Channukah ~ What Have the Maccabees Ever Done for Us?

Who could forget that classic scene from The Life of Brian, in which the Judean rebels ask, “What have the Romans ever done for us?”

After much debate, Reg, the rebel leader (played of course by the brilliant John Cleese) concludes “All right, but apart from the sanitation, the medicine, education, wine, public order, irrigation, roads, a fresh water system, and public health, what have the Romans ever done for us?”

We might have asked the same thing about the Maccabees, or as they are known in Hebrew, the Maccabim (spelled either מַכַּבִּים, or מַקַבִּים), the heroes of the story of Chanukah. They gave us Chanukah to be sure, and their name: Maccabi Games and Maccabi Tel Aviv Football Club, and Maccabi Haifa and Maccabi Petach Tikvah, and more. But really, aside from a stunning military victory, a few decades of peace, freedom to worship in the Temple, and some naming opportunities, what have the Maccabim ever done for us? Actually, a lot more than you might have thought. They might have given us everything.

CHANUKAH in a nutshell

As a reminder, Antiochus had set his sights on conquering Alexandria in Egypt but was prevented from doing so by the Romans, who ordered him to withdraw or consider himself to be at war with the Roman Republic. Recognizing when he was defeated, he turned his army north. According to the Second Book of Maccabees (5:11–14), here is what happened next:

Raging like a wild animal, [Antiochus] set out from Egypt and took Jerusalem by storm. He ordered his soldiers to cut down without mercy those whom they met and to slay those who took refuge in their houses. There was a massacre of young and old, a killing of women and children, a slaughter of virgins and infants. In the space of three days, eighty thousand were lost, forty thousand meeting a violent death, and the same number being sold into slavery.

As described by the Jewish historian Josephus (who was not an eyewitness, but lived about a century later), here is what caused the Jewish revolt:

Now Antiochus was not satisfied either with his unexpected taking the city (Jerusalem), or with its pillage, or with the great slaughter he had made there; but being overcome with his violent passions, and remembering what he had suffered during the siege, he compelled the Jews to dissolve the laws of their country, and to keep their infants uncircumcised, and to sacrifice swine's flesh upon the altar; against which they all opposed themselves, and the most approved among them were put to death.

The Maccabim, led by Mattathias (Mattisyahu) and his five sons, waged a guerilla campaign against their Greek oppressors, which culminated in a military victory and the re-dedication of the Temple in Jerusalem. Of course there may have been a miracle, something to do with oil (though the Rambam makes no mention of it, as we have discussed elsewhere), but the real miracle was the restoration of an independent Jewish state under the Hasmoneans, until civil war and an intervention by the Romans ended it all in 63 BCE.

By any account this would be enough for which to thank the Maccabim (well, not the civil war, but certainly the rest). But it turns out that perhaps we owe the Maccabim a great deal more than this.

a search for the terminus ante quem

In 2023, the Israeli archeologist Jonathan Adler published The Origins of Judaism, in which he asked a simple question: what is the earliest archeological evidence for Jewish practice? Adler was not primarily interested in textual evidence (though he cites a fair amount), but with the lived experience of individuals, on their practice and not on their beliefs. Adler focussed on epigraphic and archeological discoveries, to arrive at a terminus ante quem, “the boundary of time when or before which the particular element of Judaism under examination must have first emerged.”

…the date of the earliest available evidence demonstrating that Judeans knew something resembling the Torah and were observing its laws will serve as the terminus ante quem for the earliest emergence of Judaism. That it to say, Judaism must have emerged at this time or earlier. Lacking further evidence, this is the most we can determine with any degree of confidence (18).

I know what you are thinking, and Adler addresses it:

Absence of evidence is not evidence of absence. It is possible, for example, that the Judeans commonly knew of the Torah and were observing its laws for decades or even centuries prior to our established terminus ante quem, and that for whatever reasons no evidence has survived (ibid).

Adler’s conclusion, based on a “data-driven analysis” is that “we possess no compelling evidence dating to any time prior to the middle of the second century BCE which suggests that the Judean masses knew of the Torah and were observing its laws in practice. This will establish the middle of the second century BCE as the overarching terminus ante quem for the initial emergence of Judaism.” Which is to say, the Hasmonean period. Here is just some of that data.

1. Kashrut

   As we have discussed elsewhere on Talmudology, Adler analyzed the makeup of fish remains at 30 sites throughout the southern Levant from the Late Bronze Age through to the end of the Byzantine period (ca. 1550 BCE to 640 CE). They found that “the consumption of scaleless fish— especially catfish—was not uncommon at Judean sites throughout the Iron Age and Persian periods.” In other words, Judeans likely ate catfish, which are not kosher. [You can read a criticism of this claim from Bar Ilan’s Joshua Berman and Ari Zivotovsky here.] Pig remains suggest that by the Roman era, Judeans were not eating pork. “But here the trail of evidence ends. Prior to the second century BCE, there exists no surviving evidence, whether textual or archeological, which suggests that Judeans adhered to a set of food prohibitions or to a body of dietary restrictions of any kind…it is only from the Hasmonean period onward that we may claim to know of Judeans adhering to a set of dietary restrictions of any kind.” (49)

2. Ritual Purity

   Josephus describes two stories set in the second half of the first century BCE that relate to ritual purity. The Dead Sea Scrolls, composed some time in the second or first century BCE are of course full of laws that address this area. And they are mentioned in the Apocrypha and Pseudepigrapha, dated to a similar time. The Maccabim themselves are described (2 Mac 12:38) as having purified themselves “according to the custom” before making camp for Shabbat. Beyond this, the Hebrew Bible provides “little evidence” that the laws of tumah and tahara were known before the second century BCE. For example, although the complex rituals around purification after touching a corpse (tuma’at met) or contracting a skin disease (tzara’at) are mentioned in the Torah, there is not “even one passing allusion to anyone putting these rites into practice elsewhere in the Hebrew Bible.” In addition, although there are many mikva’ot (ritual immersion pools) that date to the Hasmonean period, no stepped mikva’ot have yet been dated “to any time earlier than the late second century BCE” (82).

3. Visual Art

   There is a Torah ban on making a graven image, but the earliest imageless coins were minted in Judea in 131 BCE. In contrast, all the surviving coins minted in Judea in the fourth century BCE display human and animal images. The Persian era Judean authorities included figural images on all their minted coins and exhibited “no signs of regard for any such Pentateuchal prohibition.” Adler suggests that it was only from the Hasmonean era onward “that there is a never before seen aversion to figural art among Judeans” (111).

4. Tefillin and Mezuzah

   We have yet to unearth any tefillin and mezuzot artefacts that predate the second century BCE, though, to be fair, these objects are made of perishable organic material. (Remember, Adler is focussed on the lived experience of the Judeans, not what may have been written in the Torah. The latter certainly predates this.) Fun fact: perhaps the oldest archaeological witness to tefillin or mezuzah is the Nash Papyrus, dated to mid-second century to the mid-first century BCE. But there are many finds that demonstrate that by the first century CE tefillin and mezuzah existed as Judean ritual practices.

5. The Menorah

   “A single golden, seven-branched menorah as prescribed in the Pentateuch certainly stood in the temple prior to its destruction in 70 CE, and both texts and archaeological finds suggest that Judeans living in both the first century CE and the first century BCE were well aware of both its existence and its general appearance. Prior to the mid-first century BCE , not a single example has been found of a seven branched menorah depicted in Judean (or Israelite) art, and earlier texts that speak of either a single or multiple golden or silver lampstands in the temple provide little correspondence with Pentateuchal prescriptions” (167).

Menorot in Judean art only appear from the Hasmonean time onward. From here.

Judaism as a way of Life emerged during the Hasmonean Period

Adler provides more evidence, from the observance of Shabbat and Yom Kippur and Sukkot, to the establishment of the synagogue. You will have to read that for yourself, or listen to a talk in which he outlines his thesis.

Our resolute conclusion has been that some point around the middle of the second century [BCE] should be regarded as our terminus ante quem, the time during or before which we ought to seek the emergence of Judaism….we would be remiss not to regard as at least suggestive the fact that all of the many practices and prohibitions analyzed throughout this book first come into historical focus precisely during the course of the Hasmonean period. Is it possible that Judaism as a way of life followed by Judeans at large first emerged only around this time?

It turns out that the Maccabim have done a lot for us. Way more than you might have once thought. They either (i) left us with the earliest cultural artefacts that belong to a Judaism we might recognize as our own, or (ii) were the first to practice it. Either way,

…it would not be wrong to view Judaism as having emerged out of the crucible of Hellenism, which dominated the cultural landscape of the time. In a poetic way, it seems only fitting that our English word “Judaism” itself is the result of a Hebrew/Greek hybrid, rooted etymologically in the Greek rendering of the Hebrew “yehudayah” merged with the Greek suffix'“-ismos”. (236)

Now that is a something worth saying Hallel for.

---

More Talmudology for Chanukah:

Rashi and Why Women Light the Menorah

Was there a Chanukah Miracle?

December 4th, Shmuel and the Pope

If you live in Israel, you need not read on.

December 4th is a significant day in the Jewish liturgical calendar. It is the day on which those who live outside Israel begin to add the words ותן טל ומטר - give us dew and rain. Here is the talmudic source for this change:

תענית דף י, א

משנה. בשלשה במרחשון שואלין את הגשמים. רבן גמליאל אומר: בשבעה בו, חמשה עשר יום אחר החג, כדי שיגיע אחרון שבישראל לנהר פרת

גמרא. אמר רבי אלעזר: הלכה כרבן גמליאל. תניא, חנניה אומר: ובגולה עד ששים בתקופה.

Mishnah: On the third of Marcheshvan we ask for rain [that is, we insert the words ותן טל ומטר into the Amidah prayer]. Rabban Gamliel said: it is started on the seventh.

Talmud: Said Rabbi Elazar, the law is like Rabban Gamliel. It was taught in a Beraita: Chaninah said: outside of Israel, it is inserted sixty days after the fall equinox.

This is the only Jewish ritual that is tied to a real solar event. That event is the autumnal equinox, the day on which the sun is directly overhead on the equator, and on which the lengths of day and night are (almost) equal.(Please do not write to tell me about Birkat Hachamah. It is not tied to any real solar or other event anywhere in the cosmos. See here for more details.)

This year the autumnal equinox was on September 22nd (at 2:19 pm ET to be precise). The Talmud tells us to begin saying ותן טלֹ sixty days later. So you take out the calendar and count. That will bring us to November 21st. But in every siddur with instructions you will read that we start to recite the addition at Maariv on the evening of December 4th. Which is tonight (or was last night if you are reading this in Australia). That’s a full seventy-three days after the equinox. How did that happen?

It is really not difficult to understand, and requires no skill in observational astronomy or non-Euclidian geometry. Here is the explanation in four easy steps.

1. The Julian Calendar

In the Julian calendar the solar year is exactly 365 1/4 days. That is, 365 days plus an additional 6 hours. This is also the length of the year according to the great talmudic sage of the second century, Samuel of Nehardea. And it is the assumed length of the solar year that is still used today in Jewish calculations. The actual length of the tropical year (i.e. one complete cycle of seasons) is slightly shorter: 365 days, 5 hours, 48 minutes and 46 seconds. That’s a difference of less than twelve minutes. Not much you say. And you’d be right, except that over a century that difference adds up to about 3/4 of a day. So every century the Julian calendar (365.25 days) falls behind the actual length of the year by three-quarters of a day.

2. The Gregorian Calendar

Over hundreds of years that difference adds up to many days, which became a real problem for the Church, when Easter was slipping further back in the calendar. The vernal equinox (a real solar event) had fallen on March 21st in the Julian calendar, but over the centuries had slipped back to March 11th. This threw the calculation of Easter into turmoil. To correct this (and other problems) Pope Gregory removed ten days from the calendar. By papal decree, the last day of the Julian calendar was on October 4, 1582. The next day became the first day of the Gregorian calendar, October 15, 1582. Now the spring equinox would fall on March 21, and everyone would be happy.

3. Jewish law stuck to the old Shmuel - Julian calendar

Rather than go along with this change, it was ignored by rabbis of the early modern period. They would rather have been wrong with Shmuel, than right with the Pope. They added back in the ten lost days. But by 1900 an additional three days of slippage had built up. The calendar of Shmuel is now some 13 missing days behind the Gregorian.

4. So add back in the missing days

If you add an additional thirteen days to the sixty days prescribed by the Talmud, you arrive at….December 4th! I told you it was easy. Here, try it for yourself:

Happy December 4th from Talmudology

From the Talmudology Archives ~ Gratitude is Good for You

Today is יום חמישי in Israel, Thursday in the English-speaking world (not you, Australia - it’s already Friday) and Jueves in the Spanish speaking world. But in the USA, today has a different name: it is called Thanksgiving. To honor this day, we present this post from our archives. Enjoy (and say thank you!).

סוטה מ, א

בזמן ששליח צבור אומר מודים העם מה הם אומרים אמר רב מודים אנחנו לך ה' אלהינו על שאנו מודים לך 

When the chazzan says Modim, what does the congregation say? Rav said “we are grateful for the fact that that we are able to give thanks” (Sotah 40a)

Detail of cover from Thanks! How the new science of gratitude can maker you happier.  By Robert Emmons.  Houghton Mifflin Harcourt, 2007.

Much has been written in the social sciences about the effects of gratitude on a person’s physical and mental health. In the page of Talmud that we are studying today, Rav expressed a rather odd idea- that of all the things for which one could be grateful, the simple ability to be grateful was the most important of all.  Let’s turn to some of that scientific literature and evaluate Rav’s statement.

Gratitude Journals

In a review of the psychotherapeutic effects of gratitude, Robert Emmons from UC Davis and Robin Stern from the Center for Emotional Intelligence at Yale suggest that gratitude involves (a) affirming the “good things” in one’s life and (b) the recognition that the sources of this goodness lie at least partially outside the self. They note that in experimental studies, persons who were randomly assigned to keep gratitude journals on a weekly basis exercised more regularly, reported fewer physical symptoms, felt better about their lives as a whole, and were more optimistic about the upcoming week compared with those who "recorded hassles or neutral life events.” Rather than focus on complaints, they wrote, “an effective strategy for producing reliably higher levels of pleasant affect is to lead people to reflect, on a daily basis, on those aspects of their lives for which they are grateful.” The authors believe that gratitude is an effective psychotherapeutic intervention, which may "spontaneously catalyze the healing process.” 

“Clinical trials indicate that the practice of gratitude can have dramatic and lasting positive effects in a person’s life. It can lower blood pressure, improve immune function, promote happiness and well-being, and spur acts of helpfulness, generosity, and cooperation. ”

— Emmons and Stern. Gratitude as a Psychotherapeutic Intervention. J. Clin. Psychol. 2013. 69:846– 855

Letters of Gratitude

Keeping  a record of things for which you are grateful seems to have  psychological benefits. So does expressing that gratitude to others. Researchers from Kent State University studied the effects of writing letters of gratitude on three qualities of well-being: happiness, life satisfaction and depression.  They followed 219 people who agreed to write letters of gratitude for three weeks.  “Participants were…instructed to write non-trivial letters of gratitude to an individual to express appreciation for them. Participants were asked to be reflective, write expressively, and compose letters from a positive orientation while avoiding ‘‘thank you notes’’ for material gifts.  The researchers reviewed the letters “to insure the basic guidelines were followed”, and found that those in the letter-writing group had a significant improvement in their levels of happiness, which included feelings of gladness, satisfaction and fulfillment.  Compared to the non-writers, the letter writing group also showed an increased life satisfaction.  

“Gratitude appears to be a powerful and preexisting resource that when utilized can produce positive effects upon well-being.”

— Toepfer et al. Letters of Gratitude: Further Evidence for Author Benefits. J Happiness Stud (2012) 13:187–201

Finally, those in the writing group showed significant decreases in symptoms of depression over time, compared to non-writers. The authors concluded that “…writing letters of gratitude may have potential for alleviating depressive symptoms prior to more severe clinical depression. Further investigation is required before such claims can be made but the results are promising.” The study was published in the Journal of Happiness Studies. (Perhaps a subscription to this delightfully titled journal would make a good antidote to news in the papers lately.)

Effect of writing letters of gratitude - means for experimental and control groups on well-being variables and depressive symptoms. From Toepfer et al. Letters of Gratitude: Further Evidence for Author Benefits. J Happiness Stud (2012) 13:187–20. 

If you are looking for an entire book of the psychology of gratitude and appreciation, then you might consider reading Gratitude and the Good Life by Philip Watkins. In his review of the health benefits of gratitude, Watkins notes that “grateful people tend to be religious people.” Watkins emphasizes that religiosity is not a requirement for gratitude, and that there are many non-religious people who are very grateful. Nevertheless, “a number of religious variables show moderate to strong correlations with trait gratitude.” Which leads us to...

Gratitude to God

While there are health benefits to anyone who expresses gratitude, one study looked at the effects of expressing that gratitude to God, rather than to a person, in a paper published in the Journal for the Scientific Study of Religion. There were four authors: two from the University of Michigan and two from the Research Services arm of the Presbyterian Church. (Interestingly no conflict of interest was declared by any of the authors. Should being a member of a Church count as a conflict?) The authors of the paper, Gratitude to God, Self-Rated Health, and Depressive Symptoms, analyzed data from the US Congregational Life Survey and wrote:

 There are three reasons why feelings of gratitude to God may affect physical and mental health. First… gratitude is a positive emotion that arises from the pleasant feelings that are associated with receiving a benefit. Viewing gratitude as a positive emotion is important because a rapidly growing body of research indicates that positive emotions are associated with a range of beneficial physiological effects, including a lower heart rate, lower blood pressure, and improved immune functioning… Second, research… reveals that positive emotions, such as gratitude, are associated with the adoption of a range of beneficial health behaviors, including exercise and medication compliance…Third, research…indicates that people who feel more grateful to God are able to cope more effectively with the deleterious effects of stress....Consistent with earlier research, the results indicate that individuals who feel more grateful to God are more likely to rate their health in a favorable manner…and they are less likely to experience symptoms of depression.

The authorship of מודים דרבנן - A meditation on Gratitude

Today’s page of Talmud cites five different versions of what should be said when the chazzan recites the Modim prayer in the repition of the Amidah. Here they are:

סוטה מ, א

אמר רב מודים אנחנו לך ה' אלהינו על שאנו מודים לך

ושמואל אמר אלהי כל בשר על שאנו מודים לך

רבי סימאי אומר יוצרנו יוצר בראשית על שאנו מודים לך

נהרדעי אמרי משמיה דרבי סימאי ברכות והודאות לשמך הגדול על שהחייתנו וקיימתנו על שאנו מודים לך

רב אחא בר יעקב מסיים בה הכי כן תחיינו ותחננו ותקבצנו ותאסוף גליותינו לחצרות קדשך לשמור חוקיך ולעשות רצונך בלבב שלם על שאנו מודים לך

1. Rav: We are grateful to you Lord our God, for the fact that that we are able to give you thanks.

2. Shmuel: The God of all flesh, for the fact that we are able to give you thanks.

3. Rav Simai: Our creator, and the one who formed creation, for the fact that we are able to give you thanks.

4. The Nehardeans say in the name of Rav Simai: Blessings and praises to your great name for your having given us life and sustained us, and for the fact that we are able to give you thanks.

5. Rav Acha bar Yaakov: So may you continue to keep us alive and find favor in us and may you bring us together and gather our exiles to the courtyards of your sanctuary to observe your decrees and to do your will with a whole heart, for the fact that we are able to give you thanks.

Unable to decide between them, (and not wanting to hurt anyone's feelings,) Rav Pappa ruled that all should be said, (אמר רב פפא הילכך נימרינהו לכולהו)  which is what is done to this day. And this is one explanation of why this prayer is called מודים דרבנן  - it is a prayer of thanks of several rabbis.

As you no doubt will have noted, the one common thread in the five versions is that they all end with the phrase “for the fact that we are able to give you thanks.” As we have seen, evidence from the social sciences suggests that there are numerous health benefits associated with expressing gratitude. Perhaps then, acknowledging the ability to express gratitude is acknowledging that on top of everything else, we are thankful for a way of improving our well-being. Expressing gratitude isn’t just a good idea; it might also improve your mental and physical health. That sounds like something worth doing twice a day.

“I would maintain that thanks are the highest form of thought; and that gratitude is happiness doubled by wonder.”

— G.K. Chesterton. A Short History of England, chapter 6.

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:

זבחים ע,ב

 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 desserts 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.