Jewish Law - Commentary/Opinion

Animal Trials
Nosson Slifkin

Animal Trials

by Nosson Slifkin

In 1386 a trial was held in Falaise on account of a child who had been injured in the face and arms. The accused, wearing a waistcoat, breeches, and white gloves, was sentenced to being mangled and maimed in the head and arms before being garroted and hanged at the village scaffold. The torture and punishment in itself is not so odd, considering the year; the peculiarity of the case is that the accused was a pig, in the literal sense of the term.

This is but one of the numerous cases described in Jan Bondeson's essay Animal Trials in his intriguing book, The Feejee Mermaid and Other Essays in Natural and Unnatural History (New York: Cornell University Press 1999). Not all cases involved capital punishment. In 1559, the Saxon vicar Daniel Greysser excommunicated the sparrows that infested his church. In seventeenth century Russia, a goat butted a child down a flight of stairs, and was sentenced to one year in a prison camp in Siberia. In 1734, the Franciscan friars in the province of Riedade no Maranhão, Brazil, brought a suit against the termites that were damaging their houses. The brilliant defense attorney, however, spoke of the industriousness of the termites, and pointed out that they lived in Brazil before the monks. The court resolved it by ordering the monks to provide the termites with a reservation, and ordering the termites to leave the monastery and to live only within the reservation.

Edward Payson Evans, in The Criminal Prosecution and Capital Punishment of Animals (London 1906) theorized that the Church instigated such trials in order to unite the parishioners and inspire confidence in the authority and power of the church. There is likely to be some truth in this, but it should be noted that such trials were not restricted to the Middle Ages. In 1926, a stray German Shepherd in Kentucky was charged with the attempted murder of a small child; it was sentenced to death and executed in the electric chair. In 1974, a judge in Tanzania sentenced a goat that had grazed on a private lawn to four days in jail. And in 1991, an Argentinean dog killed a child and was sentenced to lifetime imprisonment.

The philosopher J.J. Finkelstein (Transactions of the American Philosophical Society 71/2 [1981]) believed that animal trials were based on the Biblical laws concerning the execution of a murderous ox. There may be a glimmering of truth in that. Let us analyze classical Jewish approaches to animal crimes, based on those Biblical laws.

"If an ox gores a man or a woman, that they die; then the ox shall be stoned, and his flesh shall not be eaten; but the owner of the ox shall be acquitted." (Shemos 21:28).

Why is the animal killed? Is it being punished for a moral crime? That would seem to be impossible. Animals do not have free will to choose between good and evil; they possess only an evil inclination, states the Gemara in Berachos 61a (according to the explanation of the Maharsha). This would appear to be referring to their being governed by the simple instincts of hunger and so on (as opposed to a desire to act evilly; see the final essay in my book Focus for a full discussion of this distinction.) If they have committed no moral crime, it would seem unreasonable for the execution to be a punishment.

We know that there is no concept of retribution for animal crimes from the Midrash: "An animal that dies is at rest; but people who transgress God's commandments and anger Him with their unbefitting deeds and die unrepentant are stood in judgment…" (Tanna D'vei Eliyahu Zuta 24). There is no Heaven and Hell for animals; they have no moral choices to make. Why, then, is the goring ox stoned to death?

Rabbeinu Bechaya (see too Rambam, Moreh Nevuchim 3:40) states that it is simply a way of financially punishing the owner: "The killing of the ox is not done to exact judgment from the ox, but rather to exact judgment from its owner, such that he should be more careful in looking after it. And if he does not take care of it, he now knows that he will lose his property. This is the simple explanation."

It is interesting that Rabbeinu Bechaya qualifies his explanation by noting that it is only the simplest level of explanation, for his answer leaves several difficulties unresolved. Ramban (to Bereishis 9:5) points out one reason why financial punishment cannot be the explanation for the ruling: "The stoning is not in order to financially punish the owner, for even a wild ox is subject to the death penalty, and the commandment applies equally to non-Jews as to Jews." (Although we do not actually rule that an ownerless ox is put to death, in accordance with Rabbi Yehudah's view in Bava Kama 44b, the Rashba, in Teshuvos 1:114, explains that since such an opinion nevertheless exists, it cannot be that financial punishment is the reason for the mitzvah.)

Another difficulty with the explanation of financial punishment is provided by the work Margaliyos Hayam (to Sanhedrin). He notes that the ox is not merely put to death; it actually undergoes a trial, in the presence of twenty-three judges of the Sanhedrin, and a sentencing procedure. Furthermore, its body may not be eaten; if its execution was a financial punishment, one would expect that the flesh would be given to the victim's family, or at least to the public or Beth Din coffers. The entire procedure seems extremely similar to a human trial.

The Margaliyos Hayam therefore proposes a novel explanation. He states that a murderous animal houses the reincarnated spirit of a person. Thus, it is really the human spirit inside the animal that is being punished, rather than an ordinary animal.

Although the explanation of the Margaliyos Hayam solves many of the difficulties, some will nevertheless find it difficult to accept. Furthermore, there is a powerful question to be asked on this explanation. If animals that commit harmful acts are really the reincarnated spirits of people, then why are animals not punished for injuring people, only for killing them?

Actually, it is not only for taking a human life that an animal is killed. The Torah also rules that if a man or woman engage in bestial relations with an animal, they are both stoned to death. The Mishnah (Sanhedrin 54a) raises our question: "If the person has sinned, how has the animal sinned?" It is interesting to note that the Jews explicitly rejected the idea that an animal can be morally accountable for its actions, including sexual sins, over two thousand years ago, while centuries later, the non-Jewish world was still confused over the issue. From the fourteenth through to the eighteenth centuries, both people and animals involved in bestiality were not merely executed; they were tortured and burned alive. In France, a person who had relations with a Jew suffered the same fate, as a Jew was considered to be no superior to an animal.

Going back many centuries to the Mishnah, the "inferior" Jews were explaining why an animal used for bestiality, although not morally accountable, is nevertheless executed: "Since the person came to harm due to it, the Torah said that it should be stoned. Another explanation: So that the animal should not pass through the streets and people say, 'This is the animal on account of which so-and-so was stoned.' "

The latter explanation accounts for why the animal is removed from the picture; after all, unlike a goring ox, this animal poses no threat to society. But the first explanation seeks to account for the whole business of the stoning. Yet it is somewhat cryptic: "Since the person came to harm due to it, the Torah said that it should be stoned." What does this mean?

If we return to the lethal animals, and to the words of the Ramban, we seem to find the key to the whole topic. Ramban's explanation occurs in the context of God's decrees to Noach regarding the new order in the post-Flood era: "I shall demand your blood, your lives; I shall demand it from all the animals" (Bereishis 9:5). On this verse, Ramban raises our question: "I wonder: If this 'seeking' is in the simple sense of the term, that He shall punish animals for this in the same way as humans — surely an animal does not possess an intellect, that it should be punished or receive reward!" Ramban proceeds to give an explanation that is very similar to the Mishnah's explanation for the stoning of the animal used for bestiality: "But perhaps such is the case only for the blood of man, that any animal which kills him should itself be killed, as a decree of the King. This is the reason behind, 'The ox shall be stoned, and its flesh shall not be eaten' (Shemos 21:28)."

Ramban is noting that there is no general concept of reward and punishment for animals, for there is no moral accountability on their part. Rather, their trial and execution is demanded "only for the blood of man," and for bestiality. The point in these cases is not that the animal is being held accountable for its actions. The trial and execution is not based on the animal at all. Rather, it is based on the human participant. The procedure is designed, as a decree of the King, to uphold the dignity of His servant, man.

Upholding the dignity of man – something that had been lost in the pre-Flood morass of immorality. Upholding the dignity of man – something that necessitated the post-Flood generation being permitted to eat meat, in order to establish their position in the world, higher than that of animals. Upholding the dignity of man – something that requires animals who have negated this to be tried and executed in the same manner as human offenders.

There is another, intriguing explanation of animal trials, that is broader in application. For there are many instances where God punishes animals, and there are even cases of reward.

The Exodus is the prime source of such accounts. We are told that the frogs which performed the self-sacrifice of entering the ovens in the Egyptian plague were rewarded by being allowed to return to the water; the other frogs were killed. The dogs in Egypt did not attack the Jews, and we are therefore commanded to give them any meat which is unfit for human consumption. The donkeys carried the spoils out of Egypt and they were rewarded with the laws of redeeming their firstborn. And the horses of the Egyptians were killed in the Red Sea because they chased after the Jews.

It is not only animals that receive reward and punishment. The Midrash (Koheles Rabbah 8:12) states that even a tree, the wood of which is used to make a weapon, ultimately faces retribution for this. This is astonishing! It is abundantly clear that not only do trees have no free will; they have no will at all. How can they undergo retribution?

The explanation of this cryptic concept is profound (and I have attempted to explain it at greater length in my essay The Pan-Dimensional Operating System, parashas Bechukosai, in Second Focus). It is easier to understand if we consider the concept that everything in the physical world is a reflection of higher spiritual realities. The physical can therefore be used as a parable for understanding the metaphysical. It is no bizarre coincidence that when you stub your toe on a rock, the rock inflicts pain on precisely the part of your body that you used to inflict force on it. To every action there is an equal and opposite reaction. It doesn't matter whether you intended to stub your toe on the rock or not. There are certain laws of nature, and all actions have consequences.

The same is true of the reward and punishment being discussed here. They are no mere arbitrary whims of the Creator. Rather, they are innate consequences of the actions that take place, according to the scientific laws of the metaphysical reality. The animal is not being punished for a moral wrongdoing; it is undergoing recompense, the inevitable consequences of its actions.

Although broad in application, this explanation might be too mystical for some readers' tastes. Perhaps the most straightforward explanation is of the Sefer HaChinnuch (mitzvah 52). It states that an animal's actions are comparable to the inadvertent actions of a human being, since both are done without da'as, true awareness. We kill the animal and even prohibit its meat to show how a sin such as killing a person causes one to become an object of disdain and disgust in the eyes of Heaven. From the animal trial, a person will learn to take particular care to distance himself from such sins. The laws of animal trials exist to make an impression on people and thereby influence human behavior.

Along similar lines, Rabbi Mordecai Kornfeld, shlita, pointed out to me that there is another instance where there was a rule that an animal stood in trial before a court of twenty-three judges and was executed: an animal that wandered onto Mount Sinai. Rabbi Kornfeld therefore suggested that the Sanhedrin are required because of the severity of man deciding to take the life of an animal. Slaughtering an animal for food is something for which we have already been granted a free license from Hashem. But killing animals for other reasons is a grave matter. To stress the severity of this matter, a court of twenty-three judges is required.

With these explanations, the death sentence of the animal and the trial serve to teach lessons to us about the evil of sin and about the severity of taking a life. Rabbi Kornfeld also pointed out that the three crimes for which animals are put to death correspond to the three cardinal sins of idolatry, murder and sexual immorality, which are so severe that we are required to forfeit our lives rather than transgress them. The animal that wanders onto Sinai parallels the sin of idolatry, in that it shows disregard for the Creator's authority. The ox that kills a man parallels the sin of murder. The animal that is used for bestial purposes parallels the sin of sexual immorality. Since these are the three crimes for which animals are put to death, it further hammers home the severity of such sins.

Whichever explanation for animal punishment is ultimately the correct one – and they may all be correct – there is certainly a considerable difference between Jewish animal trials and those of the non-Jewish world. Although sometimes there were similar lines of reasoning to those that we have presented – occasionally animals were believed to be reincarnated souls, and often there was simple obedience to Biblical law – in most cases the animal was considered morally accountable for its actions, and thus deserving of torture and hideous forms of execution. We never administer such forms of punishment, and we also know that animals are not morally accountable for their actions.

And we don't dress them up in clothes, either.

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This essay is extracted from the ongoing publication of the Torah Universe series of books (available at http://www.www.feldheim.com), which explore how the lessons of the Torah are manifest in the natural world. Already published is the book "Seasons of Life," which shows how the Jewish year is reflected in the seasons and the life cycles of animals and plants. Awaiting publication is "Nature's Song," which explains the ancient Midrash of Perek Shirah that details the philosophical and ethical lessons manifest in the natural world; and "Creature Chorus," a collection of essays on Torah and the animal kingdom. The author, Nosson Slifkin, studies at the Mirrer Yeshivah and teaches at Ohr Somayach Institutions. He also leads Torah education projects at the Jerusalem Biblical Zoo and at other zoos worldwide, described at http://www.zootorah.com, and can be reached at zoorabbi@zootorah.com.