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When Tigers Kill: Animals on Trial

As 3150 news sources (at the last count) are reporting, a tiger escaped at the San Fransico Zoo this week in as yet unexplained circumstances. It killed one person and severely injured two others before being shot dead by police. Since the police found it in the act of attacking someone, they clearly had to shoot it; but what if that would not have been the case? If it would have been possible to safely recapture the tiger without killing it, should that be done? This essay explains the Torah perspective on dealing with animals that have killed people or committed other capital crimes. It is extracted from the book Man And Beast, available at http://www.yasharbooks.com/Manbeast.html

Animals on Trial

I. Strange Lawsuits

In 1386 a trial was held in Falaise on account of a child who had been injured in the face and arms. The accused, wearing a waistcoat, breeches, and white gloves, was sentenced to being mangled and maimed in the head and arms before being garroted and hanged at the village scaffold. The torture and punishment in itself is not so odd, considering the year; the peculiarity of the case is that the accused was a pig.

This is but one of numerous such cases,[1] not all of which involved capital punishment. In 1559, the Saxon vicar Daniel Greysser excommunicated the sparrows that infested his church. In seventeenth-century Russia, a goat butted a child down a flight of stairs, and was sentenced to one year in a prison camp in Siberia. In 1734, Franciscan friars in Brazil brought a suit against the termites that were damaging their houses. But the defense attorney spoke of the industrious-ness of the termites, and pointed out that they lived in Brazil before the monks. The court resolved it by ordering the monks to provide the termites with a reservation, and ordering the termites to leave the monastery and to live only within the reservation.

Edward Payson Evans, in The Criminal Prosecution and Capital Punishment of Animals,[2] theorized that the Church instigated such trials in order to unite the parishioners and inspire confidence in the authority and power of the church. There is likely to be some truth in this, but it should be noted that such trials were not restricted to the Middle Ages. In 1926, a stray German Shepherd in Kentucky was charged with the attempted murder of a small child; it was sentenced to death and executed in the electric chair. In 1974, a judge in Tanzania sentenced a goat that had grazed on a private lawn to four days in jail. And in 1991, an Argentinean dog killed a child and was sentenced to lifetime imprisonment.

Modern sensibilities would, for the most part, see such trials as absurd:

“Punishment can be inflicted on animals to good effect. But unlike the genuine punishments inflicted on human criminals, it is not understood by a symbolic convention to express moral judgments on the offender or his past conduct. No animal could understand a moral judgment made about him in any language, natural or contrived. No animal could appreciate the morally blameworthy quality of his deviant act any more than it could appreciate the rational grounding of the violated rule. And no animal could be reasoned with by an appeal to commonly held ideas and convictions. That is why the full-fledged legal punishment of animals would be ludicrous, and that is why animals are not assigned legal duties and made legally answerable for their discharge.” (Joel Feinberg, “Human Duties and Animal Rights,” in On The Fifth Day: Animal Rights & Human Ethics, pp. 50-51)

How, then, are we to understand such trials? The philosopher J. J. Finkelstein[3] believed that medieval animal trials were based on the Biblical laws concerning the execution of a murderous ox. But with the medieval trials, the animal was apparently considered morally accountable for its actions, and thus deserving of torture and hideous forms of execution. Is this the case in Judaism? Let us analyze classical Jewish approaches to animal crimes, based on those Biblical laws.

II. Animal Rewards

There are several statements in the Midrash concerning animals that are rewarded for performing good deeds. One concerns the creatures that buried Abel after Cain murdered him:

“Who buried Abel? Rabbi Elazar ben Pedas said: The birds of the heavens and the kosher beasts buried him, and the Holy One gave them their reward, with the two blessings that are pronounced upon them; one for their slaughter, and one upon covering their blood.” (Midrash Bereishis Rabbah 22:8[4])

We are also told that the frogs which performed the self-sacrifice of entering the ovens in the Egyptian plague were rewarded by being allowed to survive and return to the water:

“And the frogs in the houses died.” (Exodus 8:9) – This teaches us a lesson regarding the frogs that threw themselves into the oven, and descended to sanctify the Name of the Holy One. How did the Holy One repay them? That all the frogs in Egypt died, as it says, “And the frogs in the houses, the courtyards and fields died” (Exodus 8:9) but those that descended into the ovens did not die, because they gave themselves over for incineration in order to fulfill the decree of the Holy One, therefore they emerged alive from the ovens and went down to the river, as it says, “only they shall remain in the river” (Exodus 8:5). (Midrash Tehillim 28; Yalkut Shimoni 1:182)

The dogs in Egypt did not attack the Jews, and we are therefore commanded to give them meat which is not kosher for human consumption:

“[You shall be people of holiness to Me; you shall not eat the meat of an animal torn in the field] – throw it to the dog” (Exodus 22:30). This teaches you that the Holy One does not withhold the reward due to any creature, as it says, “And to all the Children of Israel, no dog shall whet its tongue” (Exodus 11:7); therefore the Holy One said: Give it its reward. (Midrash, Mechilta to Exodus 22:30)

(There are several other statements which may indicate the same idea,[5] but the terminology of “reward” is not used in those cases, and the statements may easily be interpreted simply as man having an obligation to express his gratitude to the animal, rather than the animal innately deserving to be rewarded.)

III. Animal Punishments

Just as we find animals that are divinely rewarded for performing acts of good, we also find that animals are divinely punished for sinning:

“It is written concerning the generation of the Deluge that “all flesh corrupted its ways upon the earth” – that domesticated animals interbred with wild beasts, and wild beasts with domesticated animals, and all with mankind, and mankind with all. Therefore, it is written concerning them, “Behold, I will destroy the land.” And how do we know that all the animals and beasts and birds and reptiles were commanded since Creation not to interbreed with other kinds? As it is written, “And God made the animals of the land according to their kinds.” The Holy One said to them, “Every kind should only attach itself to its own kind; it is prohibited with another kind.” (Midrash Tanchuma, Noah 5)

Some of the animals that were saved on the Ark also sinned:

“The Rabbis taught: There were three that had intercourse in the Ark, and all were punished – the dog, the raven, and Cham.” (Talmud, Sanhedrin 108a)

We also find animals being divinely punished for sinning later in history, with the horses of the Egyptians that chased the Jewish People:

“The Holy One brought the horse and its rider and stood them in judgment. He said to the horse, Why did you chase after My children? And it replied, The Egyptian forced me to run against my will, as it says, “And Egypt gave chase” (Exodus 14:9). And He said to the Egyptian, Why did you chase after My children? And he replied, The horse ran against my will, as it says, “For the horse of Pharaoh came” (Exodus 15:19). What did God do? He placed the man astride the horse, and judged them together, as it says, “He tossed the horse and its rider in the sea” (Exodus 15:1).” (Midrash Mechilta, parashas haShirah 2)

IV. Can An Animal Sin?

The Torah tells us that an ox which killed a human being is to be killed. One might think that this is just a matter of getting rid of a dangerous menace. But the laws involved show that there is more to it than that. The killing of the animal is not done via any ordinary form of animal slaughter, but instead through stoning, the same method of execution that is applied to a human murderer:

“If an ox gores a man or a woman, and they die, then the ox shall be stoned, and its flesh shall not be eaten; but the owner of the ox shall be acquitted. But if it was a goring ox from previous occasions, and its owner had been warned but had not guarded it, and it has killed a man or a woman, then the ox shall be stoned, and its owner shall also be put to death.” (Exodus 21:28-29)

The Talmud expounds that not only does the ox receive a method of execution normally reserved for humans, but it even receives their form of trial:

“The stoned ox is [tried by a court of] twenty-three [judges], as it says, “the ox shall be stoned and its owner shall also be put to death” – the death of the ox is as the death of the owner (i.e. via the same procedure).” (Talmud, Sanhedrin 2a)

Why is the animal killed? Is it being punished for a moral crime? That would seem to be impossible. As discussed earlier, animals do not have the capability of making moral choices between good and evil. If they have committed no moral crime, it would seem unreasonable for the execution to be a punishment.[6] It is for this reason that God speaks of having mercy upon the city of Nineveh:

“And should I not spare Nineveh, that great city, where there are more than one hundred and twenty thousand persons who cannot discern between their right hand and their left hand; and also many animals?” (Jonah 4:11)

The commentator Rabbi David Kimchi (1160-1235), better known by his acronym Radak, explains that animals are also incapable of distinguishing between right and wrong. They are therefore not deserving of reward or punish–ment.

This reasoning also lay behind the actions of King Saul. When he destroyed the tribe of Amalek, he had compassion upon their animals and did not fulfill the commandment to exterminate them.

“Saul said… “Albeit the people have sinned, but how have the animals sinned?” …A voice came out [from Heaven] and declared, “Do not be overly righteous.” (Talmud, Yoma 22b)

While the need to wipe out every trace of Amalek meant that Saul should have killed the animals, he did have a point. Animals do not ever innately deserve to be punished. The Midrash clearly states that there is no concept of retribution for animal crimes:

“An animal that dies is at rest; but people who transgress God’s commandments and anger Him with their unbefitting deeds and die unrepentant are stood in judgment.” (Tanna D’vei Eliyahu Zuta 24)

There is no Heaven and Hell for animals; they have no moral choices to make. Why, then, is the goring ox stoned to death?

It is not only for taking a human life that an animal is killed. The Torah also rules that if a man or woman engages in bestial relations with an animal, both human and animal are stoned to death. The Mishnah raises our question concerning the culpability of the animal:

“If a man has intercourse with a man, or with an animal, or if a woman has intercourse with an animal, they are stoned. But if the person has sinned, how has the animal sinned?” (Mishnah, Sanhedrin 54a)

It is interesting to note that the Jews explicitly rejected the idea that an animal can be morally accountable for its actions, including sexual sins, over two thousand years ago, while centuries later, the non-Jewish world was still confused over the issue. From the fourteenth through to the eighteenth centuries, both people and animals involved in bestiality were not merely executed; they were tortured and burned alive.

Yet the question still remains: if the animal is not being sentenced and executed due to any moral culpability, why is it being subjected to this punishment?

V. Punishing the Owner

The fourteenth-century scholar Rabbeinu Bechaye ben Asher states that the goring ox is killed simply as a way of financially punishing the owner:

“The killing of the ox is not done to exact judgment from the ox, but rather to exact judgment from its owner, such that he should be more careful in looking after it. And if he does not take care of it, he now knows that he will lose his property. This is the simple explanation.” (Rabbeinu Bechaye, commentary to Exodus 21:28)[7]

It is noteworthy that Rabbeinu Bechaye qualifies his explanation by stating that it is only the simplest level of explanation, for his answer leaves several difficulties unresolved. Ramban points out one reason why financial punishment cannot be the explanation for the ruling:

“The stoning is not in order to financially punish the owner, for even an ownerless ox is subject to the death penalty.” (Ramban, commentary to Genesis 9:5)

Although we do not actually rule that an ownerless ox is put to death,[8] Rashba explains that since such an opinion nevertheless exists, it cannot be that financial punishment is the reason for the mitzvah.[9]

VI. Reincarnation

Another difficulty with the explanation of financial punishment is provided by Rabbi Reuven Margaliyos.[10] He notes that the ox is not merely put to death; it actually undergoes a trial, in the presence of twenty-three judges of the Sanhedrin, and a sentencing procedure. The entire procedure seems extremely similar to a human trial. Rabbi Margaliyos therefore proposes a novel expla-nation. He states that a murderous animal houses the reincarnated spirit of a person. Thus, it is really the human spirit inside the animal that is being punished, rather than an ordinary animal.

Although the explanation of Rabbi Margaliyos seems to solve many of the difficulties, some will nevertheless find it difficult to accept. The concept of transmigration of souls is not universally agreed upon.[11] Furthermore, there is a question to be asked on this explanation. If animals that commit harmful acts are really the reincarnated spirits of people, then why are animals not punished for injuring people, only for killing them?

VII. Actions and Reactions

There is another, intriguing explanation of animals being sentenced to punishment; one that is broader in application and also explains the divine rewards and punishments that we enumerated earlier. Fascinatingly, it is not only animals that receive reward and punish-ment. According to some opinions in the Midrash, even a tree, the wood of which is used to make a weapon, ultimately faces retribution for this:

“And God said, My spirit shall no longer contend with man, in that (beshegam) he is but flesh.” (Genesis 6:3) I had said that My spirit shall rule in them, and they did not desire this; I will set them (meshagman) one on the other (that a sinner will be killed by someone who will himself be held responsible for murder). This is as Rabbi Elazar said: Only another human being is held liable [in Heaven] if he [harmed] a person. Rabbi Nathan said: Even a wolf and a dog. Rav Huna bar Gurion said: Even a stick, even a whip. Rav Acha said, Even a wild tree will ultimately give retribution.” (Midrash Bereishis Rabbah 26:6)

This is astonishing! It is abundantly clear that not only do trees have no free will; they have no will at all. How can they undergo retribution?

The explanation of this cryptic concept is easier to understand if we consider the mystical concept that every-thing in the physical world is a reflection of higher spiritual realities. The physical can therefore be used as a parable for understanding the metaphysical. Let us consider an example in the physical world. It is no bizarre coincidence that when you stub your toe on a rock, the rock inflicts pain on precisely the part of your body that you used to inflict force on it. To every action there is an equal and opposite reaction. It doesn’t matter whether you intended to stub your toe on the rock or not. There are certain laws of nature, and all actions have consequences.

The same is true of the reward and punishment being discussed here. They are no mere arbitrary whims of the Creator. Rather, they are innate consequences of the actions that take place, according to the scientific laws of the metaphysical reality. The animal is not being punished for a moral wrongdoing; it is undergoing recompense, the inevitable consequences of its actions.

VIII. The Gravity of the Crime

The Mishnah explains why an animal used for bestiality, although not morally accountable, is neverthe-less executed:

“If a man has intercourse with a man, or with an animal, or if a woman has intercourse with an animal, they are stoned. But if the person has sinned, how has the animal sinned? Since the person came to harm due to it, the Torah said that it should be stoned.” (Mishnah, Sanhedrin 7:4)

This is somewhat cryptic: “Since the person came to harm due to it.” What does this mean? The Tiferes Yisrael commentary explains it to mean that we do not want to risk other people sinning with this animal. Yet this does not account for the severity of the form of execution, nor why a Sanhedrin of twenty-three judges is required.

There is another possibility. Sefer HaChinnuch explains that we kill the murderous ox and even prohibit its meat in order to show how severe is the sin of killing a person; that it causes one to become an object of disdain and disgust in the eyes of Heaven.[12] From contemplating the animal trial, a person will learn to take particular care to distance himself from such sins. The laws of animal trials serve to teach lessons to us about the evil of sin. They make an impression on people and thereby influence human behavior.

This may be what Ramban is saying with regard to a killer ox. Ramban’s explanation occurs in the context of God’s decrees to Noah regarding the new order in the post-Flood era: “I shall demand your blood, your lives; I shall demand it from all the animals” (Genesis 9:5). Ramban raises our question:

“I wonder: If this “demanding” is in the simple sense of the term, that He shall punish animals for this in the same way as humans – surely an animal does not possess an intellect, that it should be punished or receive reward!” (Ramban, commentary to Genesis 9:5)

Ramban proceeds to give an explanation that is very similar to the Mishnah’s explanation for the stoning of the animal used for bestiality:

“But perhaps such is the case only for the blood of man, that any animal which kills him should itself be killed, as a decree of the King. This is the reason behind, “The ox shall be stoned, and its flesh shall not be eaten” (Exodus 21:28).” (Ibid.)

Ramban is noting that there is no general concept of reward and punishment for animals, for there is no moral accountability on their part. Rather, their trial and execution is demanded “only for the blood of man,” and for bestiality. The point in these cases is not that the animal is being held accountable for its actions. The trial and execution is not based on the animal at all. Rather, it is based on the human participant. The procedure teaches us how terrible the crimes of murder and bestiality are.

There is another instance where there was a rule that an animal stood in trial before a court of twenty-three judges and was executed: an animal that wandered onto Mount Sinai.[13] It seems that the three crimes for which animals are put to death correspond to the three cardinal sins of idolatry, murder and sexual immorality, which are so severe that we are required to forfeit our lives rather than transgress them. The animal that wanders onto Sinai parallels the sin of idolatry, in that it shows disregard for the Creator’s authority. The ox that kills a man parallels the sin of murder. The animal that is used for bestial purposes parallels the sin of sexual immorality. Since these are the three crimes for which animals are put to death, it further hammers home the severity of such sins.[14]

IX. The Dignity of the Participant

We find that animals sometimes have their fates divinely ordained not as a result of their actions, but due to their relationship to a human being. For example, there is a story in the Book of Kings of a prophet who sinned and was killed by a lion. The verses recount that the lion miraculously did not kill the donkey upon which the prophet was riding.[15] Radak explains that there is reward and punishment for animals insofar as they are connected to people, and in this case, some of the prophet’s dignity was maintained by virtue of his bearer surviving.

Along these lines, the aforementioned Mishnah gives a second reason as to why an animal that was used for bestial purposes is killed:

“Another explanation: So that the animal should not pass through the streets and people say, “This is the animal on account of which so-and-so was stoned.” (Mishnah, Sanhedrin 7:4)

The procedure is designed to uphold the dignity of man. It requires animals that have negated this to be tried and executed in the same manner as human offenders. This likewise applies to anything that has been instru-mental in the disgrace of a human being:

“God does not desire the shame of man, for they would bury the stone with which he was stoned, and the tree on which he was hanged, such that his relatives would not be shamed, and lest others look down on them.” (Sefer Chasidim 549)

It should be noted, however, that while this gives a reason for the animal’s extermination, it does not explain the method by which it is done – i.e., a humanlike trial and execution.

X. The Gravity of the Sentence

One explanation of why the Sanhedrin is required is because of the severity of taking the life of an animal. Slaughtering an animal for food is something for which we have already been granted a free license from God. But killing animals for other reasons is a grave matter.

A source for this concept is to be found in the case of a consecrated animal that is slaughtered outside of the tabernacle, in which case it may not be eaten:

“Whichever man there is of the house of Israel, who kills an ox, or lamb, or goat, in the camp, or who kills it out of the camp, and does not bring it to the door of the Tent of Meeting, to offer an offering to God before the tabernacle of God; blood shall be imputed to that man; he has shed blood; and that man shall be cut off from among his people.” (Leviticus 17:3-4)

As discussed elsewhere in this book, Sefer HaChinnuch writes that unwarranted killing of animals is rated as bloodshed that is only a little less severe than human bloodshed.

“Thus, to stress the severity of killing even a murderous ox, the cross-examined testimony of two witnesses, and a court of twenty-three judges is required. .the Torah had pity on the animal.” (Talmud, Sanhedrin 55a) “- For it required the testimony of witnesses, and a Sanhedrin of twenty-three judges.” (Rashi ad loc.)

The commentary Ohr HaChaim notes that killing an animal where it is not to be used for human benefit is as serious as killing a human, which is why Scripture equates the two and requires twenty-three judges:

“God only gave us the blood of an animal in order to atone for our souls. to exclude any other reason; for we do not have it as a gift to do whatever we like with it. And we find that the law of executing an animal must be with a Beis Din of twenty-three, just as the judgment with a human being, for Scripture equated the judgment of an animal with the judgment of a human being.” (Ohr HaChaim to Leviticus 17:11)

The laws of putting an animal on trial are just as serious as putting a human being on trial. For example, with a human trial, the accused must be present and able to watch the testimony of witnesses (similar to the Sixth Amendment “right of confrontation” of the US consti-tution). Incredibly, the same is true with an animal trial; the animal must be present in the courtroom, presumably so as the judges will better appreciate the gravity of what they are doing. Furthermore, if there is doubt as to whether the animal is liable for the offense, it is not killed.[16] The principle of ruling leniently in matters of life-and-death (safek nefashos lehakel) is easy to under-stand when applied to humans; yet it is more striking to see it also applied to a potentially lethal animal. Since causing suffering to animals is such a serious offence, an animal may not be killed if there is any doubt as to whether the sentence applies.[17] This is an astonishingly powerful example of the gravity with which the Torah ascribes to the taking of an animal’s life.

NOTES

[1] These examples are taken from Jan Bondeson, “Animal Trials,” in The Feejee Mermaid and Other Essays in Natural and Unnatural History (New York: Cornell University Press 1999). [2] London 1906. [3] Transactions of the American Philosophical Society 71/2 [1981]. [4] Cf. Midrash Tanchuma, Bereishis 10 and Midrash Pirkei d’Rebbi Eliezer 21. [5] E.g., the firstborn of donkeys being sanctified as a result of their carrying the Jewish People’s loot from Egypt (Talmud, Bechoros 5b). [6] Some do indeed conclude that animals are held personally culpable; see Noah J. Cohen, Tsa’ar Ba’ale Hayim: The Prevention of Cruelty to Animals, Its Bases, Development and Legislation in Hebrew Literature (New York: Feldheim Publishers 1976), and V. Aptowitzer, “The Rewarding and Punishing of Animals and Inanimate Objects: On the Aggadic View of the World,” H.U.C.A. III (1926), pp 117-155. Nevertheless, in light of the sources cited in this chapter, I believe this conclusion to be unreasonable. [7] See too Rambam, Guide For The Perplexed 3:40. Rabbeinu Bechaye also provides a mysterious second explanation that the attacking animal is influenced by Satan. [8] In accordance with Rabbi Yehudah’s view in Bava Kama 44b. [9] Shailos U’Teshuvos HaRashba 1:114. [10] Margaliyos HaYam to Sanhedrin 10a. [11] Opponents to this belief include: Rav Saadiah Gaon (Emunos v’Dayos 6:8); Rabbeinu Avraham ben HaRambam (see R. Margoliyos, in his introduction to Milchamos Hashem p. 19 note 11); Rabbi Avraham ibn Daud (Raavad I, in Emunah Ramah 7); Rabbeinu Yitzchak ben Avraham Ibn Latif (Rav Poalim, p. 9 section 21); Rav Chasdai Crescas (Ohr Hashem, ma’amar 4, derash 7); Rav Yosef Albo (Sefer HaIkkarim 4:29); and Rav Avraham Bedersi (Ktav Hitnatzlut leRashba). See too Tosafos Yom Tov (approbation to R’ Naftali Hertz Bachrach, Emek HaMelech), who cites Abarbanel that transmigration is an import from Greek philosophy rather than being part of Kabbalah, and Rashash to Bava Metzia 107a. Also see Rabbi Samson Raphael Hirsch, commentary to Genesis 50:2. For further discussion, see Rabbi Yitzchak Blau, “Body And Soul: Tehiyyat ha-Metim and Gilgulim in Medieval and Modern Philosophy,” The Torah u-Madda Journal vol. 10 (2001). [12] Mitzvah 52. [13] See Exodus 19:13. [14] I am indebted to Rabbi Mordechai Kornfeld for this insight. [15] Kings I 13:24. [16] Shailos U’Teshuvos Chazon Nachum II 10:2. [17] Shailos U’Teshuvos Sho’el U’Meishiv, fourth edition, 38. See too Kovetz Shiurim vol I, Bava Basra 50b, os 223, 226, Shailos U’Teshuvos Kochav MiYaakov 62, and Tzaar Baalei Chayim, p.170.

=============== (c) Copyright by Rabbi Natan Slifkin 2007, zoorabbi@zootorah.com.

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August 11, 2011 at 3:11 pm Leave a comment

JUDAISM AND ANIMAL RIGHTS: Classical and Contemporary Responses

edited by Roberta Kalechofsky

pbk.    368 pgs

Description

An anthology of 41 articles from classical and contemporary sources, by rabbis, doctors, veterinarians, conservationists, philosophers, historians and activists on vegetarianism, ritual slaughter, animal research and its implications for modern health. Includes essays by Henry Spira, Rabbi Shlomo Riskin, Rabbi Alfred Cohen, Richard Schwartz, Aviva Cantor, Roberta Kalechofsky, Temple Grandin, and others.

buy it at Micah Publications or Amazon.com

August 10, 2011 at 4:12 pm Leave a comment

Rationality and Halacha: The Halacha L’Moshe MiSinai of Treifos

Here is a link to an article in Ḥakirah, the Flatbush Journal of Jewish Law and Thought titled:

Rationality and Halacha: The Halacha L’Moshe MiSinai of Treifos

 

August 8, 2011 at 7:08 am Leave a comment


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