Ki Teitse 5768

Animal Welfare

Today’s sedra with its panoply of legislation brings the dream to life. Yes, says Moses in effect, we have left Egypt. We have reached the brink of the promised land. There will be wars to fight, battles to win, land to settle. But do not think these things are ends in themselves. They are means, preliminaries only. Our real task is to create a new kind of society, with G-d in its midst and respect for human dignity as its aim. We did not come out of Egypt only to create another Egypt. You, the next generation, are to become joint architects of a reality that will give practical expression to the dream.

Reading the sedra we are struck by the seemingly effortless interweaving of reality and the dream. Ki Teitse does not address a society of saints. It is a program for the real world with all its failings and conflicts. The opening is blunt. It speaks about soldiers who fall in love with the daughters of their enemies; about fathers who favor one son over others; about stubborn and rebellious children.

It is said that when the State of Israel was born, it was an overwhelming experience for visitors to see Jewish policemen, Jewish street cleaners, Jewish farmers. For eighteen centuries Jews had been confined to a narrow range of livelihoods. Now they were embarking on the normal life of nations. One gets something of this feeling reading the legislative program of Ki Teitse. No longer are we in the world of desert nomads who miraculously get water from rocks and bread from heaven. Israel in the promised land is going to be a nation with ordinary human problems which it must learn to deal with as graciously as possible.

“As graciously as possible” – that is the key. For though the legislation confronts ordinary human situations, it still resonates with high ideals. Five times the sedra uses the verb “remember.” Five times it makes reference back to Egypt. This is not to be a nation that begins life with a tabula rasa, a clean slate. It is to be one that never forgets its origins. The Egyptians treated you badly, Moses implies; therefore do not treat others badly. You are to become the opposite of Egypt. Use justice and compassion rather than power. Feel for the poor; do not afflict them. Honor sexual ethics rather than sexual desire. Don’t hand runaway slaves back to their masters. When you take security for a loan do it in such a way as not to humiliate or incapacitate the borrower. Small details; high ideals.

For Judaism takes time seriously – one of the hardest things for a nation to do. Most civilizations throughout history have been seduced by one of three alternatives; conservatism or defense of the status quo; revolution, the complete overthrowing of the status quo; or laissez faire, leaving society to unfold without a map, with no particular preference for one way rather than another.

By contrast, Judaism has a destination but it knows that getting there takes time. It takes time to abolish slavery, institute economic justice, create peace instead of war. It takes more than one generation. Therefore, says Moses, begin with small steps. Make things better, not perfect. At the same time, teach your children your ideals. That way, they will continue the journey and take it further. Judaism is about the long slow walk from real to ideal.

Ki Teitse is about relationships, between men and women, parents and children, employers and employees, lenders and borrowers. Strikingly though, it is also about relationships between humans and animals.

Descartes thought that animals lacked souls. Therefore you could do with them as you pleased. Judaism does not believe that animals lack souls – “The righteous person knows the soul [nefesh] of his animal, but the kindest acts of the wicked are cruel,” says the Book of Proverbs. To be sure, this is only nefesh [= life force]. Judaism is neither sentimental nor fetishistic. In the ancient world there were cultures that regarded certain animals as sacred. Reading Schopenhauer, one almost gets the impression that he cared more for animals than for human beings. Judaism does not go down either of these two roads. But it does regard animals as sentient beings. They may not think or speak, but they do feel. They are capable of distress. There is such a thing as cruelty to animals [tza’ar baalei chayyim], and as far as possible it should be avoided.

Thus, for example, in Ki Teitse we read:

Do not muzzle an ox when it is treading grain.

What is striking about this law is that it parallels provisions for human beings as well:

When you come [to work] in your neighbor’s vineyard, you may eat as many grapes as you desire to satisfy your hunger. However, you may not put any into a receptacle that you may have. When you come [to work] in your neighbor’s standing grain, you may take the ears with your hand. However, you may not lift the sickle [for your own benefit] in your neighbor’s grain.

The principle is the same in both cases; it is cruel to prevent those working with food from eating some of it. To be sure, in the case of humans there is a delicate balance of reciprocal responsibility. The employer must allow his employee to eat, but the employee must not engage in petty theft. But the parallel is instructive. Animals, too, have feelings and they must be respected.

Another law:

Do not plow with an ox and donkey together.

Here, two principles are at stake. The first is the avoidance of cruelty. The ox is stronger than a donkey. Expecting the donkey to do the work of an ox is unfair. The second principle can be seen by context:

Do not plant two kinds of seed in your vineyard; if you do, not only the crops you plant but also the fruit of the vineyard will be defiled.

Do not wear clothes of wool and linen woven together.

The underlying principle of all three laws is respect for biodiversity and the integrity of species. This is a good example of one of the underlying features of Jewish law, namely that Judaism is to be understood as a totality. G-d the lawgiver is also G-d the creator and G-d the redeemer. There are laws that echo the history of redemption (“and you shall remember that you were slaves in Egypt”). There are also laws that flow from the structure of creation. The laws above – against mixed seeds, mixed animals, mixed cloth – have their origin in the first chapter of Genesis:

Then God said, “Let the land produce vegetation, seed-bearing plants and trees on the land that bear fruit with seed in it, according to their various kinds.” And it was so. The land produced vegetation, plants bearing seed according to their kinds and trees bearing fruit with seed in it according to their kinds. And God saw that it was good…

And God said, “Let the land produce living creatures according to their kinds, livestock, creatures that move along the ground, and wild animals, each according to its kind.” And it was so. God made the wild animals according to their kinds, the livestock according to their kinds, and all the creatures that move along the ground according to their kinds. And God saw that it was good.

The repetition is unmistakable, as is the implication; creation is good when boundaries between distinct kinds are respected. This is the priestly voice in Judaism, the voice of order and respect for difference, the voice that “distinguishes” one thing from another and recognizes the place of each in the ecology of being.

A fascinating detail of animal legislation in the sedra is the law of “sending the mother bird away”:

If you come across a bird’s nest beside the road, either in a tree or on the ground, and the mother is sitting on the young or on the eggs, do not take the mother with the young. You may take the young, but be sure to let the mother go, so that it may go well with you and you may have a long life.

Much has been written on this command. Here I discuss only the analysis given by Moses Maimonides, fascinating in its complexity.

A law which appears twice in the Mishnah (Berakhot 5:3, Megillah 4:9) states that if a leader of prayer says, “Your mercies extend even to a bird’s nest,” he is to be silenced. The Talmud offers two possible explanations, one of which is that such a prayer “makes it seem as the attributes of G-d are [an expression of] mercy, whereas in fact they are [mere] decrees.” In both his commentary to the Mishnah and his code, the Mishneh Torah (Tefillah 9:7) Maimonides adopts this view and adds an explanation. If the reason for sending the mother bird away were Divine mercy toward animals then, in consistency, G-d should have forbidden killing animals for food. The law therefore should be understood as “a non-rational command [mitzvah shema’it] which has no reason.”

In the Guide of the Perplexed, (3:48) however, he adopts the opposite approach. There he rejects the very idea that there are commands which have no reason. Applying this to Torah legislation about animals, he says that meat-eating is necessary for human health. That is why the killing of certain animals for food is permitted. Shechitah, however, has been ordained because it is the most painless way to kill an animal (according to the most recent scientific research, it still is). He continues:

It is also prohibited to kill an animal with its young on the same day, in order that people should be restrained and prevented from killing the two together in such a manner that the young is killed in the sight of the mother, for the pain of the animals under such circumstances is very great. There is no difference in this case between the pain of human beings and the pain of other living beings, since the love and tenderness of the mother for young ones is not produced by reasoning but by imagination, and this faculty exists not only in man but also in most living beings… the same reason applies to the law which enjoins that we should let the mother bird fly away when we take the young…

Thus Maimonides, contrary to the stance he takes in his code, argues that the law does have mercy or compassion as its logic. Moreover, what it seeks to avoid inflicting is not physical but psychological pain. Maimonides’ remarks here anticipate recent findings in socio-biology which suggest that many species do indeed resemble humans in their ability to form groups, engage in reciprocal altruism, and display a range of emotions. In fact – as biblical law implies – it is almost always the mother that forms an ongoing bond with the young. Among animals fatherhood is usually far less developed. Thus the Torah’s concern with the mother animal or bird is empirically well founded.

Elsewhere in the Guide (3:17) however, Maimonides takes yet another position. In relation to humans, Divine providence extends to individuals; amongst animals, only to species. The reason we must not cause animals pain is not because the Torah is concerned about animals but because it is concerned about us. Human beings should not be cruel:

There is a rule laid down by our sages that it is directly prohibited in the Torah to cause pain to an animal. This rule is based on the words [of the angel to Bilaam], “Why have you beaten your ass?” The object of this rule is to make us perfect, that we should not assume cruel habits, and that we should not uselessly cause pain to others – that on the contrary, we should be prepared to show pity and mercy to all living creatures except when necessity demands the contrary.

Maimonides thus embraces three seemingly conflicting views:

1. The law of the mother bird is a Divine decree with no reason,

2. It is intended to spare the mother bird emotional pain,

3. It is intended to have an effect on us, not the animal, by training us not to be cruel.

In fact all three are true, because they answer different questions.

A parent tells a young child to go to bed early. The child obeys out of respect for parental authority, but that is not why the parent gave the order. From the point of view of the parent it was because she understands the child’s need for sleep. Likewise there is a difference between the reason we obey the law of the land (otherwise order would collapse) and the reason a particular law was legislated. Proposition 1. above tells us why we should obey the command to send the mother bird away, not why it was commanded in the first place. We should obey it because it is a Divine decree.

Moving to the reason for a particular law, there is a difference between immediate and ultimate concerns. Suppose there is a law against certain fuel emissions. The immediate reason may be that they contribute to global warming which damages the earth’s ecology. “So what?” someone might say. “The worst effects of global warming will be felt in places far from here, and besides, by the time they happen none of us will still be alive.” Such a person needs to be taught, not about global warming but about something else altogether, namely our collective responsibility to mankind and to future generations.

In the case of the mother bird, 2. tells us the immediate reason. To allow a mother bird to witness the death of its child is cruel. “So what?” someone might say. “A bird is only an animal, not a human being, and animals do not have rights.” To answer this we must move from immediate to ultimate reasons. “Cruelty is wrong whether practiced against animals or human beings – not because animals have rights but because we have duties. The duty not to be cruel is ultimately based on the need to acquire virtue and rid ourselves of vice. The primary context of virtues is the relationship between human beings. But virtues are indivisible. Those who are cruel to animals are often cruel to people. Cruelty to animals is forbidden not only because of its effect on animals but also because of its effect on us.” Hence proposition 3. Interestingly, Maimonides’ analysis was repeated almost exactly, six centuries later, by the greatest philosopher of modern times, Immanuel Kant.

Thus we begin to understand the subtlety of the Torah’s approach to ethics. The Israelites were commanded to create an ideal society. But this is the work, not of a day, but of many centuries. Hence the Torah’s vision of a journey of small steps. Each of the laws of Ki Teitse is justified in itself, but taken together and practiced for many generations, they begin to have larger effects. Husbands and wives, employers and employees, learn that relationship is built on respect, not the use of (physical or economic) power. Slowly the reasons that cause human beings to acquire others as slaves lose their legitimacy. Only then can slavery be abolished. And so on.

Within this moral ecology, respect for animals has a significant place. Animals too are part of G-d’s creation. They have their own integrity in the scheme of things. What is more – as we are now discovering – they are far closer to human beings than philosophers like Descartes thought. What is being rediscovered by science was known to Jews long ago because the great heroes of the Bible – Abraham, Moses, David – were shepherds. They lived their formative years watching over and caring for animals. That was their first tutorial in leadership, and they knew that this was one way of understanding G-d Himself (“The Lord is my shepherd”).

The Torah also understands what we are in danger of forgetting – that the moral life is too complex to summarize in a single concept like “rights.” As well as rights, there are duties – and there can be duties without corresponding rights. Animals do not have rights because they are not moral agents. Nonetheless, we have duties toward them. One of those duties, expressed in many Torah laws, is not to cause them unnecessary pain, and that includes, in the case of the mother bird, psychological pain.

We become what we worship, the Torah implies. At most times, ancient and contemporary, people have worshiped power. Jews learned early that the worship of power is idolatry. Power exalts one part of creation by diminishing another. The G-d of Abraham is the G-d not of a part but of the whole. Therefore a society based on Torah respects the whole, especially the powerless. Hence the consistent emphasis in Ki Teitse on the different categories of vulnerable individuals – women, employees, borrowers, animals – each of whom are often exploited, taken advantage of, used. That is not how you, My people, may behave, says G-d. Here is how you begin a journey whose end is a society of respect for the integrity of creation. Small steps to a momentous destination.