The Great American Eclipse is Almost Here

It is coming. It cannot be stopped. On Monday August 21 there will be a solar eclipse visible to millions of people across north America.  It will be the first total eclipse to cross the continental United States since 1918, and the first to touch any part of the U.S. since 1979. 

I will be traveling to Charleston, South Carolina, to witness the totality.  (Charleston is also hosting the American Atheist Eclipse Convention, if you are interested.)  Brith Sholom Beth Israel will have a viewing party from the roof of their synagogue -"the last place to see the eclipse on land." It will the first total eclipse for me, and I am ready with my viewing glasses.

What does the Talmud have to say about the cause of a solar eclipse? (You would be very surprised.) You can find my essay on the topic here, which will also be published in the journal Hakirah - sometime after the event....

Happy viewing.

The Forward, Sunday Jan 25, 1929

The Forward, Sunday Jan 25, 1929



Sanhedrin 15b ~ The Prosecution (& Punishment) of Animals

From Monty Python's Life of Brian.

From Monty Python's Life of Brian.

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 today's page of Talmud we are addressing the punishment of an ox that sodomizes a person. 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]

Sanhedrin 11b ~ The Tekufot

The Jewish leap year

The Jewish year usually contains twelve lunar months. In today's page of Talmud we learn the reasons that the rabbis may add an extra month to the Jewish calendar, and proclaim a thirteen month leap year:

סנהדרין יא, ב

תנו רבנן על שלשה דברים מעברין את השנה על האביב ועל פירות האילן ועל התקופה על שנים מהן מעברין ועל אחד מהן אין מעברין

The rabbis taught in a Baraisa. We may intercalate a month and declare a leap year on account of three things: On account of the grain's ripening after the month of Nissan, on account of the fruit ripening after Shavuot, and on account of a season [tekufah] that is scheduled to begin in the wrong calendar month. We intercalate the year if two of these reasons are present, but for just one of these reasons we do not intercalate.

Let's look at the last reason. If the season is scheduled to being in 'the wrong month', the rabbis adjust the length of the year to bring it back into line.  Pesach must always fall in the Spring, so if the 15th of Nissan is part of the season of winter, we add another lunar month to the previous year and so push Pesach into Spring. 

The Solar Year, according to Shmuel

Here is the thinking behind this.  The rabbis of the Talmud, led by Shmuel, believed that a solar year was 365.25 days long, or 365 days and 6 hours. No more and no less. (This is also the length of the Julian calendar, adopted by Rome and all of Europe, including the Catholic Church.  It was the prevailing calendar in Europe, so Shmuel was in good company. ) Shmuel also believed that each of the four seasons was precisely one quarter the length of the solar year, or 91 days and 7.5 hours. Jewish tradition taught that the Sun was created on what would have been a Tuesday at 6pm. This time was also considered by the rabbis to have been the vernal equinox and the start of  Spring in the first year of creation.  Summer would therefore have started 91 days and 7.5 hours later, and fall another 91 days and seven hours after that.  The cycle repeats itself every 4 years, at which time the start of Spring will once again be at precisely 6pm, though not on a Tuesday. (It takes 28 years for the start of Spring to once again fall on a Tuesday at 6pm - and the next day is when we celebrate the rare event of Birkat Hachama. But I digress.)

Two Problems with Shmuel's Jewish Calendar

The first problem is that the solar year is not exactly 365 days and 6 hours in length. In fact it is 365 days, 5 hours, 48 minutes and 46 seconds - or 11 minutes and 14 seconds shorter than the Julian/Talmudic year. That's a small difference to be sure, but it adds up to three days every 400 years.  As a result of this difference, Spring, as measured by the day of the equinox, kept falling behind. In the days of Julius Caesar it had started on March 21, but by 1582 it had fallen behind and coincided with March 11. To bring the calendar back on track, Pope Gregory XIII knocked ten days out of the calendar, declaring the day after October 4, 1582 to be October 15th.  He also instituted a leap year of one extra day every four years, (except for years divisible by 100).  Shmuel's calendar had no similar fix, and the start of Spring in that calendar is about two weeks away from the actual, measurable Spring equinox.  

Path of the sun as seen over the northern hemisphere. On June 21, the start of summer the sun is at its most northern position. On Dec 21, the start of winter, it is at its most southern position.    

Path of the sun as seen over the northern hemisphere. On June 21, the start of summer the sun is at its most northern position. On Dec 21, the start of winter, it is at its most southern position.    


A second problem with Shmuel's calculation of the four seasons is that he attributed the same length to each, when in fact the seasons are not of equal length. This is because the earth does not revolve around the sun in a perfect circle, but instead has an elliptical orbit.  When the earth is closer to the sun it speeds up, and when it is further away it slows down.  In fact not one of the four seasons are 91 days and 7.5 hours in length. Here are the actual lengths:

Spring - about 92 days

Summer  - about 93 days

Fall - about 90 days

Winter - about 89 days

Shmuel's orderly system has no astronomical basis, and his seasons do not follow an orderly and predictable pattern. If you were to ask, "what happens in the sky at the beginning of Spring according to Shmuel?"the correct answer is nothing.  If you were to ask the same question of the actual day and time on which Spring begins, the answer would be "on that day and at that precise moment, the tilt of the earth's axis is exactly perpendicular to the sun."

Here are the actual start days of the seasons for this year, and their start according to the calendar of Shmuel.  

Start of the Seasons
Season Astronomical Shmuel
Times are for Jerusalem
Spring March 20
6:29 A.M. EDT
April 7
Summer June 21
12:24 A.M. EDT
July 8
10.30 AM
Fall September 22
4:02 P.M. EDT
Oct 7
Winter Dec 21
11:28 A.M. EST
Jan 6

Shmuel's calendar is pretty accurate, but over time, small discrepancies become larger.  Pope Gregory instituted a fix, but we have yet to do so. By not tweaking our Jewish calendar, the average date of the first day of Pesach is one day later every 216 years compared to the Sun, and one day every 231 years compared to the Gregorian date. This may not seem like a problem now.  But around the year 15,000 CE [sic] the first day of Pesach will occur on June 22, which is clearly not in the Spring. But I guess by then it will be somebody else's problem to fix.