Your question really has two parts.

QUESTION 1:

What could be the difference between bird meat and animal meat from the aspect of the Isur of Basar B'Chalav?

QUESTION 2:

How did such a Safek ever arise in the transmission of the Mesorah?

I shall address your questions one at a time.

ANSWER 1:

(a) We have to start from the premise that this is a Chok and we are unable to fathom the Chukim. See Ibn Ezra (Shemos: 23:19) who writes about Basar b'Chalav, "We have no need to seek a reason for this prohibition, since it has been hidden from the eyes of the wise." So too, Rabeinu Bachya there, "It seems that the reasons [that were suggested for this Mitzvah] are not sufficient, and they are not the real reasons for the Mitzvah but rather ways to push off those who ask for reasons. Rather, this Mitzvah is one of the "Chukim," like Parah Adumah and the Sa'ir ha'Mitshtale'ach.... Our sages maintain that [the reason for] this Mitzvah is one of the hidden secrets of the Torah... this Mitzvah contains a deep secret ("Sod")...."

(b) Nonetheless, as it is not called a "Chok" in the Torah, we are permitted to examine it to endeavor to ascertain its logical basis (cf. Or Ha'Chayim, Bamidbar 5:15, regarding the procedure in connection with the Sotah, who writes "I see that the verse did not write here the word "Chukah," to stop a person from asking and to tell him 'do not ask'.")

In our publication, HaMeir (sheet no. 220) I discussed the various reasons given for this Isur. There were eight in total enumerated there:

1. Rambam (in Moreh Nevuchim 3:48) - as a Harchakah from Avodah Zarah; Rabbeinu Bachya, loc. cit. elaborates on this view.

2. Seforno and others - to avoid Darkei ha'Emori and idolatrous belief in increasing fruit productivity.

3. Chinuch (Mitzvah #92) and Rekanti - to avoid magic and sorcery.

4. Kli Yakar and Rav S. R. Hirsch - It is akin to Kil'ayim.

5. Ibn Ezra - To avoid cruelty to animals, akin to the prohibition of Oso V'es Beno, and Shilu'ach ha'Ken.

6. Rabbeinu Bachya - to avoid "Timtum Halev" ("thickening the heart") and creating in ourselves cruel characteristics, akin to the prohibition of ingesting blood.

7. Ralbag - for health reasons. As he writes, "Anyone who has studied nature as medicine will realize that the mixture of foods with disparate digestive propensities is bad for the system, for what is digested first damages what follows...."

8. Another suggestion of Ralbag - to teach us Hakaras ha'Tov; we may not utilize a life-giving food such as mother's milk to cook the mother in it. That is why the verse associates Basar b'Chalav with Bikurim. The Mitzvah of Bikurim is also meant to ensure that we show appreciation and Hakaras ha'Tov to Hash-m.

Now it will be pretty clear that many of the above-stated reasons are inapplicable to bird meat. Presumably that was not used for the idol worship or the magic. Reasons #4 and #5 seem to be inapplicable as well, and perhaps reasons # 6 and #7 are also not relevant. Reason #8 is certainly irrelevant.

(c) However, even without this rationalization we can simply fall back on the Chok reason. Just as the prohibition of eating Chelev (prohibited fats) applies only to Chelev of a Behemah and not to that of a Chayah or bird, and so, too, the Mitzvah of Kisuy ha'Dam applies only to Chayos and Birds but not Behemos, so, too, the prohibition of Basar b'Chalav can be restricted to exclude birds simply because the Torah indicates this, according to Rebbi Akiva and Rebbi Yosi ha'Gelili. (As for the final Halachah of whether bird meat is prohibited mid'Oraisa or mid'Rabanan, see Shach YD 87:4, regarding the argument between Tosfos Chulin 104b DH "Of" and 113a DH "Basar" and the Rosh there.)

ANSWER 2:

(a) It must be realized at the outset that not very long ago there were no media, no Internet, no TV, no radio, no newspapers, no telephones - no means of instant communication. One cannot compare the method of transmission of the Mesorah as it takes place today with the way it occurred in the past.

Historically when Bnei Yisrael were comfortably settled in the Holy Land, each tribe passed on by means of word of mouth and example its traditions, its methods of service to Hash-m, and the Minhagim which developed in their own territory. (Even in the times during which, according to the Tanach, Klal Yisrael neglected the Torah, there were always Nevi'im to correct them and a significant body of righteous Talmidei Chachamim. Examples of this are Ovadyah and the Chachamim he hid in the caves, and Elisha and his Bnei Nevi'im, even at the time of Achav and Izevel and the other wicked Kings of Israel. Moreover, the people of Malchus Yehudah in the south were generally much better than their brethren in Malchus Yisrael in the north. Yoshiyahu could turn to Yirmeyahu etc.)

(b) The main fundamentals therefore remained standard, although matters of detail or of sporadic occurrence might have deviated slightly. However, should any major issue erupt it would have been taken to the Sanhedrin ha'Gadol for final determination; see Sanhedrin 88b, "At first, there were no great arguments in Israel. Rather, the Beis Din of 71 judges (i.e. the Sanhedrin) sat in the Lishkas ha'Gazis [and ruled on debated matters]... if they knew the Halachah, they would tell them, if not, they would vote on the matter..."

It is true that even in earlier times controversies occurred. For example Sha'ul and David argued whether Kidushin takes effect with a Milveh u'Perutah, and Chizkiyah announced a leap year at the beginning of Nisan (Sanhedrin 19b, 12a). Similarly, we find in Megilah 3a that "they forgot them [i.e. how to write the letters Kaf, Mem, Nun, Tzadi and Peh] and later re-instituted them." We also hear in Temurah 16a of Osniel ben Kenaz bringing back 1700 Kal V'Chomers and Gezeirah Shavahs etc. which had been forgotten during the mourning period for Moshe. And we find the argument between Boaz and Tov, and later between the Torah leaders during the time of Sha'ul and David, as to whether female Amoniyos and Mo'aviyos are to be permitted to marry in to Israel.

Nonetheless, all of these arguments were resolved by the Sanhedrin ha'Gadol. (See also Tosfos Chagigah 16a DH "Yosi" and Tosfos Yeshanim, Yoma 59a, (printed on 59b) DH Sheni.) It was only from the time of the Zugos that Machlokes started. The initial dispute was over Semichah on Yom Tov (Chagigah 16a), and after the times of Hillel and Shamai the Mishnah is full of arguments. This came about because of the turbulence and persecutions of the time. Commencing with the decrees of Antiochus, the scholars were exiled and scattered to various places. The Land remained in turbulence and upheaval thereafter. (See the our online resource http://www.dafyomi.co.il/chulin/discuss/chul-104qa1-tnation.htm for a copy of "Torah Nation," by Harav Avigdor Miller, Z'L, p. 213, on this matter.)

(c) In fact, it is remarkable how much of the Torah remained intact. On most basic issues there was unanimity. See Rambam, in Perush ha'Mishnah to Menachos 4:1, who writes, "The laws of Tzitzis and Tefilin and Mezuzah and the way they are made and the Berachos made on them and all of the laws that apply to them... were well-known at the time of the compilation of the Mishnah, since they were well-known and commonly practiced by all. This is why the author of the Mishnah did not find it necessary to discuss them, just as he did not outline the text of the daily prayers... ."

I used this Rambam in Pearls of Light, vol. 2 p. 21, to explain the omission of the law of Chanukah from the Mishnah. (See the our online resource http://www.dafyomi.co.il/chulin/discuss/chul-104qa1-pearls.htm for a copy of the full quote.)

This was true also in the case of Basar b'Chalav with birds, or in the case of the argument between Rashi and Rabeinu Tam regarding Tefilin; the basic Halachah was left without question. Everyone knew that Tefilin were to be square and black and not made of metal or non-kosher animal skin, and everyone knew that there was a prohibition of cooking meat and milk (and not merely a kid in its mother's milk). However, with regard to certain aspects doubts arose - in the above cases, the correct order for placing the Parshiyos in the Tefilin was in question (but not which Parshiyos), and in the case of Basar b'Chalav, the extent of the prohibition, for example whether birds were included and whether they were mid'Oraisa or mid'Rabanan. This is the same as the other arguments regarding numerous minutiae and details with which Shas is replete.

Remember that there was no hot line from Rabbi Elyashiv in Jerusalem to Reb Chaim in Bnei Brak to Reb Moshe in New York to Dayan Ehrentreu in London! Nor was there any Internet connection to Rabbi Kornfeld in Jerusalem or to me in London. There was complete segregation.

That is how Sephardic, Teimani, Ashkenazic, Hungarian, Rumanian and Indian Minhagim all developed. But their similarities are far more apparent than their differences. Whether or not Kitniyos is permitted on Pesach pales in insignificance when compared with the Isur Kares of eating Chametz and the Mitzvas Aseh of eating Matzah, which is universal. We all have the same 19 Berachos of Shemoneh Esreh, even if the Nusach differs slightly in the middle Berachos (see my other response on that subject, accessible at www.dafyomi.co.il/berachos/discuss/bera-029.qa6.pdf ). Shabbos and Yom Tov, Shatnez and Kashrus are observed in practically the same way everywhere. Only in the details are there differences, which are entirely explicable due to the long and hard Shibud ha'Galus - may the Beis Hamikdash be rebuilt speedily in our days.

Kol Tuv,

Rabbi Joseph Pearlman

[The translations of Hebrew sources were provided by M. Kornfeld.]

1. Surely this should be clear from what I wrote before. Tanach is full of Klal Yisrael's backsliding. For example, the main message of Sefer Shoftim is that when we misbehave, Hashem frowns upon us and sends nations to punish us until a Shofet Tzadik arises and leads us back to the right path. During the misbehavior time and especially during Shibud Galiyos turmoil, much gets forgotten. But there are always some Tzadikim/ Neviim/ Perushim/ Tana'im/ Ge'onim/ Rishonim etc. who preserved their Mesorah in their locality. See, for example, Sukah 20a, which tells us that when the Torah was forgotten, Ezra arose from Bavel. When it was forgotten again, Hillel came up etc. See Rashi there, that it refers to the (remarkable) situation of Bnei Beseirah, Pesachim 66a, who forgot a Halachah, etc.

2. The source for the 12 paths through the Yam Suf very much antedates the Arizal. See Targum ha'Meyuchas li'Yonasan ben Uzi'el, Shemos 14:21, Shemos Rabah 24:1 on Shemos 15:22, Tanchuma there #10, Pirkei d'Rebbi Eliezer ch.42, Avos d'Rebbi Nasan ch. 33, Perush ha'Mishnah of the Rambam and Rav mi'Bartenura to Avos 5:3, (or 5:4 or 5:5, depending on the edition), R. Bachye Shemos 14:21 (who mentions the Remez of "Zeh", Gematriya 12), etc. It is a short step to deduce that the Midrash alludes to 12 different paths in the service of Hashem and 12 sets of customs.

Thus, the Arizal writes (Sha'ar ha'Kavonos 3:4) "Kabalah b'Yadeinu" that there are 12 windows in heaven corresponding to the 12 Shivtei Yisrael. See also Magen Avraham OC 68, who quotes the Arizal, and Mishnah Berurah there 68:4 and Yechaveh Da'as of R. Ovadyah Yoseph Shlita vol. 3:6 (p.20).

Thank you for your kind words. Please pass my best wishes to your Rav, R. Aharon Feldman Shlita, with whom I am very friendly.

Kol Tuv

Joseph Pearlman

(a) As to the issue of the Masorah, it is axiomatic that it remains unbroken. The Rambam in his introduction to Mishnah Torah makes this point very clearly indeed. Amos received it from Hoshea, Yeshayahu from Amos and his court, Micah from Yeshayahu and his court, Yoel - Micah - Nachum - Chavakuk - Tzefanya - Yirmiyahu, each one with his court. Rambam subsequently adds that all these sages mentioned were Gedolei ha'Doros . . . accompanied by thousands and myriads who heard from them and were with them.

It is true that in the times of the really wicked kings, there were serious spiritual recessions, but the prophets remained, fearlessly denouncing their behaviour, as did Yeshayahu in the case of Menashe. The latter may have been capable of destroying the majority of Torah observance, but he could never have fully eradicated it. It is however, quite impossible for us to know or even estimate the number either of the general population at that time, or of those who remained righteous, whether in absolute statistics or in percentages, as we simply do not have the data available. However, we do know the names of some of the prophets and they undoubtedly had a significant following.

(b) As to the wording of the Radak (incidentally it is 22:8 not 23:8) which seems to be the main source of the questioner's problems, it should first be noted that Radak is trying to bolster an opinion which others (eg. Abarbanel) in fact reject. It is not surprising that he endeavours to embellish that view in a hyperbolical fashion. Having referred to the 55 year iniquitous rule of Menashe during which he made the Torah forgotten etc., all turning to idols etc., he is forced to get round the problem that Menashe repented (according to Seder Olam after only 22 years of misbehaviour). He is constrained to show how the Torah was all but forgotten during this period, but he cannot mean that it in fact was completely forgotten by all.

Indeed, the explanations of the other Rishonim such as Abarbanel, Seforno, Metzudos etc. do not require any necessty for an extended period of comprehensive Torah neglect by the whole nation.

(c) Perhaps it may assist to assuage the questioner's doubts by quoting from ha'Mikra veha'Mesorah of Rav Reuven Margoliyos, p.52:

"If one takes a superficial look at the rebuke of the prophets address to the backsliding of Israel into idolatry, it would seem that during these periods the Torah was totally forgotten and no one kept any of the Mitzvos. However, this picture is misconceived by imagining that their idolatry was comparable to today's apostates. Actually, there is a huge difference between them. The latter rejected the Torah and Mitzvos entirely, well before they finally broke with their religion, not as the former. They did not go astray consequent upon a denial of Hashem or the Torah. To the contrary, they thought they had found the true belief in Hashem. The prophet never rebuked them for lack of faith, only for their faith in misconceived vanities and their inability to throw off the shackles of the surrounding cultures who failed to appreciate the concept of the unity of Hashem. Their idolaters still kept all the practical Mitzvos, eg. Achav and his entourage who were complete idol worshippers still kept a Kosher house (see Chulin 4b and Rashi there and note the Midrash which tells us that the ravens brought Eliyahu food from Achav's royal table) etc."

In a footnote there he quotes from Chovas ha'Levavos, Sha'ar ha'Yichud ch. 1 who mentions that one should be careful when reading the rebuke of the Nevi'im which are couched in general terms as if being addressed to the whole of the nation comprehensively, while in fact they related in reality to a much more localized and particularized audience. The example he gives is that of Achan who we know for a fact was the only, sole, single person who sinned in the Cherem, yet the Pasuk says "Chatah Yisrael ve'Gam Ganvu ve'Gam Kicheshu, ve'Gam Samu bi'Chleihem".

The whole of Israel is held responsible for the infractions of one individual. So when a section of the population sins, one can certainly expect the whole nation to be calumniated and the subject of rebuke by the prophet. And as we have said, there were always prophets and their followers at all times throughout the Tanach.

Kol Tuv,

Joseph Pearlman