Cruelty to animals

Chullin 121b ~ Shechita, Pain and and Modern Sensibilities

Mayer Kirshenblatt.  The Illegal Slaughter . From Mayer Kirshenblatt and Barbara Kirshenblatt-Gimblett,  They Called Me Mayer July: Painted Memories of a Jewish Childhood in Poland Before the Holocaust . University of California Press. n.d. p114

Mayer Kirshenblatt. The Illegal Slaughter. From Mayer Kirshenblatt and Barbara Kirshenblatt-Gimblett, They Called Me Mayer July: Painted Memories of a Jewish Childhood in Poland Before the Holocaust. University of California Press. n.d. p114

חולין קכא,ב

הרוצה שיאכל מבהמה קודם שתצא נפשה חותך כזית בשר מבית שחיטתה ומולחו יפה יפה ומדיחו יפה יפה וממתין לה עד שתצא נפשה ואוכלו אחד עובד כוכבים ואחד ישראל מותרין בו

One who wishes to eat from the meat of a slaughtered animal before its soul departs may cut an olive-bulk of meat from the area of its slaughter, the neck, and salt it very well and rinse it very well [in water to remove the salt and blood,] and then wait until the animal’s soul departs, and then eat it. Both a gentile and a Jew are permitted to eat it [because the prohibition against eating a limb from a living animal is not applicable in such a case].

מסייע ליה לרב אידי בר אבין דאמר רב אידי בר אבין א"ר יצחק בר אשיין הרוצה שיבריא חותך כזית בשר מבית שחיטה ומולחו יפה יפה ומדיחו יפה יפה וממתין לה עד שתצא נפשה אחד עובד כוכבים ואחד ישראל מותרים בו

This teaching supports the opinion of Rav Idi bar Avin, as Rav Idi bar Avin said that Rav Yitzḥak bar Ashyan said: One who wants to be healthy should cut an olive-bulk of meat from the area of the slaughter, and salt it very well and rinse it very well, and then wait until the animal’s soul departs, and then both a gentile and a Jew are permitted to eat it.

Today we learn about a very strange (and disturbing) talmudic folk tradition. If you want to stay healthy, cut some meat from the throat of an animal that had been slaughtered by the usual method of shechita - but do so before the animal has died. Since there is a very strong prohibition against eating meat taken from a living animal, the Talmud goes out of its way to note that it does not apply in this case. The folk remedy apparently demanded that the meat be taken before the animal is dead - and so waiting would defeat the whole purpose.

Now this sounds pretty cruel. But since the Talmud brought it to our attention (and permitted or even encouraged it) we must take a detailed look into the question of how our modern sensibilities and our modern science might approach the complicated question of the relationship between animal suffering and shechita.

The new Belgian requirement for animal stunning

Shechita.jpg

As of January 1st, 2019 Belgian authorities have essentially banned both the Muslim and Jewish methods of ritually slaughtering animals. In case you missed it, here is part of The New York Times report from Jan 5th:

Laws across Europe and European Union regulations require that animals be rendered insensible to pain before slaughter, to make the process more humane. For larger animals, stunning before slaughter usually means using a “captive bolt” device that fires a metal rod into the brain; for poultry it usually means an electric shock. Animals can also be knocked out with gas.

But slaughter by Muslim halal and Jewish kosher rules requires that an animal be in perfect health — which religious authorities say rules out stunning it first — and be killed with a single cut to the neck that severs critical blood vessels. The animal loses consciousness in seconds, and advocates say it may cause less suffering than other methods, not more…

“The government asked for our advice on the ban, we responded negatively, but the advice wasn’t taken,” said Saatci Bayram, a leader of the Muslim community. “This ban is presented as a revelation by animal rights activists, but the debate on animal welfare in Islam has been going on for 1,500 years. Our way of ritual slaughtering is painless…”

The idea for the ban was first proposed by Ben Weyts, a right-wing Flemish nationalist and the minister in the Flanders government who is responsible for animal welfare. Mr. Weyts was heavily criticized in 2014 for attending the 90th birthday of Bob Maes, who had collaborated with the Nazi occupation of Belgium in World War II and later became a far-right politician.

Animal rights groups applauded the legislation. When it was approved by the Flemish Parliament in June 2017, Mr. Weyts hailed the vote on Twitter, writing: “Proud animal minister. Proud to be Flemish…”

Rabbi Schmahl [a senior rabbi in Antwerp] cited another Belgian law that was recently enacted, to regulate home schooling — a common practice in his community — as an example of a pattern of laws in Europe making it increasingly difficult for observant Jews to live according to their traditions.

“It definitely brings to mind similar situations before the Second World War, when these laws were introduced in Germany,” he said.

It’s all there. A claim that shechita is less humane than slaughter by captive bolt; allegations that it’s all a plot by anti-semites (in the real sense of the word - targeting both Jews and Muslims); counter-claims that shechita is more humane than other methods and finally a throwback to the Holocaust (proving, once again, the accuracy of Godwin’s law). Two days later a New York Times editorial appeared: When Animal Welfare and Religious Practice Collide:

It should be obvious to any reader…that there is bound to be impassioned debate on the issue. And indeed animal-rights advocates and religious leaders have squared off on social media and the internet, citing volumes of scriptural injunctions and scientific studies…

The debate, moreover, is hardly new. Regulations across the European Union require stunning an animal before slaughter, a practice that generally means either firing a bolt into its brain or an electric shock…

The pretexts of some politicians does not mean all those who insist on stunning have dubious motives. Animal-rights activists have long campaigned, justifiably and successfully, for the humane treatment of animals destined for the table. Many earnestly believe that slashing the neck of a conscious animal causes more suffering than stunning the animal first…

Whether that’s so should be a matter of continuing study by the meat and poultry industries, animal scientists, veterinarians and governments. There is no question that the animals we raise for food should be exposed to the least suffering possible, just as there is no question that killing a healthy creature has enormous potential for cruelty.

But those who really care about the welfare of animals should be wary of making common cause with right-wing nationalists whose hostile intent is to make life more difficult for religious minorities. A real conversation on balancing animal rights and religious freedoms can take place only if it is free of hidden bigotry.

What we Used to believe about Animals and pain

They eat without pleasure, cry without pain, grow without knowing it; they desire nothing, fear nothing, know nothing...
— Nicolas Malebranche. Oevres completes. ed G. Rodis Lewis. Paris, J/ Vrin 1970. II. 394.

Just a few hundred years ago, any discussion about animals feeling pain would have been dismissed as nonsense. It was Rene Descartes (the one who gave us “I think therefore I am”) who opined that animals were automatons. Any signs that they were experiencing pain was, he believed, a reflex, and did not represent the suffering of a conscious animal. Vivisection, in which live animals were used in scientific experimentation, was standard practice in early modern Europe. Here is an example, written by Willam Harvey (d. 1657), the man who is credited with discovering the circulation of the blood:

If one performed Galen’s experiment and incised the trachea of a still living dog, forcibly filling its lungs with air by means of bellows, and ligated them strongly in the distended position, one would find, on rapidly opening the chest, a great deal of air in the lungs…

In his book Bad Medicine, the historian David Wootton added this:

In the 1970s the Royal Society made a film for schools that reproduced Harvey’s vivisections. I have met two people who were shown it at school; both told me that they could not bear to watch it all, and that some of their co-students fainted.

As we have seen previously, animals were regularly put on trial in talmudic times through to the middle ages. It’s a paradox that on the one hand we once thought of animals of being culpable for crimes, while on the other we believed them incapable of thought or experiencing pain. We know a lot more today. Animals feel pain. About this there is fortunately no more debate. But there is a question about how an animal that is slaughtered feels pain, and how that pain may be reduced.

Shechita and Pain

It has been a foundational belief by those who defend it in modern times that shechita is a painless and humane method of slaughter. “It is a popular myth that Shechita is a painful method of slaughter. In fact, there is ample scientific evidence to the contrary” said Henry Grunwald (OBE QC!) Chairman of Shechita UK. “The Shechita process requires the rapid uninterrupted severance of major vital organs and vessels which produces, inter alia, instant drop in blood pressure in the brain…and [the] irreversible cessation of consciousness and sensibility to pain… producing a painless and effective stun and instant insensibility – followed without delay by immediate death.” In the US, the Orthodox Union claimed that “shechita is more humane than the common non-kosher form of shooting the animal in the head with a captive bolt…The Humane Slaughter Act, passed into law after objective research by the United States government, declares shechita to be humane. For Torah observant Jews, it cannot be any other way.”

Shechita itself, the act of animal killing, is designed to minimise animal pain. The animal must be killed by a single cut with an instrument of surgical sharpness, and in the absence of anything that might impede its smooth and swift motion. The cut achieves three things: it stuns, kills and exsanguinates in a single act. We believe that this is the most humane, or a most humane method of animal slaughter.
— Rabbi Jonathan Sacks addressing a debate on shechita in Britain's House of Lords, January 16, 2014.

But as we make our way through the tractate Chullin, there is no mention of the pain of the procedure. And with very few exceptions that we will come to, it was not until modern times that anyone made the claim that we slaughter animals using shechita because it is as close to being painless as possible. We do it because that’s been a part of Jewish tradition.

Shechita and the EEG

In 1994, Temple Grandin, the great champion of humane slaughter observed that cattle did not yank away their necks during shechita. “All of them stood still during the cut and did not appear to feel it” she wrote, though she also noted that “whether or not ritual slaughter conforms to the requirements of euthanasia is a controversial question.” Since then others have looked into the question of brain activity as a marker of pain during shechita.

In 2009 a group of veterinarians in New Zealand hooked up fourteen Angus steers to an EEG, which measures the electrical activity in the brain. They were lightly anesthetized (the cows, not the veterinarians) and then slaughtered with an incision across the neck, “severing all tissues ventral to the vertebral column including the major blood vessels supplying and draining the head.” During the 30 seconds following this incision, the EEG showed significant changes leaving the scientists to conclude that “…there is a period following slaughter where ventral­ neck incision represents a noxious stimulus.” In a slightly different study on calves, the group concluded that the EEG responses were primarily due to noxious stimulation and not mainly as a result of loss of blood flow through the brain.

Ari Zivotofsky (he of the exotic kosher banquet) claimed that these experiments had “…zero relevance to shechita because the conditions used did not mimic shechita in terms of the knife’s size, sharpness, and smoothness.” He continues:

It is possible that cutting a cow’s neck with a short, blunt, non-smooth knife is indeed painful, while a shechita cut may be significantly less so or even totally devoid of pain. Does the animal feel no pain? Might it even be a pleasurable feeling, e.g., are endorphins released? I don’t know. But many people who have gotten a paper cut or who have been cut by a scalpel can attest to the fact that while the cut is taking place it is essentially not sensed and it is only later that the pain kicks in. And in the case of shechita, the animal will be senseless by that point.

It would be hard to believe that the sensation of having your neck sliced open would be similar to that of getting a paper cut - and harder still to think that it might even be pleasurable. But here is a suggestion: do the experiment (though not on your friends) and let us know.

But don’t take my word for it. Temple Grandin herself wrote that “there is a need to do research with EEG measurements when the special…kosher knife is used by a trained person.”

In fact brain activity has been compared between shechita and captive bolt stunning, and the results did not bode well for shechita. Here is one study published in 1988 in the Veterinary Record:

Captive bolt stunning followed by sticking one minute later resulted in immediate and irreversible loss of evoked responses after the stun. Spontaneous cortical activity was lost before sticking in three animals, and in an average of 10 seconds after sticking in the remaining five animals. The duration of brain function after shechita was very variable, and particularly contrasted with captive bolt stunning with respect to the effects on evoked responses. These were lost between 20 and 126 seconds (means of 77 seconds for somatosensory and 55 seconds for visual evoked responses) and spontaneous activity was lost between 19 and 113 seconds (mean 75 seconds) after slaughter.

The authors did add a note of caution: “…evoked responses do not rep­resent a conscious awareness of the stimulus but are produced by neural activity at a rudimentary level which precedes con­scious awareness.” But even so, these findings must raise the concern that the animals had a degree of brain activity for far longer after shechita compared to captive bolt use. And back to Grandin again: “Penetrating captive bolt, when it is applied correctly, will induce instant insensibility and unconsciousness, because visually evoked potentials are eliminated from the brain.” So there it is again: instant versus not-so-instant.

Shechita and the time to loss of CONSCIOUSNESS

Frequency distribution of the cattle according to time to collapse following halal slaughter without stunning. From Gregory N.G.et al. Time to collapse following slaughter without stunning in cattle.   Meat Science   2010: 85; 66–69.

Frequency distribution of the cattle according to time to collapse following halal slaughter without stunning. From Gregory N.G.et al. Time to collapse following slaughter without stunning in cattle. Meat Science 2010: 85; 66–69.

While it is often claimed by those who support shechita that it causes an immediate loss of consciousness (see above, Henry Grunwald the OBE QC), this is not to be the case. Grandin, who collected data from five kosher plants in different countries noted a huge variation: from as little as eight seconds to as long as a full two minutes. (Average times were somewhere between 15 and 35 seconds.) As we have seen, when properly applied, a captive bolt captive bolt provides an instant loss of consciousness.

One 2009 study studied the time to collapse following slaughter without stunning in cattle following halal slaughter (which is not the same as shechita, but it’s not much different either). It reported that 14% of the cattle collapsed and subsequently raised themselves to stand on all four feet before collapsing again. There was a twenty second interval, on average, between the first and final collapses. “This brief recovery in behaviour,” the authors point out,” has not been noted before because cattle are usually restrained during the main part of the bleeding period following slaughter without stunning.”

You are not helping

One thing that certainly does not help the case for shechita are wild claims like the one below. It comes from a book called TNT Torah Novel Thoughts, authored by “Anonymous(and brought to my attention by an astute Talmudology reader). The claim is so bizarre that it is reproduced here in the original:

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If the claim that “kosher animals were created with nerves ending at their shoulders, thus circumventing any feeling of pain” sounds ridiculous, that’s because it is. Does Anonymous believe that there are no cutaneous nociceptive nerve endings in cattle above the neck? If so, has he (or she) ever patted the neck of a cow or a horse? The cranial nerves in cattle, “have in general the same superficial origin as in the horse” wrote Septimus Sisson in his classic Textbook of Veterinary Anatomy (p. 717). There are some minor differences of course; the oculomotor nerve is slightly larger in the horse, and the superior buccal nerve crosses the masseter much lower in cattle than in the horse. But none of these comes anywhere near to the claim made by Anonymous. You could check this by reading Veterinary Neuroanatomy and Clinical Neurology (4th Edition). Then, if you have time, you could review Comparative Anatomy of the Horse, Ox, and Dog: The Vertebral Column and Peripheral Nerves, or its companion Comparative Anatomy of the Horse, Ox, and Dog:The Brain and Associated Vessels. You will find that it is the similarities between the species that is remarkable.

Schematic illustration of the autonomous and cutaneous distribution of nerves pertaining to the head of the (A) dog, (B) horse, and (C) ox .   O  = ophthalmic nerve;  Mx  = maxillary nerve ( *  = also within the maxillary distribution of the horse);  Mn  = mandibular nerve. From Levine J, et al.     Comparative Anatomy of the Horse, Ox, and Dog:The Brain and Associated Vessels   .

Schematic illustration of the autonomous and cutaneous distribution of nerves pertaining to the head of the (A) dog, (B) horse, and (C) ox. O = ophthalmic nerve; Mx = maxillary nerve (* = also within the maxillary distribution of the horse); Mn = mandibular nerve. From Levine J, et al. Comparative Anatomy of the Horse, Ox, and Dog:The Brain and Associated Vessels.

And what about the claim that there is a “physiological difference between the blood flow of non-kosher animals and kosher ones” (and that this information “could only be Divine")? Well, this too is wildly inaccurate. Of course there are some differences between species. For example, in horses, the Circle of Willis at the base of the brain is supplied by the internal carotid and basilar arteries. In cattle, the blood supply to the circle is via the internal carotid, maxillary, occipital, and vertebral arteries. And so, in cattle “the cerebrum receives a mixture of blood from all sources.” But there is no important physiologic difference in the blood flow of a horse and a cow.

The Talmud itself notes this. In the next tractate, Bechorot (10b) we read of a donkey that was killed because its owner wished to practice the technique of shechita on it (ששחטו להתלמד בו). Clearly then, the equine and bovine species are as good as identical in terms of their anatomy as it relates to ritual slaughter.


Commonly heard refrains about Shechita, and what to do about them

  1. Those who oppose shechita are anti-Semitic

Do not respond to criticism of shechita with an ad hominem attack that the critic is an anti-semite. Stop worrying about the motives of those who question whether shechita is more or less humane than other methods of slaughter (like this Star-K website did).  Yes, some people who do so are decidedly anti-semitic, but many who defend shechita are pro-semitic, and they are not disqualified from the debate.  Discuss the science, not the motives of people. Fight any anti-Semitism rigorously, but separately.

2. There is scientific data showing that shechita is humane

This is true, but much of this data is unreliable or was produced using equipment that we have now improved. For example, In 2004 an S.D. Rosen published Physiological insights into Shechita in The Veterinary Record. Among other things, Rosen cited a 1976 book published by Feldheim together with the “Gur Aryeh Institute for Advanced Jewish Scholarship” titled Shechita, Religious, Historical and Scientific Scholarship. And in this book (stay with me) the cited scientific literature included (and contained graphs from) a 1963 paper (Levinger, Shechita and animal psychology), and a 1929 paper (Stahlstedt, Some attempts to obtain, by means of physiological experiments, an objective basis for an opinion as to cruelty alleged to be attendant on the Jewish ritual method of slaughtering cattle). That’s not nearly good enough. (I tried, but could not obtain a copy of this book published nineteen years ago, which perhaps contains the kind of modern data that is needed. Does anyone have a copy?)

3. “Of course” shechita is humane

Don’t claim that shechita “has been established over centuries to be the most humane form of animal slaughter” without the scientific data to support this claim. (For another example see the Rabbinical Assembly here.) There has been very little published research on the methods of shechita. (There appears to be more research about halal). If shechita is as humane as say, the captive bolt, (as measured by EEG tracings or evoked potentials,) then a head to head (sorry) study should be performed to compare the two.   This would be a very good use of the resources available to the major kashrut organizations in the US, the UK, Israel, and beyond.

Much discussion on ritual slaughter discusses humaneness, with accusations that Shechita is inhumane. Such language, with respect, is unconstructive. True humane slaughter requires the complete elimination of pain and distress, which is unachievable. Defining humaneness in terms of risk management is more realistic: recognising slaughter’s inherent unpleasantness, and the universal need for strategies to minimise suffering… Unless the state outlaws all slaughter, its object is avoidance, not elimination, of pain and suffering.
— Understanding freedom of religion in a religious industry: kosher slaughter (shechita) and animal welfare. Joel Silver. Victoria University of Wellington Law Review 2011; 42; 671-704.

3. Shechita cannot be banned because it would violate our rights to religious freedom

The argument that shechita cannot be questioned or banned because it impinges on our religious freedom is not a strong one. In the modern and (somewhat) enlightened societies in which most of us live, we place limits on the freedoms to practice religion. In the US and many others countries, for example, the wishes of a Jehovah’s Witness parent who refuses permission for a life-saving blood-transfusion for their child have been consistently overruled. The rights to perform female circumcision are also curtailed – even if they are claimed to be part of a religious system. If a religion practices that which is considered immoral or unethical, then these practices should be regulated or abolished. True, this may place some religious practices like shechita or circumcision in a precarious position, but that this the price that, on average, may be worth paying. Think about this.

4. The whole purpose of shechita is a quick and painless death

This suggestion is not found anywhere in the Talmud. The word for suffering - צער - appears only a single time in the entire tractate of Chullin. (It is in the context of a suggestion to cut the hooves of a donkey to prevent them from kicking someone. So actually there is no mention of suffering in connection with the rules of shechita.) The word for kindness - חסד - does not appear at all. And neither of these words appears anywhere in the laws of shechita found in the Shulchan Aruch - The Code of Jewish Law.

But there is a far more problematic example that challenges any claim that animals must be shechted because this - and only this - can reduce suffering. It concerns the Ben Pakua, (lit, “the offspring that has broken through”) which is a viable calf found in utero after the shechita of its mother. Such an animal may be slaughtered and eaten without shechita. Let me repeat that. A viable calf found in utero may be eaten without shechita. In fact according Rabbi Shimon ben Shezuri, even if that calf grew up to be five years old, “its mother’s shechita purifies it” and it may therefore be killed and eaten without shechita.

Practically speaking though, it is not allowed to eat a Ben pakua without shechita. If you thought that the reason is that because shechita is so humane, and so it is the only way a Jew may eat meat, you are wrong. The Talmud and later sources have no such concerns. The reason it must be slaughtered with shechita is to prevent confusion. The farmer might mix up (דלמא אתי' לאחלופי בשאר בהמות) the Ben pakua with a non Ben pakua animal; the latter would then killed without shechita when in fact shechita was needed. That’s the reason we require a Ben pakua to be eaten only after shechita. But to our point, there is absolutely no mention of the need for shechita out of any concern for the pain or suffering of the animal. None.

But this does not imply that animal suffering was ignored. Among the earliest suggestions that shechita was practiced to minimize pain can be found in the Sefer Hachinuch (The Book of Education). It was written anonymously sometime in the thirteenth century but not published until 1523, and was attributed to R. Aharon Halevi of Barcelona.

שהרחיקה ממנו התורה דם כל בשר מה שידעתי. ואומר גם כן על צד הפשט כי מצות השחיטה היא מאותו הטעם, לפי שידוע כי מן הצואר יצא דם הגוף יותר מבשאר מקומות הגוף, ולכן נצטוינו לשחטו משם טרם שנאכלהו, כי משם יצא כל דמו ולא נאכל הנפש עם הבשר

ועוד נאמר בטעם השחיטה מן הצואר ובסכין בדוק, כדי שלא נצער בעלי החיים יותר מדאי, כי התורה התירן לאדם למעלתו ליזון מהם ולכל צרכיו, לא לצערן חינם, וכבר דברו חכמים הרבה באיסור צער בעלי חיים ... אם הוא אסור דאוריתא, והעלו לפי הדומה שאסור מדאוריתא.

The Torah forbids any blood from being eaten, and the command to perform shechita is based on the very same reasoning. We know that blood can leave the body through [an incision in] the neck quicker than it can from any other place. We were therefore commanded to shecht an animal’s neck before eating it, because it is from there that all of its blood will leave, and so we will not eat its soul [a reference to blood] with the meat...
Another reason that we must perform shechita at the neck with an approved knife is so not to be too cruel to the animals. For the Torah gave us permission to gain nourishment from them but this does not allow us to cause pain to them for no reason...And the rabbis have stated that the prohibition against animal cruelty comes from the Torah itself.
— Sefer HaChinuch Commandment 451. ספר החינוך מצוה תנא

By any measure, this sentiment was far, far ahead of its time; recall what Descartes was thinking and Harvey was doing in the sixteenth century. But you will find that simply declaring that the reason for shechita is that it is “the most humane method of slaughter” is not really supported in classical Jewish texts until much later (if at all).

As but one example, consider the important commentary on the Shulchan Aruch called Pri Megadim by Joseph ben Meir Teonim (1727-1792). According to the Bar Ilan Project, the work has become “one of the primary explanations to this code of Jewish Law. There are super-commentaries on it, as well as abbreviated versions…Nowadays, the Pri Megadim is published at the end of each volume of the Shulkhan Aruch in almost every edition, and in some modern editions can be found on the very folio of the code.” And what does the Pri Megadim have to say about suggesting that the entire reason for shechita is to reduce cruelty? He says this, right in his introduction to the Laws of Shechita:

A reason given for this mitzvah [of shechita]…is because of the [prohibition against consuming] blood…and in addition because of the laws preventing cruelty to animals… and the reason that it is forbidden to use a damaged knife blade because of the issue of cruelty to animals.

However, everyone else has already written that one should not give reasons for any of the mitzvot. And even though in a few books the reasons are suggested, they should be paid no attention, as I will explain later…

טעם מצוה זו הביא האליהו רבא בשם ספר החינוך דרוב דם יוצא מצוואר כדי שיצא הדם ועוד משום צער בעלי חיים ומוכיח מכאן דצער בעלי חיים דאורייתא עיין בספר החינוך סימן ת”מ וכן בסכין פגום אסור משום צער בעלי חיים יעויין שם
אמנם כבר כתבו כולם שאין ליתן טעם על שום מצוה וכן חמש הלכות שחיטה אף שבקצת ספרים נמצאין טעמים עליהן אין להשגיח עליהם ובמקומו אבאר כ”א בעזה”י
— פרי מגדים יורה דעה פתיחות פתיחה להלכות שחיטה

There are of course hundreds of other references to shechita and cruelty in the works of those who rule on Jewish law from the sixteenth century to contemporary times. (I’ve found at least 300 of them, but have not yet had the time to review them. It would be a great topic for a PhD.) But these are all ex post facto. And if that doesn’t convince you, you might want to read our three-part series on the folly of trying to reconcile Jewish Law with contemporary science.

5. Captive bolt use is worse than shechita because it goes wrong so often

Don’t compare the best of shechita (quick and painless) with the worst of captive bolt use (incompetent and unreliable). In her Recommended Captive Bolt Stunning Techniques for Cattle Temple Grandin suggested as an industry standard that 95% or more of the animals are rendered insensible with one shot whether penetrating or not. Under US Department of Agriculture (USDA) regulations (9 CFR Ch. III, 313.15) “captive bolts shall be of such size and design that, when properly positioned and activated, immediate unconsciousness is produced.” When Gradin studied the efficacy of penetrating captive bolt stunning of cattle, she found that among steers and heifers, 0.16% had signs of returning to sensibility, and 1.2% of bulls and cows did. “Return-to-sensibility problems” she wrote, “were attributed to storage of stunner cartridges in damp locations, poor maintenance of firing pins, inexperience of the stunner operator, misfiring of the stunner because of a dirty trigger, and stunning of cattle with thick, heavy skulls.” In a study of addressing the complications during shechita and halal slaughter without stunning in cattle, the authors estimated that 10% or more cattle develop complications during the bleeding period during normal halal and shechita slaughter. If this figure is accurate, the shechita organizations must address and improve their regulations. And if it is not, these same bodies should publish the evidence that shechita has fewer complications than captive bolt use.

6. If shechita is banned I would never be able to eat meat

That’s true. But so what? Slavery (or some form of it) is regulated in the Torah, and its rules and regulations are discussed in the Talmud. But we don’t own slaves, and find the thought morally repugnant. There are no Jews complaining that the thirteenth amendment to the US Constitution banning slavery was unfair, because hey, the Talmud says we can have slaves.  Some things must be given up when the failure to do so is morally untenable.

7. Even if procedures like stunning or the captive bolt are shown to be more humane, we could never adopt them because of the laws of shechita.

Well, not so fast. Of course there are segments of the orthodox Jewish population that would never adopt these practices, because, well, the science is wrong and suspect and anyway of course shechita is humane see above). But there are large segments of the orthodox Jewish world who agree that Judaism has nothing to fear from evolving and adapting to new situations.

For centuries the traditional way of slaughtering cattle was known as casting, in which the animal was inverted onto their back before the shechita. (That’s why the drawing of the cow at the top of this piece is lying on its back.) But it is without doubt cruel and stressful to the animal. At least that’s what Temple Grandin thinks. “Cattle resist inversion she wrote, “and twist their necks in an attempt to right their heads.”

Around 1927 the Weinberg Casting Pen was developed (“by Mr. J.W. Weinberg an orthodox Jew and and a tailor by trade”). It was a padded stall that rotated mechanically and so did away with traditional methods of casting. The device was reviewed in Britain by the Veterinary Journal of that year. It noted that “the Shechita Board claim that their form of killing is humane, but the casting, i.e., getting the animal into the correct position for its throat to be cut, is not free from criticism.” And then this:

…the outstanding merit of the pen is that vigorous and restless animals which under existing methods might have to undergo long minutes of suffering and terror, often attended by severe injuries, are by its use cast and brought into the required position for the cut with the same rapidity and freedom from pain as the quiet ones. Even the greatest of the cruelties any of the present methods of casting would thus be brought to an end by the adoption of the mechanically working pen.

From Temple Grandin and Joe Regenstein,  here .

From Temple Grandin and Joe Regenstein, here.

And so it was. The Weinberg pen became widely used and with it a traditional and cruel practice was ended. (Admittedly casting was not a requirement for shechita itself, but a way to prepare for it). But things did not stop there. The Weinberg pen still involved turning large cattle upside down, which remained far from desirable. A new pen, approved by the American Society for the Protection of Cruelty to Animals allowed shechita to be performed with the animal standing in its normal position. “Very little pressure was applied to the animals by the rear pusher gate in the ASPCA pen” we learn from experts in animal welfare. “Head holders were equipped with pressure limiting devices. The animals were handled gently and calmly. It is impossible to observe reactions to the incision in an agitated or excited animal. Blood on the equipment did not appear to upset the cattle. They voluntarily entered the box when the rear gate was opened. Some cattle licked the blood.”

When the device was rolled out in 1964, The New York Times reported that “Rabbi Israel Kiavan, executive-Vice president of the Rabbinical Council of America, a prominent Orthodox group, hailed the Society's announcement as dramatic break through preparing animals for slaughter." But although this addressed the preparation of the animal and not the shechita itself, this new position could impede the action of the shochet who now had to cut against gravity. So it was in fact a practice that might impair kosher slaughter. In an undated responsa Rabbi Moshe Feinstein ruled that shechita of a large animal was permitted (אבל כשיקשרו ראש הבהמה למעלה סובר אני שיש להתיר אף לכתחלה ) when the animal was in an upright position. Again, this innovation addressed the pre-shechita set up, but it shows how traditional shechita methods were greatly improved upon, with a little help from some clever engineers, and then approved by rabbinic authorities.

Another example of the way shechita laws may be open to improvements, while receiving the imprimatur of even Orthodox Judaism is that of using inhaled anesthetics prior to shechita. Again, it was Rabbi Moshe Feinstein who was asked whether this procedure was permitted. Yes, he opined, although he thought it was a measure imposed “by those who hate Israel.”

אם יש מקום להתיר להוליך הבהמות לתוך תא שבתוכו געז /גז/ כ"ב אדר תש"כ. מע"כ ידידי הרב הגאון המפורסם כש"ת מוהר"ר יוסף מרדכי בוימעל שליט"א

הנה בדבר שרוצים מהמדינה להנהיג להוליך הבהמות לתוך תא שבתוכו מזרימים געז ומשהין אותן שם זמן קצר עד שמשפיע על מרכז העצבים ומתבטלים מזה חושיה והרגשותיה למשך זמן קצר וכשיעבור הזמן הדרא לבריאותה לכל חושיה והרגשותיה כמתחלה דהוא כמתעוררת מן השינה, אם הוא אמת ברור שלא נתקלקל בזה כלום מדברים המטריפים איני רואה בזה שום איסור שודאי אם ירדימו אותה כמו שמרדימים חולים קודם שעושין הרופאים להם אפעריישאן שאין מרגישים כלום בחתיכת בשרם לא היה שום חשש בהשחיטה וכדכתב כן גם כתר"ה דלא נמצא שהבהמה צריכה להיות ערה בשעת השחיטה

ואין לומר דיש אולי לחוש שמא לא אמדו יפה והיה שם געז במדה שתמות אבל שמ"מ תחיה זמן קצר שהיא מסוכנת, דודאי לענין המדת חסידות שאין בזה איסור יש לסמוך על האומדנא דהבקיאין ועל מה שחוששין להפסדם דהיתה מדה מועטת שאם יעבור זמן קצר תחזור לאיתנה כמקדם. ולכן כשיהיה פירכוס אחר שחיטה מותרת אף להמדת חסידות

אבל מ"מ צריך להשתדל בכל האפשר לבטל גזירה זו ששונאי ישראל רוצים להנהיג והשי"ת יעזרנו. ידידו מוקירו, משה פיינשטיין

Looking back, looking forward

After the 1933 Nazi ban on shechita without pre-stunning, the great posek R. Yechiel Yaakov Weinberg made a huge effort to convince his rabbinical colleagues that it could be permitted. As carefully documented in Marc Shapiro’s book, “almost every rabbi who responded to Weinberg opposed any change in the traditional method of shechita, under all circumstances…the pressure against change was so great that those who initially agreed with Weinberg later retracted their opinions when confronted with the weight of opposing rabbinic authority.”

Changes around the edges of the methods of shechita have certainly been accepted by the Orthodox community, but they need to do more. Produce the evidence that traditional shechita is not less humane than other forms of slaughter, or be prepared for further demands from those not only concerned with the right to religious freedom, but with animal welfare too.

From   Legal Restrictions on Religious Slaughter in Europe   ,  Law Library of Congress March 2018.

From Legal Restrictions on Religious Slaughter in Europe, Law Library of Congress March 2018.

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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]

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Bava Kamma 90a ~ The Prosecution & Punishment of Animals

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 animlas

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 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.  

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Bava Kamma 35a ~ Analgesia for Animals

בבא קמא לה, א

ההוא תורא דהוה בי רב פפא דהוה כיבין ליה חינכיה עייל ופתקיה לנזייתא ושתי שיכרא ואיתסי

There was an ox in the house of Rav Pappa that had a toothache. It went inside, pushed the cover off a beer barrel, drank the beer, and was healed.

Descartes on Animal Pain

The silly notion that animals do not feel pain is widely thought to have originated with the French philosopher Rene Descartes (1596-1650). "They eat without pleasure, cry without pain, grow without knowing it; they desire nothing, fear nothing, know nothing". While these words were those a student of Descartes, the contemporary philosopher Peter Harrison notes that they are generally thought to capture the essence of Descartes' view of animals. "The father of modern philosophy" continues Harrison, "is credited with the opinion that animals are non-sentient automata, an opinion for which over the centuries he has been ridiculed and vilified."

To be able to believe that a dog with a broken paw is not really in pain when it whimpers is a quite extraordinary achievement, even for a philosopher.
— John Cottingham. "A Brute to the Brutes?' Descartes's Treatment of Animals. Philosophy 1978; 53; 551-559.

Scientists Ignoring Animal Pain

Vivisection of a dog. From J. Walaeus.  Epistola Prima de Motu Chyli et Sanguinis  (1647) .

Vivisection of a dog. From J. Walaeus. Epistola Prima de Motu Chyli et Sanguinis (1647).

The debate as to Descartes' true view is fascinating, but need not detain us. What is certain is that the pain that animals undoubtedly feel was either denied as existing, or overlooked for centuries by scientists.  Animals were used for experiments of the most horrendous kind in the names of science, even when the pain was evident to those who were causing it. Here, for example, is the French physiologist Claude Bernard (d. 1878), who felt that without vivisection, 'neither physiology not scientific medicine is possible': 

A physiologist is not a man of fashion, he is a man of science, absorbed by the scientific idea where he pursues: he no-longer hears the cry of animals, he no-longer sees the blood that flows, he sees only his idea...no anatomist feels himself in a horrible slaughter house; under the influence of a scientific idea, he delightfully follows a nervous filament through stinking livid flesh, which to any other man would be an object of disgust and slaughter.
It is sometimes said that people in the seventeenth century had no motion of cruelty to animals and Descartes even argued that animals are mere machines, incapable of feeling pain. It is also said there was so much cruel treatment of one human being by another in the seventeenth century that what was done by the vivisectionists to animals would scarcely have seemed horrendous.
— David Wootton. Bad Medicine. Oxford University Press 2006. 108-109.

Do Fish Feel Pain? - Yes!

The tropical Zebrafish grow to about 2.5 inches in length.  And they don't like pain.

The tropical Zebrafish grow to about 2.5 inches in length.  And they don't like pain.

Rav Pappa's ox sought out pain relief from beer, but recent evidence has shown that it's not just oxen who like to have their pain relieved.  So do fish.  In a paper in the The Journal of Consciousness Studies, Lynn Sneddon demonstrated that not only can fish feel pain, but that they are willing to pay a cost to get pain relief. Zebrafish, like humans, prefer an interesting environment to a boring one. When given a choice, these fish swim in an enriched tank with vegetation and objects to explore, rather than in one that is bare. With me so far? OK. Next, Sneddon, from the University of Liverpool in the UK, injected the tails of the zebrafish with acetic acid, which no doubt annoyed them, but did not cause any change in their preference for the interesting tank over the one that was bare.  Finally, she injected the fish with acetic acid, but added a painkiller into the water of the bare tank. This time, the fish chose to swim into the bare but drug filled tank. Fish who were injected with saline as a control remained in the enriched tank and did not swim into the drug enhanced bare tank.  The conclusion: zebrafish are willing to pay a cost in return for getting relief from their pain. Similar observations have been made in rodents too; when in pain, they will self administer analgesics, preferring to drink analgesic dosed water or eat dosed food when presented with a choice. 

Defining Animal Pain

In the scientific world there was  - and perhaps still is -  a debate about the nature of pain that animals may feel.  Sneddon, the fish physiologist, wrote that if we are to conclude that animals experience pain in a way similar to humans, then (1) "animals should have the apparatus to detect and process pain; (2) pain should result in adverse changes in behavior and physiology; and (3) analgesics (painkillers) should reduce these responses..." Thanks to advances in microscopy and physiology, today we know that animals have many of the anatomical features (like nerves that transmit the pain stimulus) needed to process pain.  

The Ox of the House of Rav Pappa

Rav Pappa's ox demonstrated the second and third of Sneddon's features: pain changed the behavior of the ox (off it trotted to find pain relief ), and analgesia, (in this case beer) indeed reduced the pain response.  Of course we are left wondering how it was known that the ox of the house of Rav Pappa specifically had a toothache, (and not say sinusitis or a bad migraine), but based on what we know about the ways in which fish and rodents will seek out an environment in which painkillers are available, the story is no where near as fanciful as we might suspect.  

קיצור שולחן ערוך - קצא

אָסוּר מִן הַתּוֹרָה לְצַעֵר כָּל בַּעַל חָי. וְאַדְּרַבָּא, חַיָב לְהַצִּיל כָּל בַּעַל-חַי מִצַּעַר 

It is forbidden to cause pain to any living creature. In fact a person is required to save any living creature from pain...(Abbreviated Code of Jewish Law by Shlomo Ganzfreid, 1864).

 

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