This post continues this series on the Nishmablog that features responses on JVO by one of our two Nishma Scholars who are on this panel. This week's presentation is to one of the questions to which Rabbi Hecht responded.
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Question: If a medicine is applied to the skin near the mouth, and some is accidentally swallowed, is it a problem if the ingredients may not be kosher?
To properly answer your question, I really have to ask you what you
mean by a problem. Are you asking if this person has committed a sin?
Are you asking what someone should do in this type of situation? Are you
asking if medicine has to be kosher? To be honest, it is very strange
for me as a Rabbi to respond to a question framed in this manner. What
people generally ask me regards their behaviour – what they should do
given a certain set of facts. This may be your question as well; asking,
through this word ‘problem’, what should be done in such circumstances.
Framing the question in this way, though, does detract from what I
believe should be the focus of following Torah guidelines – i.e. our
behaviour.
Let us begin with the assumption that you are asking if the person in this case committed a sin. Sin within Halacha is somewhat similar to our criminal law system which generally demands mens rea, a certain type of criminal intent, for someone to be liable. This is not to say that this halachic concept of intent is fully similar to mens rea but it is clear that to commit a sin within the parameters of Halacha, there has to be a certain level in the intent or weakness in the concentration that surrounds an action.
One has clearly sinned if one does a forbidden act, with intent to
do such an act, knowing that it is forbidden. That is referred to in the
literature as meizid, intentional sin. One is also deemed to
have sinned if one is negligent in his/her duty to ensure that he/she
does not sin. This type of sin is referred to as shogeg, negligent sin. This case would seem to clearly not be a case of meizid,
as the person did not intend to swallow something non-kosher (We will
deal later with the question whether kashrut is even an issue in this
case). Would this then be a case of shogeg? This would involve
the question of whether the person took normative steps to ensure that
he/she would not swallow the non-kosher item (if kashrut is an issue)
given its proximity to the mouth. As this seems to involve medicine
which a person would naturally try to avoid swallowing, and from your
use of the word ‘accident’, we can perhaps assume that such steps were
also taken – thus it was through no fault of the person that this
non-kosher item was swallowed. In such cases, Halacha applies the term anoos, meaning non-responsible, and T.B, Nedarim 27a informs us that anoos Rachmana patur, that God does not hold an individual culpable for behaviour for which he/she had no control.
So if your question was whether this behaviour was a sin or not –
still putting off the issue of kashrut itself -- it would seem most
likely not, unless the person, knowing the item to be non-kosher and
that there was a possibility of swallowing it, was sloppy in putting on
the medicine and this resulted in the consumption. But, still, so what?
So this happened? The real question, thus, should be what to do and the
answer to this would be to do teshuva, repent. This would mean,
in this case, to consider and regret what one did and, in such
circumstances in the future, take steps to ensure that one is not
similarly sloppy.
This is still only part of the necessary discussion. Your question also states that there may
be non-kosher items in the medicine. This raises the question of how we
are to approach items when the kashrut of the item is in question. The
above discussion assumes we are dealing with an item that is not kosher.
Your question concerns an item that is not definitely non-kosher. Does
that change the response?
In addition, even if the item contained non-kosher items, does the
issue of kashrut even apply in such circumstances, to this type of
medicine? The kosher laws apply to foodstuffs and for something to be
defined as not kosher it has to meet certain standards of being edible.
Right from the beginning there would actually seem not to be an issue
for we are talking about some type of lotion and not a food product.
Assuming it not to be edible, the whole issue of kashrut would seem to
not even apply. On the other hand, we should still note, there is a
mandate also within the Halacha to take care of oneself (see Devarim 4:15)
and thus, if this lotion applied on the skin could make someone ill,
aside from a general health directive, there would also be a halachic
directive to try and put on the lotion without consuming it for one
could get sick thereby. Is there a problem? Yes and learn thereby to be
more careful.
What about the question of whether there really was a non-kosher
item in the item or not (assuming it to be food). Lack of surety
regarding a substance can, at times, indeed lead to a distinction in the
halachic conclusion. There are times when a substance for
which one is unsure of the kashrut is to be treated exactly the same as
if there was absolute knowledge that it was not kosher. There are other
times, though, where a question of surety of substance can yield a
different conclusion. The application of these laws, though, can be
complicated so I won’t go further into this topic at this time; my
purpose being to simply point out this issue.
There is, perhaps, one other concept I should also point out before
concluding. While our case here did not involve a foodstuff, there is
law involving food that has some application to the concepts we have
discussed. From what I have presented, we can conclude that eating
something not kosher is only a problem if done in a sinful manner, be it
meizid or shogeg. The fact that one consumed
something not kosher accidently is not a problem, i.e. the person has
done nothing wrong. There is a question in the literature, though,
regarding a Jewish baby nursing from a non-Jewish woman (with the
assumption that she has eaten non-kosher food, albeit, as a non-Jew, she
is permitted to do so) and/or a Jewish baby nursing from his/her mother
after the mother ate, with halachic permission because of illness, something not kosher. Even though no sin would be involved in this, Rema, Shulchan Aruch, Yoreh De’ah 81:7
still states that this should still be avoided if possible as
non-kosher items, even if consumed in a manner without sin, can still be
detrimental to our souls. Thus, pursuant to this viewpoint, when it
comes to issues of kashrut, our concern can even go beyond the issue of
sin. Others, however, still disagree with Rema’s view and permit the
nursing of a baby by a mother who, with permission, ate something not
kosher for such an item is only detrimental if its consumption is done
in sin. Further to our purposes, I would still like to point out that
Rema is still dealing with a question of behaviour. What should a
nursing mother do? You still don’t find a question of what to do with a
baby who nursed from a non-Jewish woman.
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