Taking
into Account Animals' Feelings
R. Yaakov
Bieler
Parshat Ki
Tetze, 5765
In Parshat Ki Tetze, we encounter
three verses that ostensibly deal with the same issue, i.e., rules that govern
what “workers”, (human and animal) are entitled to while
carrying out tasks which they
either accepted upon themselves or were assigned.
Devarim
23:25-6
“Ki Tavo” (When you come)[1]
into the vineyard of your fellow, you may eat grapes as is your desire, to your
fill, but you may not put (any) into your vessel.
“Ki Tavo” (When you
come)1 into the standing grain of your fellow, you may pluck ears
with your hand, but you must not lift a sickle against the standing grain of
your fellow.
Devarim
25:4
You shall not muzzle an ox in its
threshing.[2]
Precisely because these
Commandments appear, at least from one perspective,[3]
to be so parallel,[4]
MaLBIM wonders why they were not positioned next to one another (in
accordance with the hermeneutic principle “Semichut HaParshiot”) in the
Tora text.[5]
MaLBIM on Devarim
25:4
…And it is necessary to
contemplate why the prohibition “You shall not muzzle” appears in the same
section with the rule regarding the number of lashes (meted out to a
transgressor)[6].
If it (“You shall not muzzle”) is
another manifestation of the principle to avoid “Tzar Ba’alei Chayim”
(inflicting pain upon animals), it should have been placed next to the laws of
“Prika” (unloading)[7]
and “Te’ina” (loading).[8]
And if it (“You shall not muzzle”)
is another case of the principle of not preventing the worker from enjoying the
fruits[9]
of his labors, it should have been placed next to (Devarim 23:25-6)
“When you come into the
vineyard of your fellow…”.
But one could argue against the
inherent premise within MaLBIM’s question: perhaps it is only a romantic
conceit of the human imagination to assume that the Tora rules designed to
minimize frustration and unhappiness that apply to humans, as exemplified in
entitling a fieldworker to eat some of the food that he is picking, should
equally be extended to animals. [10]
Can it rightfully be contended that the “frustration” that might be experienced
by an animal unable to eat some of the kernels that it is crushing during the
threshing process to be viewed as truly comparable to the emotional distress
undergone by a field worker prevented from consuming the occasional apple, pear
or peach? Is there empirical evidence that an animal that is muzzled during
threshing is significantly negatively impacted emotionally, or is this merely a
case of personification, whereby human beings are projecting their own
experience onto other creatures with whom they share their world?[11]
It would seem that once it is
established after the Flood, during the generation of Noach, that human beings
are entitled from this point forward to kill and eat animals (Beraishit
9:3-4), it becomes much more difficult to draw the line between what is
considered treating an animal cruelly and the legitimate use of an animal to
further human needs.[12]
Physically torturing a live animal would appear to obviously be precluded from
the perspective that such behavior entails abusing a portion of God’s Creation,
that acting in this manner would constitute a violation of the general principle
of (Devarim 20:19-20) “Bal Tashchit”[13]
(lit. do not destroy) and it could even be contended that non-Jews are also
prohibited from such practices by virtue of the appearance of “Eiver Min
HaChai” (lit. a limb from a living animal, i.e., that even once meat has
been permitted by God to be eaten by man, the animal must first be killed before
it is dismembered) on the list of the 7 Noachide Commandments.[14]
However it is unclear that the same restrictions would include the imposition of
“emotional” pain on animals independent of any physical harm.
A further question along these
lines would entail wondering whether a distinction ought to be made between
cruelly teasing animals and/or using them for sport, e.g., bull fighting, cock
fighting, greyhound and horse racing, sport fishing, which would all appear to
be morally wrong even if the animal(s) involved is in the end not physically
harmed, in contrast to putting members of the animal kingdom to work for what
could universally be agreed upon as productive human purposes. Should using
animals for laboratory experimentation, particularly in order to investigate
human illness and develop cures ever be considered as anything other than
permissible, and perhaps even an actual Mitzva, despite the pain and discomfort
engendered by such procedures?
Furthermore, with regard to
employing animals for what is regarded as purely entertainment purposes, could
even these activities be legitimately included under the rubric of (Beraishit
1:25) “…And God Said to them (man and woman): Be fruitful and multiply and
replenish the earth, and subdue it; and have dominion over the fish of the
sea and over the birds of the air, and over every living thing that moves on the
earth.” For example, recognizing that accustoming a horse to accepting a
rider typically entails at first considerable resistance and dismay on the part
of the animal, does causing the animal significant consternation become
legitimized by the horse being considered part of the “dominion” of man? Should
a distinction be made between horse riding required for transportation or
enabling one to work or serve in an army, and recreational horseback riding? Can
a point be established for determining when we are demanding too much, being
improperly callous to members of the animal kingdom, as opposed to recognizing
and accepting the truism that totally avoiding causing an animal discomfort
would preclude its use for virtually any human purpose, other than to serve as
pampered pets for human masters in search of companionship?
Perhaps it is precisely because
insisting upon the existence of significant feelings within animals that have to
be given serious consideration when we interact with them, leads to so many
apparent contradictions and inconsistencies vis-à-vis Jewish law and tradition
in general, that some commentaries posit that any consideration extended towards
an animal is designed to exclusively address human sensibilities rather than
those of the animal in question. Regarding the Commandment in Parshat Ki Tetzei
of “Shiluach HaKein” (see fn. 11), RaMBaN writes:
RaMBaN on Devarim 22:6
…Because the reason is that we
should not have a cruel heart and be discompassionate, or it may be that
Scripture does not permit us to destroy a species altogether, although it
permits slaughter within that group. Now he who …takes them (the eggs or the
baby birds in the presence of their mother) when they are free to fly, it is
regarded as if he cut off the species. (RaMBaN mentions nothing about even the
existence of animal feelings; he is concerned exclusively about human conduct
towards animals and the impression that such behavior leaves on
humans.)
Typically Sefer HaChinuch
follows the lead of RaMBaM, who is quoted with respect to the Commandment of
“Shiluach HaKein” in footnote 11 as suggesting that animals actually do have at
least maternal and paternal feelings, comparable to the emotions that human
parents feel for their offspring. Yet the Chinuch appears to depart from
RaMBaM’s view in the instance of the prohibition against muzzling an ox during
the time that it is threshing, reminding one more of RaMBaN’s position as to how
to explain why one should not take the baby birds and/or eggs in the presence of
the mother bird:
Sefer HaChinuch
#596
…to educate us that our spirits
should be of fine character, choosing decency and clinging to it, and seeking
after kindness and compassion. By training our spirits in this way by means
of how we treat animals, which have been created for no other purpose that to
serve us, to have pity on them, to give them a share out of the toil of their
flesh, the spirit will take its path as a result of this habit to do good for
human beings, and guard them from being wronged or deprived regarding anything
that is due them, to pay them their reward for everything good that they do, and
to grant them their fill out of what they have toiled in. In this fitting path,
the Chosen People of Holiness are to go.
Consequently, the manner in which
we treat animals according to RaMBaN and Sefer HaChinuch becomes a template for
how we are expected to treat humans. According to this approach, animals provide
man with a testing ground wherein we can develop proper respect and appreciation
for other human beings. Such an understanding is reminiscent of the series of
Midrashim that attempt to explain why many Jewish Biblical leaders emanate from
the ranks of shepherds. Not only are sheep ubiquitous in the Middle East right
through the modern period, and therefore can be expected to have been and
continue to be important to people’s livelihoods who live in the area, but these
animals also serve to challenge man’s patience, consideration, kindness, concern
for other creatures, etc. The truly excellent shepherd is deemed to have
demonstrated that s/he has the potential to be an extraordinary human being
vis-à-vis others as well as HaShem.
Shemot Rabba
2:2
(Tehillim 11:4 “His Eyes See; His
Eyelids Test people.”
And who does He Test? A righteous
individual, as it says, (Tehillim 11:5) “HaShem, a Tzaddik He
Tests”.
And how does He Test? By means of
shepherding.
He Tested David with sheep and
Found him to be a good shepherd. He Said: Whoever knows how to shepherd sheep,
let him come and shepherd My People”...
And so too Moshe—the Holy One
Blessed Be He Tested him with shepherding sheep.
The Rabbis said: When Moshe was
shepherding the flock belonging to Yitro in the desert (Shemot 3:1), a kid ran
away and Moshe pursued after it until it reached a barrier. When it reached the
barrier, it discovered a spring of water and the kid stood to drink. When Moshe
caught up with the kid, he said, “I didn’t know that you ran away because you
were thirsty. You must be tired.” He put the kid on his shoulder and began to
walk. Said the Holy One Blessed Be He, “You have sufficient compassion to treat
members of a flock belonging to humans in such a manner! By your life, you will
shepherd My Flock, Israel. This is why it states (Shemot
3:1) “And Moshe was a shepherd…”
Midrash Tehillim
78
“And He Chose David His Servant,
and He Took him from the ‘Michla’ot Tzon’ (sheepfolds).”
Said R. Yehoshua HaKohen: What are
the “Michla’ot Tzon”? David would feed “Chula” one group, taking into
consideration the other groups. He would allow the young goats to go out to the
pastures first and they would eat the tender grass; he would then let out the
rams and they would eat the average grass (which was tougher than the tender
grass); then he would finally permit the older animals to go out and they would
eat the roots.
Said the Holy One Blessed Be He:
Since you obviously know how to take care of a flock of sheep, you will take
care of My Flock, Israel.
The approaches of RaMBaN and Sefer
HaChinuch are yet another confirmation of Hillel’s summation of the Tora to the
potential convert while the latter was standing on one foot: (Shabbat
31a) “What is hateful to you do not do to your neighbor. The rest of the
Tora is commentary thereof. Go learn!” Not muzzling one’s ox while it is
threshing, and all that is implied in such an outlook, provides one more
opportunity for us to work on the most important of all “Middot” (personality
traits), treating our fellow human being with love, respect, compassion and
consideration.
Shabbat
Shalom.
[1] Although the Mishna in Bava
Metzia 7:2-6 takes for granted that Devarim 23:25-6 teach that a
fieldworker is allowed to eat from the produce that he harvests while s/he is
working in the field, the language “When you (anyone?) come” does
not inherently appear to limit this privilege only to such a worker.
Consequently the Talmud attempts to demonstrate why these verses are to be
associated exclusively with the
Mishnayot in Bava Metzia:
Bava Metzia
87b
The term “Tavo” (coming) is
used here, and further on (Devarim 24:15) the Tora states, “In his day (during
the same day during which he performed his work for you) you will give him his
wages, ‘VeLo Tavo Alav
HaShemesh’ (lit. the sun will not come upon him, i.e., you must
not allow
the day to end before you pay him)”. Just as further on, the Tora is
discussing
a worker, so too here it is discussing a worker.
(This is an example of a
“Gezeira Shava” (lit. an equal expression), the hermeneutic device which
assumes that if a word appears in two different Tora teachings, no matter how
far apart the verses containing the words may be—they might even be found in
totally different books of the Bible!—it can be assumed that the two topics
share something in common. Since most authorities are of the opinion that a
“Gezeira Shava” cannot be innovated by an individual scholar, but is considered
valid only if it has been handed down from previous generations as part of
Jewish tradition, such a derivation is not considered logical, in
contrast to e.g., a “Kal VeChomer”.)
Yerushalmi Ma’asrot
2:4
You might think that the verse
(“When you come…”) is talking about all people (rather than only
fieldworkers). Therefore the Tora states, “…but you may not put into
your vessel”, implying that you can place the produce in a vessel
belonging to someone else. (In most cases, placing another’s property into
vessels belonging to a third party would be considered thievery.) Under what
circumstances would such an activity be legal and proper? When the person
placing the produce into another’s vessel is a hired worker and the vessel into
which the produce is being placed belongs to the owner of the produce.
Who is someone in such a position? A
fieldworker, as opposed to anyone unauthorized to be working in the field.
(This derivation is based upon
logical deduction rather than an imposed, preexistent
tradition.)
[2] “Threshing” is one of the 39
prohibited major categories of “Melacha” (creative physical activity
prohibited on Shabbat—see Shabbat 7:2) and is part of “Sidura
D’Pat” (lit. the order of bread, i.e., one of the 11 steps in the process of
creating bread listed in Mishna Shabbat. Threshing was carried out in the
ancient world by gathering the severed tops of the stalks of grain in a pit, and
causing a large animal, e.g., an ox, to pull a sled upon which a person would
stand, over the collected tops of the stalks. The pressure of the sled as well
as the animal’s own walking would break the organic connections between husk and
kernel. Subsequently, via a series of sorting actions, only the kernel would
remain, ready for grinding and thereby flour can eventually be produced. The
verse in Devarim 25:4 therefore insists that while the animal is engaged in this
activity, it is not to be muzzled, thereby enabling it to eat some of the grain
upon which it is treading.
[3] Obviously, someone maintaining that
the prohibition of not muzzling one’s ox during the time that it is threshing is
a subcategory of “Tzar Ba’alei Chayim” (see MaLBIM’s question on Devarim 25:4,
quoted below) would not ask why it wasn’t juxtaposed next to the rules governing
human field hands.
[4] Taking the parallelism to quite an
extreme, Abraham Chill (The Commandments, Keter, Jerusalem, 1974, pp.
474-5) paraphrases in the name of Sefer HaChinuch, Mitzva
#576:
Man who gives of his labor and
strength to till the soil, prays anxiously for its produce, as well as the ox
that labors, though they are not actual owners, should not be denied the
fruits of their labors.
The language suggests to me that
both man and animal, by virtue of their efforts, become
quasi-owners of what is grown and it is this status that according to R.
Chill, entitles them to their portion of the harvest. It is as if their work has
established a type of partnership between the true owner and his workers,
and in addition to any wages to which they may be entitled, they also can take
advantage of their technical share in the completion of the growth process by
virtue of their participation in the harvest. Such a conception of the role of
the fieldworker and the beast of burden calls to mind the concept that man is
called upon to complete God’s Creation, and thereby partner with the Divine. See
Meshech Chachma on BaMidbar 15:39.
[5] The assumption of the validity of
“Semichut HaParshiot” (there is significance in the juxtaposition of one
Tora topic with either/both the topic immediately preceding and/or succeeding
it) can generate at least two types of inquiries: 1) why do
Commandments that seem to have nothing to do with one another nevertheless
appear next to one another in the Tora text, and 2) why are Commandments
that seem to be extraordinarily similar to each other nevertheless separated
from one another by Mitzvot that appear to deal with completely different
concerns.
[6] The section that appears
immediately before “You shall not muzzle”, and which is not even separated from
it by a “space”, i.e., a “Petucha” (a blank area extending from the last
word in a line to the end of the Tora’s column) or a “Setuma” (a space in
which 9 letters could have been written, that is enclosed on both sides within a
line in a Tora column), deals with the Beit Din’s meting out the punishment of
lashes:
Devarim
25:1-3
When there will be a grievance
between people, and they approach the court, and they judge them, and they
vindicate the righteous one and find the wicked one
guilty;
It will be if the guilty one is
liable to lashes, the judge shall cast him down and strike him,
before him, according to his wickedness, but in strict accordance with a count
(i.e., a specific rather than arbitrary number of blows will be
applied.).
Forty shall he strike him,
he shall not add; lest he strike him an additional blow beyond
these, and your brother will be degraded in your eyes.
MaLBIM answers the question that he
poses as follows:
In biblical times, they would not
allow oxen to graze in the fields, but rather they served as beasts of burden
like horses. They would pull ploughs as well as wagons, and this caused them
frequently to have to pass through fields belonging to others. One who feared
God’s Word would muzzle the animals throughout the day, undoing the muzzle only
at feeding time, as is stated regarding Eliezer, Avraham’s servant in
Beraishit 24:32. Therefore, had the Tora not contained Devarim
25:4, I would have thought that even during threshing, the oxen had to
remain muzzled. Similarly with respect to punishing an individual by means of
striking him with a lash, although the Tora authorizes and commands the Beit Din
to punish particular evil doers with lashes, they must be careful not to give
anymore than has been called for.
In effect, MaLBIM understands the
“Semichut HaParshiot” between not muzzling an ox and not exceeding 39 lashes as
punishment, as a practical application of the prohibition “Bal Tosif” (do
not add or subtract from the Mitzvot of HaShem) as in Devarim
13:1.
[7] Shemot
23:5
If you see the donkey of someone
you hate crouching under its burden, would you refrain form helping him? You
shall help repeatedly with him.
[8] Devarim
22:4
You shall not see the donkey of
your brother or his ox falling on the road and hide yourself from them; you
shall surely stand them up, with him.
[9] In this case “fruits” is not only
figurative, as in most instances when such a phrase is invoked, but literal as
well, i.e., we are dealing with produce that grows from the ground or on
trees.
[10] If it is maintained that in fact
the emotional state of animals parallels that of humans, then should
Commandments such as the following
also logically be extended to at least the more apparently sensitive members of
the animal kingdom?
Shemot 22:20-22 “Sojourners you shall not oppress
nor place under pressure, because you were sojourners in the
land of Egypt Any widow or orphan you shall not
oppress. And if you nevertheless oppress him/her, and s/he will cry out to Me, I
will surely Hear their cry.” Were an animal to be subjected to conditions that
would make it cry out, while the wrong may not be equivalent to oppressing
someone who is in the Image of God, nevertheless, is it a sin to have inflicted
such emotional pain?
VaYikra 19:14 “You shall not curse the
deaf…”interpreted by the Midrash Halacha to connote that if you are required to
be sensitive to show respect to someone unable to hear your cruel words, this is
all the more true with regard to a hearing individual. Should it also be
prohibited to curse an animal, which even if unable to comprehend the meaning of
the words directed at it, can nevertheless sense anger or disparagement in the
voice of the individual subjecting it to abuse?
Ibid. “…You shall not place a stumbling
block before the blind…” interpreted by the Midrash Halacha as including not
tricking/misleading another. Can an animal feel the frustration of being
misled/embarrassed to the point that this should be considered prohibited?
How Ho
[11] The question regarding the
existence of emotion in animals paralleling human feelings arises not only with
regard to the prohibition against muzzling an animal while it is threshing, but
also in the dispute between RaMBaN and RaMBaM concerning the
reason for the Commandment of “Shiluach HaKein” (sending the mother bird
away before taking either the eggs or baby birds from their nest), also found in
Parshat Ki Tetze (Devarim 22:6-7). After articulating his own approach to
why HaShem Commanded the Jewish people to observe this commandment (see further
along in this essay), RaMBaM quotes RaMBaM:
RaMBaN on Devarim
22:6
Now
R. Moshe ben Maimon wrote in Guide for the Perplexed (III 48) that
the reason for the Commandment to release the mother bird when taking its
nest…is in order to admonish us against killing the young in the mother’s sight,
for animals feel great duress under such circumstances. There is no
difference between the distress of man and the distress of animals for their
young, since the love of the mother and her tenderness to the children of her
womb are not the result of reasoning or the faculty of intelligent speech, but
are produced by the imagination which exists among animals as it is present in
man…
[12] It is significant to note that the
three Commandments that are typically cited as reflecting the need to be
sensitive to the sensibilities of animals, all involve sooner or later killing
and either sacrificing or eating them:
Shemot 23:19; 34:26; Devarim
14:21“…Do not cook a kid in
its mother’s
milk.”
VaYikira 22:28
“And an ox and a sheep, it and its
offspring do not slaughter in the same day.”
Devarim 22:6-7 “When there occurs to you a birds
nest along the way in a tree or on the ground, in which there are baby birds or
eggs, and the mother is hovering over the baby birds or the eggs, do not take
the mother in the presence of the baby birds. Send away the mother and the
offspring take for yourself in order that He will do good for you and you will
enjoy length of days.”
[13] While the immediate context of
these verses is the restriction against needlessly destroying fruit trees during
the besieging of a city in a time of war, the prohibition against indifferently
and irresponsibly destroying anything, including one’s own possessions, is
associated with these verses. See e.g., Bava Kama
91b.
[14] The Noachide Commandments as listed
in Sanhedrin 56a-b are: 1) establishing law courts; 2) the prohibition
against blasphemy; 3) the prohibition against idolatry; 4) the prohibition
against sexual immorality; 5) the prohibition against murder; 6) the prohibition
against thievery; and 7) “Eiver Min Hachai”. Additional Commandments relevant to
Noachides according to various Rabbinic opinions listed in the Talmud include:
8) the prohibition against consuming blood from a living animal; 9) the
prohibition against castration; 10) the prohibition against magic; and 11) the
prohibition against cross-breeding animals and plants. The Talmud also cites R.
Yochanan who maintains that the original 7 Commandments on the list can be
derived from Beraishit 2:16-17, effectively positing that these Divine
Directives were already given to Adam and Eve at the moment of their creation,
and therefore these rules really should be called the “Adamite” rather
than the “Noachide” Commandments.