Rav Hershel Schachter famously questions the permissibility of all contemporary commercial milk, but the overwhelming majority of poskim, including Rav Asher Weiss (Teshuvot Minchat Asher 2:39-40), disagree. This issue is distinct from the Chalav Yisrael debate. According to the strict view, even Chalav Yisrael milk is forbidden.
Rav Hershel Schachter Shlita
Rav Schachter notes that we may drink milk because most animals are kosher. Thus, we may assume that the milk emerged from the majority (rov) of animals that are not treifah (“kol d’parish meiruba parish,” Chullin 11a and Y.D. 110:3). Rav Schachter said that this only applied in pre-modern times when people milked an individual cow which (due to rov) we may presume is kosher. However, a milk container’s contents nowadays come from dozens of cows. Rav Schachter argues that regarding one cow, we may assume rov, but you cannot rely on rov from many cows. If you have milk mixed from many cows, there is a statistical probability that some milk comes from a treifah animal. There is no rov because most of the time, a milk container nowadays contains treifah cows’ milk.
Rav Schachter’s argument seems compelling, so why do most poskim permit milk?
Rav Asher Weiss Shlita
Rav Asher Weiss argues that Rav Schachter confuses rov with statistical probability. Rav Asher Weiss believes that the statistical probability that there is milk from a treifah cow in the container is irrelevant. Rav Asher Weiss said rov means that the second milk leaves each cow, it is kosher, so when mixing all the milk, all the milk is kosher. This is how the concept of rov operates.
Rav Weiss brilliantly proves his point from an application of a Mishna in Machshirin (2:7). The Mishna states that if a baby is found in the streets of a city where most residents are Jewish, we may presume the baby is Jewish. This is another application of “kol d’parish meiruba parish.”
Rav Weiss develops the point: Imagine that over time, ten such male babies were found in a city where sixty percent of the residents were Jewish, and the ten gathered to make a Minyan. The Halacha regards this as a legitimate minyan of ten Jewish males despite the statistical likelihood that four out of ten minyan members are not Jewish.
Techeilet: Rav Schachter Vs Rav Asher Weiss
Rav Weiss (Teshuvot Minchat Asher 2:2-5) emphasizes distinguishing between the disciplines in his debate with Rav Schachter regarding the new Techeilet. Rav Schachter acknowledges that the evidence for the new techeilet is inconclusive. However, he argues “safek m’d’oraita l’chumra.”
Rav Schachter “translates” the doubt regarding the archeological evidence as a Halachic safek.
Rav Schachter compares “safek techeilet” to one who only has access to tefillin that are only safek kosher. The Mishna Brura (39:26) rules that we must wear such Tefillin (and omit the Bracha) since it is a safek about a Torah matter, for which we must be strict. So too, since the new techeilet is the only access we have to fulfill this Torah-level mitzva, we must wear it since we may achieve a Torah-level mitzva thereby.
Rav Weiss responds that there’s a difference between archaeological possibilities and Halachic doubts. Rav Asher Weiss agrees that the person should wear the tefillin in the Mishna Brura’s case because we know with certainty how to make the tefillin from an unbroken chain from Moshe Rabbeinu. One must wear Tefillin, even if we are unsure they match proper Tefillin if they are the only ones available. However, regarding techeilet, we are uncertain if what we have matches the original. The doubt surrounding the archaeological evidence does not suffice to reestablish the lost mesorah of the Techeilet.
Thus, what archaeologists regard as a “safek” does not qualify as a halachic safek. Once again, we see the importance of not confusing the languages of two different disciplines, halacha and archaeology.
Rav Dr. Jeremy England—Separating Languages
I discussed these two halachic debates with leading physicist Rav Dr. Jeremy England when he visited my home in March 2018. He compared Rav Weiss’s distinguishing between Halachic doubts and possible archaeological evidence to a cornerstone of his approach to discrepancies between physics and Torah regarding creation (a point to which Rav Weiss refers in his responsum). Rav Dr. England argues
(https://www.commentary.org/articles/jeremy-england/partly-predictable-world/) that Torah and physics have their own “language” and must be understood on its terms without unnecessary reconciliation. Rav Dr. England (personal communication) compared mixing the two disciplines as a sort of kilayim, a mixing of species meant to be separated. Statistical probability and rov are both correct but cannot be mixed.
In a very different context, Rav Yosef Dov Soloveitchik (in a celebrated address to Rabbinic Alumni in November 1975) stated:
“Can you psychologize mathematics? I will ask you a question about mathematics—let us take Euclidian geometry. I cannot give many psychological reasons why Euclid said two parallels do not cross, or why the shortest distance between two points is a straight line. If I were a psychologist I could not interpret it in psychological terms. And when it comes to Torah, which is Hakadosh Baruch Hu, all the instruments of psychology and history, utilitarian morality, are being used to undermine the very authority of the halacha.
To say that the halacha is not sensitive to problems, not responsive to the needs of the people, is an outright falsehood. The halacha is responsive to the needs of both the community and the individual. But the halacha has its own orbit, moves at its own certain definite speed, has its own pattern of responding to a challenge, its own criteria and principles.
Conclusion
Whether in the realm of halacha or hashkafa, a “havdala” is necessary to avoid blurring the boundaries between disciplines. Thus, despite the apparent cogency of Rav Schachter’s strict stance regarding contemporary milk, the consensus view (which, besides Rav Weiss, includes Rav Yisroel Belsky, Rav Zalman Nechemia Goldberg, and Rav Levi Yitzchak Halperin) permits consuming commercially produced milk.
Rav J. David Bleich (Contemporary Halachic Problems volume nine, chapter nine) concludes his discussion of this topic by noting:
Writing with regard to an entirely different subject, R. Moshe Feinstein, Dibberot Moshe, Bava Kamma, addenda, responsum no. 1, sec. 12, declares unequivocally that, in applying the principle of kol de-parish, each entity is to be regarded as a member of the major set “and there is not even one” that is a member of the minor set with the result that “sevarot bnei adam,” i.e., presumptions of the human intellect, are to be totally ignored. Rabbi Feinstein concludes with the sharp statement: “He who does not wish to rely upon … the law of parish me-rubba because of reasons of human intellect is as if he disputes the Torah, Heaven forfend.”
Rabbi Jachter serves as the rav of Congregation Shaarei Orah, rebbe at Torah Academy of Bergen County, and a get administrator with the Beth Din of Elizabeth. Rabbi Jachter’s 17 books may be purchased at Amazon and Judaica House.
