of the Rabbinical Assembly in Israel


Bet Midrash Virtuali
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Dinei Nefashot [are heard before a panel of] twenty-three [judges]. An animal charged with carnal intercourse with a woman, and a man charged with committing such intercourse with an animal, [are to be judged by a panel of] twenty-three, for the Torah says "You shall kill the woman and the animal" and it also says "and you shall kill the animal". An ox that is liable to stoning [is to be judged by] twenty- three, for the Torah says "The ox shall be stoned and its owner too": In the same manner as the owners might forfeit their lives, so shall the ox forfeit its life. Wolf, lion, bear, tiger, leopard and snake shall be killed by [a panel of] twenty-three; Rabbi Eli'ezer says that anyone who kills them outright has acted rightly; but Rabbi Akiva says that they must done by [judgment of] twenty-three.

EXPLANATIONS (continued):

We now come to the Seifa [last part] of our present mishnah. This deals with the killing of dangerous wild animals. It is possible to understand our mishnah in more than one way. Tanna Kamma - the anonymous sage who is in conflict with Rabbi Eli'ezer and with Rabbi Akiva - does not make clear whether such animals should be condemned by a Court of Twenty-Three before they manage to kill a human being or only after having done so. In the discussion on this point in the Gemara [Sanhedrin 15b] the great Amora of Eretz-Israel, Resh Lakish, assumes that such an animal should be killed by order of the court only if it has taken a human life. Before drawing too many conclusions as to the opinion of Resh Lakish on the sanctity of the life of other than human animals, let us note that our mishnah is not dealing with an occurrence that could be only hypothetical.

In Eretz-Israel in earlier times the country-side was infested with wild animals such as wolves, lions, bears, snakes and so forth. There are several accounts in the Biblical record that bear out this statement. We need draw attention only to two or three such accounts in order to justify the claim. When David explains to Saul why he does not fear to fight with Goliath [I Samuel 17:34] he mentions that he has had occasion before, when shepherding the family flock, to fight off lions and bears. The prophet Elisha [2 Kings 2:24] is ridiculed by some children who are subsequently attacked and slain by a wild bear. When the inhabitants of Samaria are deported from their land and non-Israelites are imported in their stead by the victorious Assyrians, the half-empty villages and towns are attacked by a pride of marauding lions. However, by the time of Resh Lakish [mid third century CE] there was another kind of wild animal in Eretz-Israel. These were the animals kept by the Roman overlords (and their local imitators) to entertain the masses in the circuses, where gladiators fought with wild animals as well as with other gladiators.

Incidentally, Resh Lakish (actually Rabbi Shim'on ben-Lakish) would have more than just a passing and academic interest in gladiatorial combat. He himself had been a gladiator; it was only a chance meeting with Rabbi Yoĥanan that had changed his life completely. The elder sage had persuaded the young and handsome gladiator to give up his wild life and to take to the study of Torah. The end result was that the gladiator, Resh Lakish, became Rabbi Shim'on ben-Lakish, one of the greatest of the Amoraim that Eretz-Israel ever produced!

The Gemara discusses why Resh Lakish stipulates that such wild animals should only be condemned by order of a court. The conclusion is that he makes this stipulation because it is possible that they may not be completely wild: they may be captive wild animals who have escaped from the supervision of their owner. His colleague and mentor, Rabbi Yoĥanan, sees no reason why such an assumption should be made, because in any case they are wild and dangerous and such animals can never be really tamed. Rabbi Yoĥanan's view seems to reflect the earlier view of Rabbi Eli'ezer in the mishnah that "anyone who kills them outright has acted rightly". (This is the case even though the Gemara understands the phrase I have translated "has acted rightly" as having a different connotation.} However, the Gemara also comes to the conclusion that even Resh Lakish would agree that any wild animal may be killed outright - even if it may be presumed to possibly be the property of an owner - since there must be a permanent understanding that any wild and dangerous animal roaming freely is an immediate threat to human life and may be viewed as "already condemned by the court".

This interpretation however leaves us with the impression that Rabbi Akiva and Tanna Kamma are in agreement, and this is impossible according to the 'modus operandi' chosen by Rabbi [Yehudah the President of the Sanhedrin] as editor of the Mishnah. For the view of Tanna Kamma always represents Rabbi's understanding of accepted halakhah and the views of named sages are to be rejected. The Gemara explains that there is a difference between Tanna Kamma and Rabbi Akiva - concerning snakes: the former believes that even snakes must be condemned by a court, whereas Rabbi Akiva thinks otherwise.


Ed Frankel has sent me the following thoughts:

In each of the discussions regarding the role of the Minor Sanhedrin regarding animals involved in illicit sexuality or wrongful deaths, it seems that animals' rights are protected by more than hermeneutics (midrash). I don't believe it is reading too much between the lines to suggest that the Sages regarded all life as sacred. This of course is not a surprise given rules regarding causing pain to animals. While the tradition regarded the eating of animals as acceptable, it is not a stretch to suggest that the earliest chapters of Breshit indicate a definite preference for vegetarianism. Already within Parashat Noach there are limits to how animals were to be prepared for eating, e.g. the rules of ever min hachai. Rules of slaughter also seem to stress that an animal's feelings must be considered. After all the blade was to be so sharp that its passage would not be sensed.

From another perspective, it also seems that if animals must be judged for their actions, one might wonder if the Sages felt that animals had the capacity for higher thought, perhaps a sense of right and wrong. Just because humankind regards certain activities as evil or unnatural does not require the same of the other species. Yet there might seem to be that presumption here as well. Why else require formal adjudication?

I respond:

Ed wrote the above piece before today's shiur, which does not seem to bear out all his conclusions. The requirement that animals only be killed by an order of court derives from the possibility that they may be someone's property and not from a sense of compassion or respect for the "lower orders". A wild animal posing a potential threat to human life does not come under the rubric of Tza'ar Ba'alei Chayyim [prevention of needless animal suffering]. The rest of Ed's conclusions seem to me to be admirable - but then he knows that I - by choice - am not a carnivore!

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