Zevachim 85b ~ The Tumtum and the Androgyne. In Birds.

In tomorrow's discussion of the blemishes that render a sacrifice unusable, we read the following:

זבחים פה, ב

 הנרבע והמוקצה והנעבד ואתנן ומחיר וטומטום ואנדרוגינוס כולן מטמאין בגדים אבית הבליעה 

A bird that was the object of bestiality, or that was set aside for idol worship, or that was worshipped as a deity, or that was given as payment to a prostitute or as the price of a dog, or that was a tumtum or a hermaphrodite, in all of those cases, if its nape was pinched, it renders the garments of one who swallows an olive-bulk from the carcass ritually impure when it is in the throat, as is the halakha with regard to all unslaughtered carcasses of birds. 

Only two kinds of birds - doves and pigeons - were offered as sacrifices, and there were only two kinds of sacrifice for which there were used: The bird chatat (sin offering) in fulfillment of an obligation, and the bird olah (burnt offering) brought either voluntarily, or at the fulfillment of an obligation.

There was an unusual practice of slaughtering these birds in the Temple called melikah, in which the fingernail of the Cohen pierced the nape of the neck. In tomorrow's daf yomi,  the Talmud (citing a Baraita) lists the blemishes that would render a bird sacrificed in this way as unusable. Since it is no-longer able to be sacrificed, its carcass now transmits ritual impurity.   Among these blemishes are a bird that was a tumtum (טומטום) or one that was  andogyneous (אנדרוגינוס).  There are a couple of different conditions associated with these words so let's first try and sort them out. 

So what is a tumtum?

A tumtum is a a creature (bird, human, whatever) born with ambiguous genitalia. Here is one place  from several found in the Talmud in Bava Basrah (126b) where this meaning is made explicit. It is discussing the question of a tumtum in humans, but the lesson is applicable to other species too.

בבא בתרא קכו, ב 

אמר ר' אמי טומטום שנקרע ונמצא זכר אינו נוטל פי שנים דאמר קרא  והיה הבן הבכור לשניאה עד שיהא בן משעת הויה

Rabbi Ami says: In the case of one whose sexual organs are indeterminate [tumtum]  and  whose skin became perforated so that his genitals were exposed and he was found to be a male, he does not take a double portion of his father’s estate.

A skin covering made it impossible to see the genitals of a person. Once the covering was removed, it became clear that it was a male. This is also the explanation offered by the Rashbam (Samuel ben Meir c.1085 – c. 1158):

בכור הנולד טומטום שאין ניכר בו לא זכרות ולא נקבות ולאחר זמן נקרע ונמצא זכר שהיה גיד שלו וביציו טמונין בגוף

And what about an Androgyne?

 Today, androgyny generally means "possessing both male and female characteristics."  It comes from the Greek:  ἀνδρ- (andr-, meaning man) and γυνή (gyné, meaning woman).  

A hermaphrodite has both both male and female genitalia, and the word is generally used to denote a subset of androgynes.  So, for example, Earthworms are hemaphrodites because they possess both male and female genitalia, and make both male and female gametes (sperm and eggs).

What sex is your dove? 

Either a male or female bird may be brought as a sacrifice.  There is is no need to check your bird's gender.  Which is just as well since determining the sex of a pigeon is a very difficult thing to do. In a 1955 paper on the subject titled Sexing Mature Columbiformes by Cloacal Characters, the authors note that there was no known "simple and reliable method for sexing living individuals" of the order columbiformes, which contains both pigeons and doves.  But should you find some urgent need to do so, grab a modified nasal speculum and follow these simple steps:

[the] bird is held under a light, head downward and feet toward the operator. [The plate] demonstrates this pictorially, although in order to show the insertion of the instrument, the bird is held more horizontally in the picture than it would be in practice. A few small feathers around the vent are plucked. The observer's left forefinger holds back the rectrices and under-tail coverts while the thumb restrains the feathers ventral and anterior to the vent. The head of the instrument is inserted gently to a depth of about one centimeter and directed to the left (to ten o'clock considering the cloaca as a horizontal clock face). The jaws are expanded and at the same time a slight forward and upward pressure (dorsal and posterior to the bird) is applied. This has the simultaneous effects of spreading the lips of the vent, pushing forward (dorsad) the left and slightly posterior wall of the cloaca, and erecting the papilla if the bird is a male. To view the opposite side (not necessary for the sexing process), the instrument is turned in the opposite direction and handled in the same manner.

Yes. That's all there is to it. Which raises the following question: what exactly is a tumtum bird  - that is, a bird with ambiguous genitalia? How on earth would a person know his bird had ambiguous genitalia, when it is practically impossible to distinguish a male from a female bird?  It also raises the following only slightly more uncomfortable question: how is it possible for a human to sodomize a pigeon or a dove? Owing to the challenges of anatomy, the ruling of the ּBaraita that a sodomized bird cannot be brought as a sacrifice must have been theoretical in the extreme. Even so, Maimonides took the time to include it in his list of disqualified birds:

רמב’ם הל׳ פסולי המקדשין ז,  ג

אֲבָל הַנִּרְבָּע וְהַמֻּקְצֶה וְהַנֶּעֱבָד וְהָאֶתְנָן וְהַמְּחִיר וְהַטֻּמְטוּם וְהָאַנְדְּרוֹגִינוּס שֶׁנִּמְלְקוּ. הֲרֵי אֵלּוּ נְבֵלָה לְכָל דָּבָר וּמְטַמְּאִין בְּגָדִים בְּבֵית הַבְּלִיעָה. שֶׁאֵין הַקְּדֻשָּׁה חָלָה עֲלֵיהֶן וַהֲרֵי אֵין פְּסוּלָן בְּקֹדֶשׁ:

But never say "Never"

From Peer and Motz, here. 

Just when you think this whole hermaphrodite bird thing is a figment of the talmudic imagination, nature reminds you that there is no end to her cunning. Writing in 2014 in The Wilson Journal of Ornithology, two biologists described a Northern Cardinal (the bird, not the Church official) that was a bilateral gynandomorph. (Bilateral gynandromorphy is a condition in which one half of a bird’s body appears as a female and the opposite half appears as a male.) "The bird" they reported, "exhibited the typical bright red color of a male cardinal on the left half of its body, and the dull brownish-gray appearance of a female cardinal on the right half." The plumage of our sacrificial birds does not differ between males and females, but even so, this paper reminds us that the notion of androgynous birds might not only be of theoretical importance after all.

Zevachim 74a ~ Talmudic Probability Theory II

Our first deep dive into the math surrounding Talmudic Probability Theory was back in February 2015 when we were studying Ketuvot.  Today's Daf Yomi addresses the same theme, and thanks to some clever work by a contemporary mathematician we are able to provide some new insights today's page of Talmud.

Don't touch that goat

The reason we even get into this subject is a Mishnah that opens the eighth chapter of Zevachim, and which we studied just four days ago. There, the Mishnah rules on the problem of animals that must not be sacrificed getting mixed up with groups of those same animals that may be sacrificed. We have already learned that under usual circumstances, when a forbidden object falls into a majority of similar objects that are permitted, the prohibition is annulled, so that if one draws any object it is permitted (Zevahim 72a). However, the prohibition against idol worship is so strong that the usual rule allowing the minority object to be annulled in favor of the majority is not in play. This is made explicit in the definitive Shulchan Aruch, the Code of Jewish Law: 

שולחן ערוך יורה דעה 140:1

עֲבוֹדַת כּוֹכָבִים וּמְשַׁמְּשֶׁיהָ וְתִקְרָבְתָּהּ, אוֹסְרִים בְּכָל שֶׁהוּא, שֶׁאִם נִתְעָרֵב אֶחָד מֵהֶם, אֲפִלּוּ בְּאֶלֶף, כֻּלָּן אֲסוּרוֹת

Objects used for idol worship or their accessories are forbidden in any amount. So even if one of these objects was mixed into a group of one thousand, it is forbidden to derive any benefit from the entire group.

What about a 40:60 split?

Here is today's page of Talmud:

זבחים עד, א

אמר רב טבעת של עבודת כוכבים שנתערבה במאה טבעות ופרשו ארבעים למקום אחד וששים למקום אחר פרשה אחת מארבעים אינה אוסרת אחת מששים אוסרת

Rav says: With regard to a ring used in idol worship that was intermingled with one hundred permitted rings, and then forty of them became separated to one place, and the other sixty became separated to another place, so that they are now two distinct groups of rings, if one ring from the group of forty became separated from them and then became intermingled with other rings, it does not render them prohibited. But if one ring from the other sixty became separated from its group and became mixed with other rings, it renders them prohibited.

The talmudic reasoning here is not straightforward, (even with a lengthy attempt by Rashi) which is why we have to thank Rabbi Nahum Eliezer Rabinovitch (b.1928), the Rosh Yeshiva of the hesder Yeshivah Birkat Moshein Ma'ale Adumim.  (He also has a PhD. in the Philosophy of Science from the University of Toronto, published in 1973 as Probability and Statistical Inference in Ancient and Medieval Jewish Literature.)  In a paper published in 1969, Rabbi Rabinovitch reconstructs what he he calls "a plausible line of reasoning."

Rabinovitch N.L. Probability in the Talmud. Biometrika 1969, 56 (2): 437-441

As we have noted before, James Franklin, in his book on the history of probability theory, wrote that codes like the Talmud (and the Roman Digest that was developed under Justine c.533) "provide examples of how to evaluate evidence in cases of doubt and conflict.  By and large, they do so reasonably. But they are almost entirely devoid of discussion on the principles on which they are operating." But it is unfair to expect the Talmud to have developed a notion of probability theory as we have it today. That wasn't its interest or focus. Others have picked up this task, and have explained the statistics that is the foundation of  talmudic probability. For this, we have many to thank, including the Rosh Yeshiva, Rabbi Rabinovitch שליט׳א.

“(The [Roman] Digest and) the Talmud are huge storehouses of concepts, and to be required to have an even sketchy idea of them is a powerful stimulus to learning abstractions.”

— James Franklin. The Science of Conjecture: Evidence and Probability Before Pascal, 349.

[For more on Rabbi Rabinovitch and tamludic probability, see our post here, from where some of this is taken.]

Zevachim 70b ~ The Prosecution (& Punishment) of Animals

Tractate Zevachim addresses the laws of sacrifices. Chapter eight, which we started learning today, opens with the case of a group of animals awaiting sacrifice that became intermingled with an identical animal that is forbidden to sacrifice. That causes a major problem:

 כל הזבחים שנתערבו בחטאות המתות או בשור הנסקל אפילו אחת בריבוא ימותו כולן נתערבו בשור שנעבדה בו עבירה או

MISHNA: All the offerings that were intermingled with animals from which deriving benefit is forbidden... for example an ox that was sentenced to be stoned, even if the ratio is one in ten thousand, deriving benefit from them all is prohibited and they all must die...

Sentencing an animal to death? Putting animals on trial? That's quite a concept. We have discussed this before, when learning Sanhedrin and Bava Kamma. But that was a year ago, so let's remind ourselves of the odd judicial notion of putting animals on trial for their alleged crimes.

סנהדרין טו, א

 שור הנסקל בעשרים ושלשה: שנא' השור יסקל וגם בעליו יומת כמיתת הבעלים כך מיתת השור

An ox that may be punished with stoning is tried by a court of twenty-three judges: As it is stated "the ox shall be stoned and its owner shall be put to death" (Ex. 21:29). The juxtaposition teaches that in the manner in which the owner is put to death, so too is the ox put to death.  

In Sanhedrin, the case of an ox that sodomizes a person is discussed. The bovine in question stands trial, and if found guilty is executed. We have already encountered the trial of oxen in another context, that time concerning an ox that gored a person to death:

בבא קמא צ, א 
תנו רבנן שור תם שהמית והזיק דנין אותו דיני נפשות ואין דנין אותו דיני ממונות מועד שהמית והזיק דנין אותו דיני ממונות וחוזרין ודנין אותו דיני נפשות קדמו ודנוהו דיני נפשות אין חוזרין ודנין אותו דיני ממונות 

The rabbis taught: a tam ox that killed a person and inflicted damages, is tried first for the capital case and is not tried for the damages. A muad ox that killed a person and inflicted damages is tried first for the damages and is then tried for the capital case.  

The notion that an animal should be tried for a crime is a completely foreign one to our modern sensibilities. Animals do not commit crimes; they act on instinct. When those instincts lead to a conflict with human society animals might be removed, or killed. But tried for a crime? Isn’t that an odd notion? Not so much, it turns out.

On the prosecution of ANIMALS

In her review article The historical and contemporary prosecution of animals, Professor Jen Girgen noted that the formal prosecution of animals existed for centuries. Aristotle (d.322 BCE) mentioned animal trials in Athens, although there is no direct evidence of them having taken place in ancient Greece. The earliest known records of animal trials are from the mid-13th century. For example, in France in 1386, a pig was put on trial for the death of a child:

  
The defendant was brought before the local tribunal, and after a formal trial she was declared guilty of the crime. True to lex talionis, or "eye-for-an- eye" justice, the court sentenced the infanticidal malefactor first to be maimed in her head and upper limbs and then to be hanged. A professional hangman carried out the punishment in the public square near the city hall. The executioner, officially decreed to be a "master of high works," was issued a new pair of gloves for the occasion in order that he might come from the discharge of his duty, metaphorically at least, with clean hands, thus indicating that, as a minister of justice, he incurred no guilt in shedding blood.

In medieval times, animals were tried in two different court systems. The Church handled cases in which animals were a public nuisance (usually because they ate a farmer’s crops) while secular courts judged cases involving the physical injury or death of person.  Apparently these trials were taken seriously: “The community, at its own expense, provided the accused animals with defense counsel, and these lawyers raised complex legal arguments on behalf of the animal defendants. In criminal trials, animal defendants were sometimes detained in jail alongside human prisoners. Evidence was weighed and judgment decreed as though the defendant were human.”  Animals that faced these trials included swans, rodents, dolphins (dolphins!) grasshoppers, and, in 1713, a nest of termites, which was I suppose fair enough. The termites were munching their way through a monastery, devouring the friars' food, destroying their furniture, and even threatening to topple the walls of the monastery. 

“The ox is to be executed, not because it had committed a crime, but rather because the very act of killing a human being- voluntarily or involuntarily-had rendered it an object of public horror.
”

— JJ Finkelstein. The ox that gored. Transactions of the American Philosophical Society, Vol. 71, No. 2 (1981), pp. 1-89

The animals that faced prosecution would rarely appear in court on their trial day (because, I suppose, they had other things on their mind) so they usually lost the case by default.  Here’s a fairly typical example. In 1575 weevils were helping themselves to the vineyards in a picturesque hamlet in France, and were brought to trial:

The plaintiff and the two lawyers appointed as counsel for the beetle defendants presented their respective sides of the case…Pierre Rembaud, the beetles' newly appointed defense counsel, made a motion to dismiss the case. Rembaud argued that, according to the Book of Genesis, God had created animals before human beings and had blessed all the animals upon the earth, giving to them every green herb for food. Therefore, the weevils had a prior right to the vineyards, a right conferred upon them at the time of Creation… While the legal wrangling continued, the townspeople organized a public meeting in the town square to consider setting aside a section of land outside of the Saint Julien vineyards where the insects could obtain their needed sustenance without devouring and destroying the town's precious vineyards. They selected a site named "La Grand Feisse" and described the plot "with the exactness of a topographical survey."…However, the weevils' attorney declared that he could not accept, on behalf of his clients, the offer made by the plaintiffs. The land…was sterile and not suitable to support the needs of the weevils. The plaintiff’s attorney insisted that the land was, in fact, suitable and insisted upon adjudication in favor of the complainants. The judge decided to reserve his decision and appointed experts to examine the site and submit a written report upon the suitability of the proposed asylum.

How did this case end? We have no idea.  The last pages of the court records were (I kid you not) eaten by insects.  

The Source- our Hebrew Bible

The impetus for all this, according to historians, was our own Hebrew Bible, or more precisely, the passage from Exodus 21:28.

 וְכִי-יִגַּח שׁוֹר אֶת-אִישׁ אוֹ אֶת-אִשָּׁה, וָמֵת סָקוֹל יִסָּקֵל הַשּׁוֹר, וְלֹא יֵאָכֵל אֶת-בְּשָׂרוֹ, וּבַעַל הַשּׁוֹר, נָקִי

"If a bull gores a man or woman to death, the bull is to be stoned to death, and its meat must not be eaten. But the owner of the bull will not be held responsible.

The Jewish scholar Bernard Jackson, (who seems to have spent his entire career studying the legal history of the goring ox,) noted this connection.  “The stoning of the goring ox”, he wrote, 

… may well have been the parent, rather than the child, of the idea of divine punishment of animals .... [O]nce the concept of divine punishment of animals became established, it could then be transferred back to the legal sphere as a primarily penal notion.

What sense can we make of these medieval trials – and what sense can be made of the earlier Talmudic law that also placed animals on trial for their actions? Girgen suggests a number of possible ways to explain these trials, which seem to have become increasingly popular in the middle ages. 

1. Rehabilitation of the offending animal. This is not a satisfying explanation, since “these proceedings usually ended with the execution of the animal.” That left little opportunity for rehabilitation.  
2. Retribution, which is another word for revenge.  Indeed, this is precisely the notion reflected in the biblical law of “an eye for an eye”- although of course that was not the way the rabbis of the Talmud interpreted the verse.  Under Roman law, the Torah law of  עין תחת עין was called lex talionis – the law of retaliation.  This need to retaliate was, according to Justice Oliver Wendell Holmes, a key feature of early legal systems, which were “…grounded in vengeance.” 
3. Revenue for the king.  This would only explain cases in which the animal was impounded or confiscated from the owner and given over to the king or local lord. But this did not happen when the animal was executed – which apparently was a frequent outcome of these trials.
4. The elimination of a social danger. Now, this begins to sound familiar. In the US and other western countries, vicious dogs are, after all, put down, and when this happens we breathe a collective sigh of relief.  So by sentencing a dangerous animal to death, the courts were making life safer for everyone else.
5. Deterrence – that is, “to dissuade would-be criminals - both animal and human-from engaging in similar offensive acts”.  As the legal scholar Nicholas Humphrey noted, "if word got around about what happened to the last pig that ate a human child, might not other pigs have been persuaded to think twice?” That implies endowing animals with an agency that we would consider today to be quite fanciful. So perhaps the deterrent effect was not aimed at other animals, but rather at other humans – deterring them from committing these kinds of horrible crimes.  
6. Establishing control in a disorderly world. Perhaps these trials were a search for order in a world of chaos.  “Just as today,” wrote Professor Humphries “when things are unexplained, we expect the institutions of science to put the facts on trial ... the whole purpose of the legal actions was to establish cognitive control.".  The good professor continues:  

What the Greeks and mediaeval Europeans had in common was a deep fear of lawlessness: not so much fear of laws being contravened, as the much worse fear that the world they lived in might not be a lawful place at all. A statue fell on a man out of the blue; a pig killed a baby while its mother was at Mass; swarms of locusts appeared from nowhere and devastated the crops .... To an extent that we today cannot find easy to conceive, these people of the pre-scientific era lived every day at the edge of explanatory darkness.

By defining events as crimes rather than as natural occurrences, they could be placed within a legal context – and controlled. The late JJ Finkelstein of Yale University (d. 1974) wrote one of the most detailed studies of the ox that gored (called, rather unimaginatively, The Ox that Gored). On page 24 of his 86-page essay he addressed this aspect:

[T]he "crime" of the ox that gored a person to death is not just to be found in the fact that it had "committed homicide.". . .The real crime of the ox is that by killing a human being-whether out of viciousness or by an involuntary motion, it has objectively committed a de facto insurrection against the hierarchic order established by Creation.  

Trials of animals in more recent Times

Animal trials continued well into the twentieth century. In 1906 in Switzerland a dog was sentenced to death for killing a man, while his masters – who had used the dog to help them rob the man - were sentenced to life in prison. In 1924, Pep, a Labrador retriever, was accused of killing Pennsylvania Governor Gifford Pinchot's cat. 

The dog was tried (without the assistance of counsel) in a proceeding led by the Governor himself.  Governor Pinchot found Pep responsible for the cat's death and sentenced the dog to life imprisonment in the Philadelphia State Penitentiary. Pep died of old age, still incarcerated, six years later… And in 1927, a dog was reportedly tried and incarcerated by a Connecticut justice of the peace for "worrying the cat of a neighbor lady.”

In fact, “trials” of dangerous animals continue to this day. Depending on where you live, a judge may rule an animal to be dangerous if it has attacked others, and may order it destroyed.  This is what happened in New Jersey in 1991, when Taro, a 110 lb Japanese Akita dog was sentenced to death by a judge in Bergen County, after it had apparently attacked its owner’s niece. Taro’s owner appealed the verdict and the dog remained on death row for three years, until the order to execute the dog was upheld.  That’s when newly elected Governor Christin Todd Whitman issued an executive order and reprieved the dog, which by now had been imprisoned for more than one thousand days at a cost to the state of more than $100,000. Taro was exiled from New Jersey, and died in her sleep five years later. 

What do we talk about when we talk about punishment?

What is it that we want to see happen when we call for a criminal to be “punished”?  This simple question has been answered by legal scholars and judges who have written about theories of punishment, but we knew little about what the average citizen wants to see happen when a punishment is imposed. 

In a series of experiments published in 2002, psychologists from Princeton and Northwestern University studied the motivation underlying use of punishment in a group of students; that is to say, in people with no special legal training or background. What are the motives of ordinary people when they wish to punish a criminal? (Ok, they weren’t exactly “ordinary people, since they were Princeton University students, but still…)The two specific motives they contrasted were just deserts and deterrence. The “just desserts” theory is the belief that when punishing a criminal, our concerns should not be about future outcomes like rehabilitation, but rather about providing a punishment appropriate for the given crime. “Although it is certainly preferable that the punishment serve a secondary function of inhibiting future harmdoing, its justification lies in righting a wrong, not in achieving some future benefit. The central precept of just deserts theory is that the punishment be proportionate to the harm.”  So what motivates the theory of punishment in ordinary people? Does it come from a deservingness perspective, in which the focus is on atoning for the harm committed, or from a utilitarian, deterrence perspective, in which the focus is on preventing future harms against society? 

The psychologists found that in sentencing hypothetical criminal perpetrators, their student subjects responded to factors associated with the “just deserts theory” and ignored those associated with deterrence. This desire to see a criminal get his just desserts is also found when animals are put on trial.  More recent work by the psychologists Geoffrey Goodwin and Adam Benforado also addressed the way in which we view punishment as retribution.  They asked volunteers (found on-line using something called Amazon's Mechanical Turk interface) about a number of different scenarios in which animals had killed or injured people. In five different studies the results demonstrated "...clear evidence for the existence of retributive motives and for a broader conception of the viable targets of retribution."

Back to the goring, Or SODOMIZING ox

In the view of J.J. Finkelstein, the Yale scholar, “the system of categorization reflected in the biblical statement of the laws of the goring ox is essentially the same as our own… the cosmic apprehension of the biblical authors, the way in which the Bible perceives and classifies the world of experience, is in every fundamental respect identical with ours, that is, with that of the civilization we usually describe as "Western.” Once we understand that animal trials were not just an interesting quirk mentioned in today’s page of Talmud, but were – and still are - a common part of the judicial process, Finkelstein’s claim view is entirely plausible.  This, together with the insights from the field of psychology about what motivates people to punish others, leads us to a remarkable conclusion.  Moderns, like those before us, seek to punish, not to rehabilitate the criminal or deter others from committing a crime, but because the criminal “deserves to be punished”. It matters not one bit if that criminal is a human, a dog, or an insect.  

[Repost from Bava Kamma 90a]