would be liable for two sets of lashes.

In case it needs to be said, taking off a whole body part does not seem significantly crueler than slicing a bunch of meat from a live animal.

The Special Status of an Ever

Rashi to Chullin 102b says the body part’s inability to regenerate makes it like a piece of the soul of the animal, impermissible while there is still life in the flesh. [AH doesn’t explain why meat wouldn’t be the same; if it is because meat regenerates, it’s not clear why it counts as terefah.] Cheilev, the prohibited fats of an animal, do regenerate, suggesting that Rashi would have thought cheilev taken out of a living animal should not be a problem of EMH.

Indeed, Ramban, cited by Rashba, thought Chullin 103a’s assertion of the inclusion of cheilev in EMH meant only kulya be-chalba, where a body part is mixed in. He had to be thinking Chazal were being inexact, since they say cheilev counts as EMH.

Rambam rules explicitly that cheilev itself would be EMH, AH tells us in se’if three, meaning the ability to regenerate was not his concern. AH suggests he saw cheilev as itself the soul, similar to blood (which the Torah explicitly designates the soul); if so, there are two levels to EMH, body parts, then blood and fats, themselves the building blocks of the original animal.

[This could explain why these are the two parts of an animal offered from all sacrifices. In se’if five, AH struggles with other aspects of Rambam’s view, e.g. his assertion EMH doesn’t apply to birds for non-Jews. I’m going to skip it here.]

A Pause to Consider Non-Jews

EMH also implicates non-Jews, who were told in Bereshit 9;4 not to eat flesh in its blood. In se’if four, AH points out interesting differences in how the rule applies to them and to us. Chullin 102a limited the prohibition to kosher animals and birds, because the verse says not to eat the flesh with the soul, implying we could eat the flesh without the soul. Non-Jews have no prohibited animals (once they are dead), meaning that, for them, EMH includes all living creatures.

On the other hand, just meat that came off a living animal would be allowed to a non-Jew, because (as we said above), it’s part of the prohibition of terefah, one they do not have.

(Two interesting asides in AH: he wonders about a question the Gemara raised, how the Torah permitted to us what it prohibited to non-Jews, a question that shows the Gemara’s assumption that Jews’ lives are universally stricter than a non-Jew’s. Tosafot Chullin 33a says we need not worry about it here, because Jews aren’t allowed to eat basar min hachai, meat from a live animal, they are only not allowed for other reasons, terefah. Good enough, apparently.

Second, he reminds us that a Jew could not give a non-Jew EMH if the non-Jew has no other access, because lifnei iver, the prohibition against leading others astray, includes non-Jews.)

Fish, Grasshoppers, Shechitah

In se’ifim seven and eight, AH deals with Rambam’s view limiting EMH to animals and birds. For fish and grasshoppers (for those Jews who still have a tradition about which locusts and grasshoppers are permitted), since there was no Torah-prescribed manner of killing, there is also no EMH rule. AH wonders whether non-Jews might have such rules, because they have no shechitah rules anywhere, no required way of killing any living beings for food, so maybe EMH covers all living creatures, for them.

Logical, the claim runs afoul of the principle noted earlier, anything prohibited to non-Jews must be prohibited to Jews, too. Rambam seems to disagree, seems to reject that Talmudic proposition, because he also disallowed non-Jews from eating meat right after shechitah, while the animal is still in its death throes (in the beginning of Laws of Shechitah, Rambam did ban Jews from such meat as well, but that’s because of the blood; if a Jew could remove the blood before the animal finished dying, the meat would be permitted from the moment of shechitah).

The Threshold Amount for Ever Min HaChai

In se’ifim 9-13, AH reviews Rambam and Tosafot’s views of how much of such a body part fully violates EMH, enough to incur punishment. Chullin 102a says a kezayit, an olive’s worth, because the Torah refers to achilah, eating. Except a kezayit should already be prohibited for being terefah meat (as we said above, and we do not add prohibitions of the same level of seriousness to existing ones). AH Laws of Prohibited Foods 5;2-3 focused on the difference between eating only meat or a whole body part.

Were it all meat, a kezayit of EMH is basically the same as terefah. Real EMH violation adds bone, sinews, and other elements of an organ, all counting towards the measure of an olive’s worth. Too, AH thinks the Jew must put the entire kezayit in his mouth at once, without cutting it into smaller parts, to keep it in the form it was while on the animal. Take away that form, it becomes basar min hachai, meat from a living animal, a different prohibition.

Tosafot Chullin 96 thought the Jew would have to eat an entire body part to be liable, because Devarim 12;23 bans eating the nefesh, the soul, and half an organ is not the nefesh, neither for removing, for Rambam, nor also for eating, for Tosafot. The idea of wholeness also explains Tur’s puzzling choice to explicitly prohibit lesser amounts of EMH, where there is a well-known principle of chatzi shi’ur, what the Torah prohibited is not allowed even in amounts less than needed for full violation. AH, se’ifim 13-14, says the usual chatzi shi’ur justification is chazei le-itztarufei, the less-than-punishable amounts can be put together to make a whole. With EMH, it’s not true, since the prohibition only happens when whole; therefore, Tur had to say it was nonetheless not allowed.

Let’s Define “Coming Off”

Off the animal means completely off. Partially attached body parts are not included by Torah law, despite the part’s never being able to regrow (although it is functionally no longer part of the animal). In se’if twenty, though, AH says there is a rabbinic prohibition against eating it, to ensure we not slip up and eat actual EMH. Chullin 73a says if the animal died on its own, this partially removed part will be considered full EMH, where proper slaughter to make the animal kosher would salvage this body part, too.

More surprising, to me anyway, are AH’s ideas in se’ifim nineteen and twenty-one. A body part completely cut away from the animal, but still inside of it, is and will always be EMH, even if the animal is later slaughtered properly. Here again, were it partially attached, it would be allowed by Torah law, although the custom is not to eat it because it is too similar to EMH.

A Cruelty Law?

I have not pointed out each time how these laws ignore cruelty questions. There is no dispensation made for cutting off a body part without pain (such as under anesthesia), or where it came off without human involvement. Too, the source verse focuses on eating; a Jew who vivisects an animal, with or without anesthesia, likely violates a Torah prohibition of tza’ar ba’alei chayim, cruelty to living beings, but has not come near EMH.

Last, remember AH’s idea that the fat counts as soul, putting the soul/life source front and center of this eating prohibition. I suggest, therefore, the issue here is the eating, not the cruelty. A live animal, or any representative constituent parts, organs, with bone, flesh, and sinews, cannot be eaten, it is not food until it is dead. Animals, we are being taught, are potential food, not food itself. To become food, it has to be killed, and dead.

A lesson about our food horizons, it seems to me.

Adapted from articles previously published on Torah Musings