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 harm doing, 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 desserts 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.  

Bava Kamma 85a ~ Is Honey Bad For You?

בבא קמא פה,א 

כדתניא הרי שעבר על דברי רופא ואכל דבש או כל מיני מתיקה מפני שדבש וכל מיני מתיקה קשין למכה והעלה מכתו גרגותני יכול יהא חייב לרפאותו ת"ל רק

It was taught in a Braisa: If the victim of an assault disobeyed the advice of his doctor and ate honey or all types of sweets - and this violated his doctor's instructions because honey and all types of sweets are harmful for a wound - it could be thought that the assailant is still obligated to heal the victim. Therefore the Torah uses the word רק (only) to teach otherwise...(Bava Kamma 85a)

Secretions of the honey bee. From Israili, Z. Antimicrobial Properties of Honey. American Journal of Therapeutics 2014. 21; 304–323.

Three days ago we studied the medical effects of garlic, and noted that although the Talmud praises it for its health effects, there is conflicting evidence as to its efficacy. Today, we turn to honey, which has been used as a medicine for at least the last 3,000 years.  It is therefore very surprising that in the culture that gave birth to the Talmud, honey was thought to be bad for your health.  As we will see, honey has some quite amazing therapeutic uses.

FROM WHERE DOES HONEY COME?

The honeybee is the only insect that produces food eaten by humans. Here is what happens: The female honeybees use their proboscis (a tube-like tongue) to up suck flower nectar and mix it with their saliva and enzymes. Then they store it in a honey sack. Back at the hive, the mixture is regurgitated into cells, dried to about 16% moisture, and stored as a primary food source. As you might expect, the content of the honey depends on a number of factors including the species of bee, the kind of flowers on which they fed, and the conditions in which the honey was stored.

Honey as an Antibiotic

In a recent review article that focuses on the antimicrobial properties of honey, Zafar Israili from the Emory School of Medicine noted that a large number of laboratory and clinical studies have confirmed the broad-spectrum antimicrobial properties of honey.  These include antibacterial, antifungal, antiviral, and antimycobacterial.  “Honey,” wrote Israili, “was found to be an effective topical treatment for ringworms, athlete’s foot, jock itch, nail fungus, and yeast infections and reported to be comparable to many over-the-counter antifungal preparations.” These properties are likely due to the honey’s acidity, osmotic effect, high sugar concentration, and the presence of chemicals like hydrogen peroxide, antioxidants, and lysozymes.  

Honey contains more than 600 compounds (you can see a list of them here), and the wound healing properties of honey are probably its oldest and best studied medicinal property.  It has been shown to aid wound healing in conditions such as chronic pressure sores, traumatic and diabetic wounds, diabetic foot ulcers, boils, burns, fistulas, necrotizing fasciitis, and a very nasty condition called Fournier’s gangrene. (That's necrosis of the scrotum. Yes, quite gross.) So in contrast to the advice of the talmudic doctors that "honey is bad for an injury", honey turns out to be rather good for wounds, especially when applied directly to them.  But honey isn't just good for wounds...

“There is a large body of evidence to support the use of honey as a wound dressing for a wide range of types of wounds. Its antibacterial activity rapidly clears infection and protects wounds from becoming infected, and thus it provides a moist healing environment without the risk of bacterial growth occurring. It also rapidly debrides wounds and removes malodor.”

— Molan, PC. The Evidence supporting the use of honey as a wound dressing. Lower Extremity Wounds 2006. 5 (1); 52.

Your Mother was correct

A 2012 study from physicians at the Sackler School of Medicine in Tel Aviv tested the effects of honey on nocturnal cough and sleep quality.  They enrolled 150 children age 1-5 years (and presumably, their tired and exasperated parents) and half an hour before bedtime, gave half of them “a single dose of 10g of eucalyptus honey, citrus honey, or labiatae honey,” and the other half a placebo. (In case you were wondering, as was I, as to what the placebo was, here’s the answer: date extract, “because its structure, brown color, and taste are similar to that of honey.” True enough.) What they found might change the way you treat your own cough this winter. Each of the three honey groups had a better response compared with the date extract, and no significant differences were found among the different types of honey. The authors concluded that honey may be preferable to cough and cold medications for childhood respiratory infections. 

The effect of different types of honey and date extract on cough frequency (I), cough severity (II), cough bothersome to child (III), the child’s sleep (IV), parent’s sleep (V), and combined symptoms score (VI). P <0.05 for the comparisons between group D and the other groups. A, eucalyptus honey; B, citrus honey; C, labiatae honey; D, silan date extract. From Cohen, AH. et al. Effect of Honey on Nocturnal Cough and Sleep Quality: A Double-blind, Randomized, Placebo-Controlled Study. Pediatrics 2012. 130 (3); 465-471.

Honey as a Medicine for Pretty much everything

There are dozens of other medical conditions for which honey may be used. Here is what the review from Israili has to say:

Honey has been reported to be of benefit in a large number of human pathologies including allergy, asthma, bronchitis, common cold, flu, hay fever, nasal congestion, rhinitis, sinusitis, upper respiratory infections, sore throat, cough, fatigue, anxiety, migraine (stress related), cuts, lacerations, burns, wounds (venous, arterial, diabetic, malignant), pressure ulcers, malignant ulcers, perianal and gluteofemoral fistulas, bed sores, adult and neonatal postoperative infections, necrotizing fasciitis, pilonidal sinus, insect bites, infections (bacterial including antibiotic-resistant strains and fungal), septicemia, conjunctivitis and other eye diseases, endophthalmitis, acne, chronic seborrheic dermatitis, dandruff, eczema, psoriasis, inflammation, gingivitis, stomach ache, stomach ulcers, digestive disorders, constipation, vomiting, diarrhea, colitis, dehydration, diabetes, osteoporosis, insomnia, chronic fatigue syndrome, anemia, hypertension, immune disorders, multiple sclerosis, cardiovascular disease, hepatitis, tumors, cancer, and radiation/chemotherapy-induced oral mucositis.

You'd have to check the references and decide if the evidence supports claims like this. But in any event, this list is in startling contrast to the advice of physicians living during talmudic times, that those who were ill or injured should avoid honey.

The Koren Talmud on Honey - woops

In its otherwise excellent translation and commentary on the Talmud, the Koren Talmud has this to say in a footnote on today's daf:

Ingesting large quantities of sweet foods can cause a rise in blood sugar, which in turn can delay the healing of injuries. In addition, poor circulation caused by the fatty deposits in the arteries can limit the amount of oxygen and healing nutrients that reach a wound. Nerve damage, or neuropathy, causes numbness in the feet that prevents open wounds from healing. Moreover, when blood sugar levels are high, the immune system cannot effectively do its job of clearing away dead and damaged tissue and building new skin cells.

Oy.  This is a mess.  In the first place, in persons who are not diabetic, ingesting sweet foods will only cause a mild and very temporary rise in blood sugar. Second, fatty deposits are caused by cholesterol plaque build-up, and not by carbohydrates (which are sugars). Third, neuropathy has absolutely nothing to do with preventing wound healing.  That's caused mostly by a deficient microcirculation, which is often associated with a neuropathy, (for example in diabetics) but is not caused by it.  Finally, elevated blood sugars might effect the immune system, but again, this is only an issue for those whose diabetes is poorly controlled.

The Koren edition seems to be following a long tradition of getting it wrong when it comes to honey. In today's page of Talmud, honey is recorded as being harmful to your health, and the Koren Talmud tries, but fails, to give this belief a patina of scientific credibility.  But both are wrong.  In fact, you might want to put down that garlic so praised by the Talmud, and pick up some honey. That would be very good for you.

Talmudology on the Parsah, B'shalach: Amalek Forever

After the Israelites successfully defeat an attack from the Tribe of Amalek, Moses commemorates the battle with an Altar and a promise.

17: 14-16 שמות

וַיֹּ֨אמֶר יְהֹוָ֜ה אֶל־מֹשֶׁ֗ה כְּתֹ֨ב זֹ֤את זִכָּרוֹן֙ בַּסֵּ֔פֶר וְשִׂ֖ים בְּאזְנֵ֣י יְהוֹשֻׁ֑עַ כִּֽי־מָחֹ֤ה אֶמְחֶה֙ אֶת־זֵ֣כֶר עֲמָלֵ֔ק מתַּ֖חַת הַשָּׁמָֽיִם: וַיִּ֥בֶן מֹשֶׁ֖ה מִזְבֵּ֑חַ וַיִּקְרָ֥א שְׁמ֖וֹ יְהֹוָ֥ה ׀ נִסִּֽי׃ וַיֹּ֗אמֶר כִּֽי־יָד֙ עַל־כֵּ֣ס יָ֔הּ מִלְחָמָ֥ה לַיהֹוָ֖ה בַּֽעֲמָלֵ֑ק מִדֹּ֖ר דֹּֽר׃ 

And the Lord said to Moses, Write this for a memorial in a book, and rehearse it in the ears of Yehoshua: that I will utterly blot out the remembrance of Amalek from under the heaven. And Moses built an altar, and called the name of it Adonay Nissi [the Lord is my Banner] for he said, Because the Lord has sworn by his throne that the Lord will have war with Amalek from generation to generation.

The Two Accounts of the Battle with Amalek

It is important to note that in the Torah there are in fact two accounts of the Battle with Amalek. In this week’s Torah reading the battle with Amalek is described in rather bland terms: “וַיָּבֹ֖א עֲמָלֵ֑ק וַיִּלָּ֥חֶם עִם־יִשְׂרָאֵ֖ל בִּרְפִידִֽם” - “Then Amalek came and fought Israel at Refidim.” But later in the Torah the ugly tactics that Amalek used are described in more detail:

דברים 25: 17-18

זָכ֕וֹר אֵ֛ת אֲשֶׁר־עָשָׂ֥ה לְךָ֖ עֲמָלֵ֑ק בַּדֶּ֖רֶךְ בְּצֵאתְכֶ֥ם מִמִּצְרָֽיִם׃

אֲשֶׁ֨ר קָֽרְךָ֜ בַּדֶּ֗רֶךְ וַיְזַנֵּ֤ב בְּךָ֙ כל־הַנֶּחֱשָׁלִ֣ים אַֽחֲרֶ֔יךָ וְאַתָּ֖ה עָיֵ֣ף וְיָגֵ֑עַ וְלֹ֥א יָרֵ֖א אֱלֹהִֽים

Remember what Amalek did to thee by the way, when you were come out of Egypt: how they met you by the way, and smote the weakest, all that were feeble in thy rear, when thou wast faint and weary; and he feared not God

It is this later account, the one in which Amalek attacked not Israel’s army but its weakest citizens which became seared into the Jewish imagination as an example of cowardice and evil. This behavior is met with a response: to utterly destroy Amalaek.

דברים 25:19

וְהָיָ֡ה בְּהָנִ֣יחַ יְהֹוָ֣ה אֱלֹהֶ֣יךָ ׀ לְ֠ךָ֠ מִכל־אֹ֨יְבֶ֜יךָ מִסָּבִ֗יב בָּאָ֙רֶץ֙ אֲשֶׁ֣ר יְהֹוָה־אֱ֠לֹהֶ֠יךָ נֹתֵ֨ן לְךָ֤ נַחֲלָה֙ לְרִשְׁתָּ֔הּ תִּמְחֶה֙ אֶת־זֵ֣כֶר עֲמָלֵ֔ק מִתַּ֖חַת הַשָּׁמָ֑יִם לֹ֖א תִּשְׁכָּֽח׃ 

Therefore it shall be, when the Lord your God has given you rest from all thy enemies round about, in the land which the Lord your God gives you for an inheritance to possess it, that you shall blot out the remembrance of Amalek from under heaven; you shall not forget.

And so the account in this week’s parsha of the military victory over Amalek was turned into a humiliating defeat when described in Devarim. And ever since, Amalak became the embodiment of an altogether different type of evil, one that must be forever recalled and forever annihilated.

The Realistic and the Metaphorical Approaches

There have been two streams of interpretation about the events that occurred, what Avi Sagi described as the realistic and the symbolic. The former is perhaps best exemplified in the commentary of the Portuguese medieval exegete Isaac Abarbanel (1437–1508). Amalek had no reason to attack the Israelites, and what is perhaps worse, when they did attack they targeted the weakest civilians. It was the tactics of Amalek that led the Torah to decree their destruction.

פירוש אברבנאל על התורה, דברים 25:17

שנלחם עמהם מבלי סבה, כי הנה הלוחמי' מהם שיעשו מלחמותיהם כנגד האויבים הבאים עליהם לקחת את ארצם ולכבשם ילחמו להנצל מהם, ומהם שילכו לכבוש ארצות גוים אשר לא להם ועל זה ילחמו, אבל עמלק לא היה לו סבה מזה במלחמתו, כי הנה ישראל לא היו עוברים בארצו ובאים להלחם בו לשיצא להלחם בם, וגם לא היה להם ארצות שילך עמלק לכבשם ולחמדתו אותם ילחם בם, אבל היתה לבד מלחמתו בדרך בצאתם ממצרים, ר"ל שהוא יצא לשטן להם בדרך, עובר ומתעבר על ריב לא ל…הנה עמלק לא עשה כן אבל בא וילחם בפתע פתאום וזהו אשר קרך בדרך ר"ל במקרה פתאום בלתי שיעיר בך דבר…שהיה מפחיתות עמלק ופחדו שלא יעצור כח להלחם בישראל פנים בפנים, אבל נלחם עם החלשים שהם הבאים באחרית המחנה ויירא מגשת אל העם מלפניו וזה עם היות ישראל עיף ויגע, וזהו ויזנב בך כל הנחשלים אחריך כי נחשלים הוא כמו נחלשים ככשב כבש, וזכר עוד מפחיתותו באמרו ואתה עיף ויגע

In contrast, the metaphysical approach views Amalek as a concept, as evil embodied, rather than a historic population (although they certainly were the latter). And there is both a human and a divine battle against Amalek, as outlined in the Zohar:

זוהר 2:66א

אָמַר רִבִּי יִצְחָק, כְּתִיב כִּי מָחֹה אֶמְחֶה, וּכְתִיב (דברים כ״ה:י״ט) תִּמְחֶה אֶת זֵכֶר עֲמָלֵק. אֶלָּא, אָמַר קוּדְשָׁא בְּרִיךְ הוּא, אַתּוּן מָחוּן דּוּכְרָנֵיהּ לְתַתָּא, וַאֲנָא אֶמְחֶה דּוּכְרָנֵיהּ לְעֵילָּא

Said R. Isaac: ‘Here it is written: “For I will utterly blot out”, whereas in another passage it says, “Thou shalt blot out the remembrance of Amalek” (Deuteronomy 25:19). The Holy One, blessed be He, said in effect: “You shall blot out his remembrance on earth, and I will blot out his remembrance on high”.

Sagi explains the genesis of this metaphysical battle:

If Amalek stands for metaphysical evil and the people of Israel represent metaphysical good, any unjustified war, motivated by groundless hatred for the people of Israel, comes to symbolize the metaphysical struggle. The identity of the concrete Amalek may therefore vary and is in fact irrelevant, whereas the metaphysical war between good and evil goes on unchanged, with the people of Israel always symbolizing the good.

And then he makes this excellent point:

The punishment meted out to Amalek is thus not immoral; rather, it expresses the hope that good will prevail. The moral problem raised by the biblical story is solved by demonizing the concrete Amalek and, in the course of history, extending the concept of Amalek to include all the enemies of Israel.

Rabbi Shimshon Raphael Hirsch (d. 1888) was another advocate of the “Amalek as a metaphysical” approach:

Shimshon Raphael Hirsch. במעגלי שנה II, 191.

Amalek hates Abraham, who fight for justice against many nations and kingdoms. But Abraham does not fight for these values with the sword or the bow, but rather through peaceful means. There are only two choices here. The sword demands that all divine, humane, ethical and moral values are sacrificed, or at least ignored until victory has been proclaimed. But the voice - God’s voice calling out to human beings from beyond and within themselves, the categorical imperative of the divine moral law."

Nicolas Poussin ca. 1625. Joshua Fights Amalek. Oil on canvas. Hermitage, St. Petersburg

Amalek identified as…

Over the centuries, the metaphysical approach seems became the dominant one. This allowed for any number of real or perceived enemies of one’s own, of the Jewish People, or even part of the Jewish People themselves, to be identified as a spiritual heir of Amalek, and thus, worthy of annihilation. Here are but a few examples:

Muslims

The identification of Muslims with Amalek was not made by the Jews. It comes from the Christian Byzantine chronicler Theophanes (d. 818), who wrote in his Chronographia that “while the Church at that time was being troubled thus by emperors and impious priests, Amalek rose up in the desert, smiting us, the people of Christ.” (Theophanes also suggested that Mohammed suffered from epilepsy, but that is another story.) Later, Pope Urban II used the Amalek image when he addressed his Crusaders at Clermont in 1095: “With Moses, we shall extend unwearied hands in prayer to Heaven, while you go forth and brandish the sword, like dauntless warriors, against Amalek.”

Native Americans

The Puritan preacher (and the “chief agent of the mischief” in the Salem Witch Trials) Cotton Mather (1663-1728) thought of the native Americans, who he referred to as “Indians,” as Amalek. And just like Pope Urban II, Mather borrowed the story from this week’s parsha to rally his troops:

And for a close, Let me mind you, that while you Fight, Wee'l pray. Every good man will do it, in secret and in private every day; and publick Supplications also will be always going for you. We will keep in the Mount with our Hands lifted up, while you are in the Field with your Lives in your Hands, against the Amalek that is now annoying this Israel in the Wilderness…

The French

After the one-armed Horatio Nelson’s victory over the French Navy at the Battle of the Nile in 1798, The Bishop of London could hardly contain himself. “The Man of God, who lifted up his hands to heaven, while Israel fought with Amalek, finds an equal piety with our Admiral… It was a pious confidence in God that induced Moses to lift up his hand [sic] to heaven, while Israel fought with Amalek. It was a like faith that influenced our valiant Nelson, and other Admirals and Generals, while they courageously prevailed over our enemies.” But there was more:

But not to lose sight of the beautiful parallelism between Moses and our Admiral, I must remind you that their piety and faith in God are highly alike and conspicuous. After the Amalekites were smitten before Israel, the Lord commanded Moses “to ‘write the Victory, for a Memorial, in a Book.’ And he built an Altar and called the name of it “Jehovah Nissi” which signifies “the Lord is my Banner.” Thus Moses acknowledged the Lord of Hosts as the God of the armies of Israel….And surely there is not one here present, nor one person in this kingdom, in whose heart there is the least spark of sensibility, who could read the Admiral’s account of the victory without feeling such palpitations as never fail to excite tears of joy. These are his words: “Almighty God has given victory to the British fleet…”

“These sandy deserts, where the Israelites cried for water, and where Moses stood with his rod lifted up to Heaven, are comparatively near the spot where, as the papers stated, fifteen hundred of the French army, under General Bounaparte [sic], died of famine and thirst; where the splendid victory, for which this day we bless God, was obtained; where Admiral Nelson, like another Moses, lifted his one hand to Heaven, while his fleet nobly fought, and, as Israel prevailed.”

— Abraham Jobson. The Conduct of Moses, when Israel fought with Amalek, compared with that of Admiral Lord Nelson...Cambridge, F. Hodson 1798.

Armenians

Yes, you read that correctly. Armenians. According to the late Elliott Horowitz, (from whose book Reckless Rites many of the references for this post were taken,) the first identification of Amalek as the Hebrew word for Armenian is found in the tenth-century chronicle Yossipon. I could not find it, but I am sure it is there, somewhere.

Christians

Identifying Christians with Amalek was a terribly dangerous thing for the Jews of medieval Europe to do. So they used a kind of code word, or what today, we might call a dog whistle: Christianity=Esau=Amalek. One of the earliest to identify Amalek with Christianity was Nachmanides:

רמב’ן על התורה שמות 17:9

כי המלחמה מן המשפחה הזאת היא הראשונה והאחרונה לישראל, כי עמלק מזרע עשו (שם לו יב), וממנו באה אלינו המלחמה בראשית הגוים, ומזרעו של עשו היה לנו הגלות והחרבן האחרון, כאשר יאמרו רבותינו (ע"ז ב:) שאנחנו היום בגלות אדום, וכאשר ינוצח הוא, ויחלש הוא ועמים רבים אשר אתו, ממנה נושע לעולם, כאשר אמר (עובדיה א כא) ועלו מושיעים בהר ציון לשפוט את הר עשו והיתה לה' המלוכה

The first and final wars against Israel stem from this family, as Amalek is of the descendants of Esau. It is from him who stood at the head of the nations [in power] that the [first] war came against us. From Esau’s descendants, [namely, Rome], the [present] exile and the last destruction of the Sanctuary came upon us, just as our Rabbis have said that today we are in the exile of Edom. When he will be vanquished, together with the nations that are with him shall be weakened, we shall be redeemed forever, just as [the prophet] said, “And saviors shall come up on Mount Zion, to judge the mount of Esau; and the kingdom shall be the Eternal’s.” (Obad1:21)

Horowitz wrote that “in asserting that Edom/Esau “together with the nations that are with him shall be weakened, we shall be redeemed forever” Nahmanides presumably meant European Christendom under the spiritual rule of Rome, whose defeat, then, he saw as a prerequisite to Israel’s ultimate redemption” (Reckless Rites 127).

However, Nachmanides added an important - and novel - caveat to the fight against Amalek-Christianity. It was to be limited to the time when there was a Jewish king ruling over his people:

רמב’ן על התורה שמות 17:10

ויש מפרשים כי כאשר תהיה יד על כסא ה' תהיה מלחמה לה' בעמלק, וכן תהיה מדור לדור והענין, כי כאשר יהיה מלך בישראל יושב על כסא ה' ילחם בעמלק, והוא רמז לשאול המלך הראשון, וכן מדר דר, לאמר כי כל מלך בישראל חייב להלחם בהם עד שימח

The purport of this is that when there will be a king in Israel sitting upon the throne of the Eternal, he shall wage war against Amalek, thus alluding to Saul, the first king [of Israel]. And so shall it continue from generation to generation, that every king of Israel shall be duty-bound to fight with them until their name will extinct.

This interpretation, incidentally, is found nowhere in classic rabbinic thought, though it had been suggested by an earlier commentator, Joseph ben Isaac Bekhor Shor, who lived in the twelfth century.

Following the savage anti-Jewish riots of the twelfth century, several liturgical poems (piyyutim) called for God to avenge the blood of murdered Jews. One of these is the piyyut אמוני שלומי ישראל by Hillel ben Yaakov of Bonn. After witnessing the pogrom at Blois in 1171, he too used the code word of Esau to identify the Christians who had perpetrated the mass murders.

הַקֹּל קוֹל יַעֲקֹב בִּצְוָחָה וּבִנְהִימָה, מִדַּם שֶׁשָּׁפְכוּ יְדֵי עֵשָׁו לְהִנָּקְמָה

Jacob's voice was cries out and wails, for the blood spilled by the hands of Esau to be avenged

שְׁפִיכַת דַּם חֲסִידֶיךָ לְעֵינֵינוּ תוֹדִיעַ, וְעַד מָתַי תִּהְיֶה כְּגִבּוֹר לֹא יוּכַל לְהוֹשִׁיעַ, אוֹיְבַי רִיב תָּרִיב וּדְמֵיהֶם תַּשְׁפִּיעַ, אֵל נְקָמוֹת יְיָ אֵל נְקָמוֹת הוֹפִיעַ

The shedding of the blood of your righteous before our eyes will be known, and how long will you be a hero who cannot save, fight my enemies and make their blood flow, God of vengeance, God of vengeance appear!

The Confederate Army

In 1864, Rabbi David Einhorn (1809-1879) preached at the Knesset Israel synagogue on Shabbat Zachor, the Shabbat before Purim. It was the Confederate army that was Amalek. Here is an excerpt:

Amalek is represented in the Bible as the arch-foe of Israel, for he inflicted upon them the most unheard of cruelties, without having been in the least offended by the party attacked; he assaulted the champions of God when they were in a defenceless condition, in a state of utter exhaustion. To carry on a war against such a relentiess foe is an act of selfdefence, not of vengeance. Hence the war-cry: "War for God with Amalek from generation to generation!" It was a war for the existence of God's people, and hence a war for God Himself. In consequence of this arch-enmity against God and His people, Amalek has assumed the type of the evil principle among Israel. It is Amalek's seed, wherever the evil and wicked rule; wherever, especially, rude violence with cheaply bought courage makes war upon defenceless innocence, and wherever a majority in the service of falsehood directs its blows with ruthless fist against the very face of a weak minority. And thus even to-day the war-cry is heard: "God's is the war with Amalek from generation to generation!" Let us then consider how this war should be carried on in our own country and under existing circumstances.

First, — the necessity is presented to us of a war against the Enslavement of Race, which has brought the Republic to the verge of destruction, against an Amalek-seed which is turned into a blood-drenched dragon-seed. Or is it anything else but a deed of Amalek, rebellion against God, to enslave beings created in His image, and to degrade them to a state of beasts having no will of their own? Is it anything else but an act of ruthless and wicked violence, to reduce defenceless human beings to a condition of merchandize, and relentlessly to tear them away from the hearts of husbands, wives, parents, and children?

…God commands no war against the black color, but against the dark deeds of Amalek.

The Nazis

The number of examples of this are simply too numerous to count. Here is the Holocaust Memorial in the Hague. It was designed by Anat Ratzabi, and incorporates an earlier monument known as The Amalek Monument, which surely wins an award for the most inappropriately named Holocaust memorial ever. The Amalek Monument was created in 1967 by Dick Stins and unveiled again in 2007 after a renovation.

The Amalek Monument in the Hague. Dick Stins 1967.

Detail from the Amalke Monument in the Hague.

Jews who wear knitted kippot

In 2013 Rabbi Shalom Cohen, then a member of Shas’s Council of Torah Sages and the head of the Yeshivat Porat Yosef, declared that those who wear knitted skull caps (כיפה סרוגה) were Amalekites. His proof came from the verse this week’s Torah parsha “כִּֽי־יָד֙ עַל־כֵּ֣ס יָ֔הּ” - The Lord has sworn by his throne,” where, he taught, the word כס is an acronym for כיפה סגורה. No, I am not making this up.

“ “כתוב כי יד על כס יה מלחמה לה’ בעמלק, אמרו חכמים שאין הכיסא שלם כל עוד יש עמלק, מה זה ‘כל עוד, ואין הכיסא שלם’? כס זה כיפה סרוגה, שומעים?, כל עוד ויש כיפה סרוגה אין הכיסא שלם, זה עמלק, מתי יהיה הכיסא שלם? כשאין כיפה סרוגה”

— רבי שלום כהן, ראש ישיבת 'פורת יוסף' וחבר מועצת חכמי התורה, 7/13/2013

Israel’s Minister of Education Yossi Sarid

Sitting next to Cohen when he declared Jews who wore knitted skull caps to be Amalek was Rabbi Ovadia Yosef, from whom Cohen had apparently learned a thing or two. On March 3, 2000 (just before Purim that year) Rabbi Yosef targeted Yossi Sarid (1940-2015), who was then leader of the Meretz party and Israel’s Minister of Education: "God will uproot him just as he uproots Amalek; that is how he will uproot him. Haman is cursed? Yossi Sarid is cursed."

“The name of Amalek was invoked to remind us of the ubiquitous nature of antisemitism, the only hate in the world directed against people who are unknown to those seething with hate for us. People like the Houthis in Yemen who never saw a Jew in their life, yet are determined to destroy the Jewish state; Nazis in Germany who traveled hundreds of miles away from home to kill Jews in Belarus, Lithuania, Hungary, and Morocco even though they had never seen or known much about those Jews, that is the kind of evil we speak about when invoking the memory of Amalek.”

— Elchanan Poupko. The Amalek blood libel. Times of Israel, Jan 15, 2024.

The Arab Armies battling the State of Israel

Here too, there are countless examples of the identification of Arab armies with Amalek. One that caught my eye was written by Mordecai Richler in 1994.

Mordecai Richler, This Year in Jerusalem. Knopf 1995. 204

But we will conclude with another description of Amalek as the Arab enemies of the State of Israel. It was published in 1956 by Rav (“The Rav”) Joseph Soloveitchik in his essay Kol Dodi Dofek. He identified the ever present enemies of Israel as Amalek, in a passage that, following October 7th, is remarkably prescient, not only for accurately describing the aspirations of our enemies, but also the silence of the “pious liberals.” Read it and be afraid. Be very afraid.

The ‎evil ‎intentions of the Arabs are not only directed against our national independence but against ‎the ‎continued existence of the Jewish presence in Israel. They aspire to exterminate (God forbid) ‎the ‎‎Yishuv — men, women, children, infants, sheep, and cattle (cf: I Samuel 15:3). At a ‎meeting ‎of Mizrachi (the Religious Zionists of America), I repeated, in the name of my father (of ‎blessed ‎memory), that the notion of “the Lord will have war against Amalek from generation ‎to ‎generation” (Exodus 17:16) is not confined to a certain race, but includes a necessary attack ‎against ‎any nation or group infused with mad hatred that directs its enmity against the community ‎of ‎Israel. When a nation emblazons on its standard, “Come, let us cut them off from being a nation ‎so ‎that the name of Israel shall no longer be remembered” (Psalms 83:5), it becomes Amalek. In ‎the ‎‎1930’s and 1940’s the Nazis, with Hitler at their helm, filled this role. In this most recent period ‎they ‎were the Amalekites, the representatives of insane hate. Today, the throngs of Nasser and ‎the ‎Mufti have taken their place. If we are again silent, I do not know how we will be judged ‎before ‎God. Do not rely on the justice of the “liberal world.” Those pious liberals were alive fifteen ‎years ‎ago and witnessed the destruction of millions of people with equanimity and did not lift a ‎finger. ‎They are liable to observe, God forbid, the repetition of the bloodbath and not lose a ‎night’s ‎sleep.‎

Amalek. Forever.

Tu B'Shavt ~ A New Year for Health

The opening Mishnah of Masechet Rosh Hashanah includes this:

ראש השנה ב ,א

באחד בשבט ראש השנה לאילן כדברי בית שמאי בית הלל אומרים בחמשה עשר בו

On the first of Shevat is the New Year for the tree; [the fruit of a tree that was formed prior to that date belong to the previous tithe year and cannot be tithed together with fruit that was formed after that date;] this ruling is in accordance with the statement of Beit Shammai. But Beit Hillel say: The New Year for trees is on the fifteenth of Shevat.

 Declaring different kinds of New Years goes back to the Talmud. But this practice was updated in a remarkable way by a Russian Jewish immigrant to the US in the early twentieth century. Tonight, we mark the fifteenth of Shvat, the date that, according to Bet Hillel, is the new year for the tithing of trees, and we will tell his remarkable - and overlooked - story, of it has everything to do with Tu B’Shvat.

“Twice a year on the fifteenth day of Shevat and on the eighteenth day of Iyar all the Jewish children from 3 to 13 years of age should undergo a thorough physical examination by the local Jewish physicians free of charge. ”

— Charles Spivak

Charles Spivak and the fight against tuberculosis

Hayyim Haykhl Spivakovski (1861-1927) immigrated to the US from Russia, where he became Charles Spivak. He graduated from Jefferson Medical College in Philadelphia in 1890 (and his thesis, on talmudic theories of menstruation won a prize), and after his wife contracted tuberculosis in 1896 he moved with her to Denver. There she could take advantage of the high altitude which had been shown to help fight the disease. This began his life-long mission to fight the tuberculosis and improve the care of the many Jewish refugees from eastern Europe who contracted it. 

From here.

Spivak founded the Jewish Consumptives’ Relief Society (JCRS), which provided kosher food and a Sabbath atmosphere, but was open to anyone. “We have in our institution chasidim and agnostics,” he wrote in 1914, “Jews and Christians, republicans and progressives, socialists and anarchists, men of all kinds of religious, political and economic options.” Spivak’s personal philosophy was informed by “a unique blend of Yiddishkeit [Jewish values], secularism and socialism” and his approach to the distribution of funds was sometimes at odds with bureaucratic and impersonal ways that some Jewish charities functioned. “We may not be able to return him [the patient] to his family as a useful working unit,” he reminded his benefactors, “we may actually waste money without any hope for any return, nevertheless, we feel that he or she must receive our care and attention, that whole-souled and whole-hearted charity is, after all, the only true, pure and unalloyed charity.” He estimated that of among the 3.3 million Jews then living in the US about 4,600 died each year from the disease, and ten times that number were chronically infected, or as he put it, were “living tuberculous Jews.” It was therefore the duty of the Jewish community to support the fight for to prevent the spread of tuberculosis and search for a cure. 

Dr. Chales Spivak. From here.

In that opening Mishnah of Rosh Hashanah, we read that are several different dates that mark the beginning of different new years. The first day of the Spring month of Nissan is the new year for kings, which is used to date legal documents. The new year for trees is marked in the late winter month Shevat, which is used to count tithes, and first day of the late summer month of Tishrei is used to count the number of years since creation. In December 1918, Spivak updated this list and gave it a thoroughly modern twist. Writing in the Journal Jewish Charities, he suggested that the rhythm of the Jewish calendar could be used to improve public health and reduce the toll from tuberculosis.

Twice a year on the fifteenth day of Shvat (New Years for Trees) and on the eighteenth day of Iyar (Lag B'Omar) all the Jewish children from 3 to 13 years of age should undergo a thorough physical examination by the local Jewish physicians free of charge.  

In the evening of the respective days all organized societies in the community should hold Health meetings at which the subject of how to maintain good health and prevent disease should be discussed by health officers and physicians.

 A custom should also be inaugurated that all adults should visit their family physicians during the months of Tishre and Nisson [sic] for the purpose of undergoing a physical examination.

 Spivak’s suggestion was of course dependent on a working knowledge of the Jewish calendar, but the dates he suggested would help. The fifteenth of Shevat was often celebrated in schools, and Lag B’Omer, the thirty-third day of the period leading up to the festival of Shavuot was celebrated as a minor holiday; it marked the end of the pandemic deaths of the students of the talmudic giant Rabbi Akiva. Most Jewish adults, even those who had jettisoned traditional Jewish practice when they arrived in America, would be aware of the timing of the other two months.  The festival of Pesach (Passover) is celebrated in Nissan, and Rosh Hashanah, the start of the Jewish New Year that leads into Yom Kippur (the Day of Atonement) is commemorated in Tishrei.

Helping others, even after his death

Spivak, a member of the Denver Hebrew Speaking Society, developed liver cancer and died in 1927 at the age of 68. His generous spirit is evident in his last will and testament, where he asked that

…my body be embalmed and shipped to the nearest medical college for an equal number of non-Jewish and Jewish students to carefully dissect. After my body has been dissected, the bones should be articulated by an expert and the skeleton shipped to the University of Jerusalem, with the request that the same be used for demonstration purposes in the department of anatomy.

Apparently his request was fulfilled, and somewhere on the campus of the Hebrew University of Jerusalem is his skeleton.

Denver’s National Jewish Hospital

Spivak was not the only Jew who helped Denver’s many “consumptives.” He had traveled to Denver because of its high altitude, and in there in the 1880s a woman by the name of Frances Wisebart Jacobs raised funds to open a new hospital to treat the many “consumptives” who had traveled to the mile high city. She found support from the Jewish community, which agreed to plan, fund and build a nonsectarian hospital for the treatment of respiratory diseases, primarily tuberculosis. That hospital opened in 1899 as The National Jewish Hospital for Consumptives, and after several name changes it is now known as National Jewish Health. Today, it remains a major center for the care of patients with lung and respiratory illnesses.

““…[Pain] knows no creed, so is this building the prototype of the grand idea of Judaism, which casts aside no stranger no matter of what race or blood. We consecrate this structure to humanity, to our suffering fellowman, regardless of creed.” ”

— Rabbi William Friedman at the laying of the cornerstone of the new hospital. From Tom Sherlock. Colorado's Healthcare Heritage: A Chronology of the Nineteenth and Twentieth Century Healthcare, volume 1, p374.

While the Talmud declared four kinds of new year, Spivak declared a fifth. His new year for health was to be commemorated together with Tu B’Shavt, the new year for trees. In this way, he tied it to the Jewish calendar, and his memory is a reminder of the importance of getting a routine physical exam from your doctor. It might save your life.