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Parashat Ki Tetze: Taking into Account Animals’ Feelings by Yaakov Bieler

August 28, 2012 by  
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Certain workers’ rights.

In Parashat 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]

Why not collect verses dealing with the same subject matter in the same place?

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 HaParashiot”) 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 can human beings and animals working in the fields comparable?

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]

Once animals became designated as a food source, did this diminish the concern that humans must have and demonstrate towards members of the animal world?

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 seven 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.

Are there limitations upon the contexts in which animals can be employed by man?

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 then permissible, and perhaps even an actual Mitzva, despite the pain and discomfort engendered by such procedures?

What is implied when man is given “dominion” over the animal world at Creation?

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?

Is “projection” the key to understanding Mitzvot dealing with animals?

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 Parashat 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 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.

Conclusion

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.


[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 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 eleven 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 Shabbat 10a and Meshech Chachma on BaMidbar 15:39.

[5] The assumption of the validity of “Semichut HaParashiot” (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 nine 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 any more than has been called for.

In effect, MaLBIM understands the “Semichut HaParashiot” 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 from 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 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), RaMBaN 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 careful regarding 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.”

VaYkira 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 seven 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 “Adamiterather than the “Noachide” Commandments.

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