Parshat Balak: Human needs and animal cruelty

 

“The Lord opened the mouth of the donkey, and she said to Bilaam, ‘What have I done to you, that you have struck me these three times?’”^[1]

When we see a person strike an animal, we generally assume the person is cruel. But how many of us engage in more subtle forms of animal cruelty, directly or indirectly? How many of us have used glue traps on rodents instead of more humane options? How many of us are unwilling to spend more on eggs, dairy, or meat from animals who aren’t forced to live in tightly packed pens? How many of us have patronized a zoo or circus that kept animals in painful conditions, exploiting them for our entertainment?

I know I am guilty of many of these offenses – due to accidental or willful ignorance, prioritizing my own comfort over those of animals, or plain old apathy. Is this ethical? Is it halakhic?

Dominion over animals

Many of the mitzvot in the Torah have to do with animals; some better their lives, others involve killing them. We are commanded to kill animals to serve God in the Temple and we are allowed to use animals for labor and food. Some people claim God gave people free rule over nature to do with it as we please, based on God’s blessing to people: “Be fruitful and multiply and fill the land and subdue it; dominate the fish in of the sea and the birds of the sky and all creatures that crawl on the earth.”^[2]

This claim neglects that much of the Torah regulates our interactions with God’s creation in general and animals in particular. There’s a limited list of kosher animals that may be eaten or sacrificed which is further governed by laws such as shekhita (kosher slaughtering).^[3] There are also animal “labor laws” that prohibit cruel working conditions – such as the prohibition against muzzling an ox while it is threshing grain – and command us to give our animals a day off on Shabbat, “Six days you shall work and on the seventh day you shall rest so that your ox and donkey may rest…”^[4]

This is a smattering of the explicit Torah commandments that limit the way we can use animals in specific situations, but the Torah does not and cannot cover all circumstances. Just as our sages understood mitzvot such as “you shall be holy because I am holy,” “love your fellow as yourself,” and “you shall do what is good and right” as overarching mitzvot to guide our actions in situations not covered by specific commandments, the prohibition of “tza’ar ba’a’ei chayyim” – animal cruelty (lit. the suffering of living beings) – can be understood as an overarching mitzvah to guide our interactions with animals.^[5]

Yet it is rare to find in-depth examinations of the topic. Few Torah authorities, apart from those deemed “liberal” or “eco-warriors,” discuss the issues of tz’ar ba’alei chayyim the average modern Jewish person encounters. It’s possible that this is related to the disputed scope of the prohibition, but that seems like an oversimplification. As we will see there is widespread consensus that there’s a Torah prohibition against needless animal cruelty and many traditional halakhic applications of the law intimate an obligation to protect the welfare of God’s creatures.

The source of the prohibition

The Torah commands, “If you see the donkey of someone who hates you buckling under its burden, you shall refrain from leaving him, you shall surely free it with him.”^[6] The mishna in Bava Metzia brings several different understandings of the law and the gemara explains that the differences are based on a dispute as to the source of the prohibition: Rabbi Yossi HaGallili thinks tza’ar ba’alei chayyim is a rabbinic mitzvah and Rabbi Shimon thinks it is a Torah mitzvah.^[7]

This debate continues in the Rishonim (earlier halakhic authorities), although the majority agree that it is a mitzvah d’oraita (Torah commandment). Many Rishonim – such as Rashi, Ran, and Meiri – cite the mitzvah of unloading your enemy’s donkey as the source of the prohibition. ^[8] Based on the rabbinic consensus that the extent of the mitzvah to assist unloading a donkey is greater than the mitzvah to assist in its loading, Meiri reasons that while both help our fellow person, the act of unloading is more stringent as it also alleviates the animal’s suffering.

In addition, Meiri cites the prohibition against muzzling an ox while it is working in the field.^[9] Similarly, Ramban explains that the laws of shekhita are meant to prevent unnecessary suffering.^[10] Rosh and Mordechai note cases where halakha permits actions that are otherwise rabbinically prohibited on Shabbat to fulfill the Torah obligation to prevent the suffering of animals.^[11]

Instead of bringing a mitzvah to show that there is a Torah prohibition against tza’ar ba’alei chayyim, Rambam, Rabbi Yehudah HaChassid, and later Chazon Ish cite the angel’s words to Bilaam, “Why did you hit your donkey?”^[12] Rambam explains that cruelty is a character trait – by prohibiting us from acting cruelly towards animals the Torah prevents us from developing cruel habits and encourages us to treat all God’s creatures with mercy.

This mercy is not limited to preventing an animal’s physical pain. He teaches that animals can also experience some forms of mental distress, such as when a mother animal loses her young; the Torah commands us to prevent inflicting such pain with the mitzvah of “shiluakh ha-ken” – sending the mother bird away from the nest before taking her eggs or chicks – and the prohibition of “oato v’et b’no” – killing an animal and its young on the same day.

Multiple prohibitions

Rambam indicates that tza’ar ba’alei chayyim is more than a prohibition against directly and physically harming an animal. Some halakhic authorities differentiate between the types and levels of obligation based on what they understand to be the source of the mitzvah.^[13]

Maharam Shik teaches that the specific mitzvot we’ve discussed can be understood as “case law” from which we can infer general directives on how to treat animals.^[14] The laws of shechita and shiluakh ha-ken teach us not to directly inflict needless suffering. The order in the verse “I will give grass in your fields for your animals and you will eat and be satisfied” teaches us that we must actively prevent an animal’s suffering, such as feeding our livestock before we eat.^[15]

Rav Yaakov Kaminetzky agrees that there’s a Torah prohibition of tza’ar ba’alei chayyim which prohibits directly harming an animal, but he explains that the latter prohibition against passively allowing animal suffering is rabbinic in origin.^[16]

Alternatively, Nimukei Yosef explains that there is a Torah prohibition against allowing tza’ar gadol (great suffering), such as leaving an animal with swollen udders or a heavy burden, and a rabbinic prohibition against lesser suffering – such as leaving an animal stuck in a pit if the animal has food.^[17]

Interestingly, some halakhic authorities state that we are never permitted to directly cause an animal pain; permissible uses of animals do not inflict pain (although they may involve some discomfort). They explain that kosher shekhita is designed to be painless, beasts of burden do not feel pain when used for reasonable labor (and may enjoy it).^[18]

Do we care about an animal’s pain?

Conversely, Ramban claims it’s unlikely that God is concerned with the pain of animals when we are allowed to kill them for our own needs. He criticizes Rambam for claiming otherwise. Instead, he explains that all mitzvot were given with the sole purpose of purifying us and the commandments involving the treatment of animals are not for the animal’s benefit, but for our own.^[19] They prevent us from having cruel hearts and instill within us the value of mercy.^[20]

Ramban seems to view the topic of animal welfare as a zero-sum game – animals may be killed to benefit humans therefore animal welfare is always inconsequential. Rambam offers a more nuanced approach. He too acknowledges that we are permitted to kill animals for food and use them for labor, and he indicates that commandments concerning their welfare are primarily meant to teach us to be merciful. Nevertheless, the Torah commands us to consider the animal’s suffering and limit it as much as possible.^[21] These two approaches are reflected in two different Talmudic stories.

Rabbi Alexandri relates that two schleppers who hated each other were walking down the same road with their loaded donkeys. As one passed the other, he noticed the donkey buckling under its load and turned around to fulfill the commandment “if you see your enemy’s donkey buckling under its burden, you shall refrain from leaving him, you shall surely free it with him,” and they began to work together to fix the donkey’s load.^[22] The second man thought, “I used to think he was my enemy, but seeing how he had mercy on me when he saw me and my donkey in trouble.” They ended up going into an inn to eat and drink together and became loving friends.^[23]

Like Ramban, Rabbi Alexandri indicates that even the mitzvot that expressly benefit animals are meant to benefit people. Unloading the donkey is an act of kindness between one person and another, this kindness allows two enemies to work together towards a shared goal and ultimately leads to reconciliation.

Conversely, a story concerning Rabbi Yehuda HaNassi teaches us that even permitted acts must be performed with mercy; even justifiable cruelty towards animals is liable to be punished. The Talmud relates that a calf sought to escape slaughter in Rabbi Yehudah HaNassi’s robes; he callously told it, “Go! You were created for this [purpose].” This lack of mercy was the direct cause of prolonged suffering, which only abated when he prevented his daughter from sweeping away vermin because, “[God]’s mercy is on all His creatures.”^[24]

Neither of these stories is conclusive, each can be interpreted to support Rambam or Ramban. But ultimately the aim of the mitzvah may not be important; whether it is for our benefit or the benefit of all God’s creatures, all agree that unnecessary cruelty is forbidden and mercy is encouraged. There’s also consensus that humans may cause some suffering to serve their needs.

The limits of tza’ar ba’alei chayyim

Yet there is also much that remains debated. Rema rules that “anything that is necessary for health or anything other thing is not prohibited due to tza’ar ba’alei chayyim,” which he says only applies to “useless” or “needless” cruelty.^[25]

Rema bases his ruling on Terumat HaDeshen, who permits plucking feathers from live geese because animals were created for people to use them. Some explain that the feathers are plucked to be used as quills, but as other sources are available the Ezer Mekudash’s alternative seems more likely; he teaches that people would pluck some feathers before putting the goose in the coop since they thought it helped fatten them. Either way, Terumat HaDeshen rules that we are permitted to use animals for our welfare even if it causes them pain, but there must be a clear benefit.^[26]  He adds that even though plucking feathers is permitted, people refrain from doing so because it is cruel.

So Terumat HaDeshen and Rema differentiate between pain that benefits people and useless pain. As we saw some halakhic authorities differentiate between directly inflicting pain and passively allowing for pain, others between the extent or type of pain (physical or mental). There are many other nuances we haven’t even touched upon, such as if it only applies to domesticated animals, if we are obligated to try and heal animals, and if we must incur financial loss to fulfill the mitzvah. There’s also a major dispute if killing animals is technically tza’ar ba’alei chayyim or not.

Halakhic authorities have explored the applications of tza’ar ba’alei chayyim for centuries; questions often weigh the extent of benefit to people against the harm inflicted upon the animals. It’s permissible to inflict pain when there’s benefit, but what constitutes benefit and is there a limit to the pain? Perhaps there are levels of benefit that permit some suffering but not others?

For example, tza’ar ba’alei chayyim is allowed when it serves a need – medicine, labor, sustenance – and there’s a general consensus that animal testing is allowed for medicinal purposes. But is it also allowed for commercial purposes such as testing beauty products? Is there a difference between direct and indirect infliction of pain – am I prohibited from doing the tests but permitted to buy products that do?

Are there limits to the type of pain one can inflict depending on the extent of the benefit?  We’re permitted to restrict animals’ movement in a pen for food or labor, may we further restrict them so the cut of meat tastes better (i.e. veal)? Or to raise profits (i.e. one of the problems with factory farming)?

Are there “benefits” that are too frivolous to permit tza’ar ba’alei chayyim? For example, it’s permitted to hunt for food or income, but what about hunting for sport?^[27] We’re permitted to ride on donkeys for transportation, but what about donkey rides for the entertainment of children and tourists? Such rides don’t seem to cause much damage, perhaps they are allowed but the damage caused by riding an elephant is not?

A resolution

Even if we had time to address all the issues, we would eventually find that many questions do not have clear answers. As we saw way back in Parshat Bereishit, Rabbi Norman Lamm explains that many of these contemporary ethical questions may purposely extend beyond halakhic considerations, as the scientific and practical considerations are constantly evolving. This does not absolve us of responsibility. And even if clear answers elude us, just asking the questions can make us kinder and more conscientious people, which seems to be the reason for the mitzvah.

[1] Bamidbar 22:28

[2] Bereishit 1:28

[3] Vayikra Chapter 11; Devarim 12:21

[4] Devarim 25:4 – Ramban ad loc; Shemot 23:12.

[5] Vayikra 19:17  and Devarim 6:18

[6] Shemot 23:5

[7] TB Bava Metzia 32a – 33a; see also TB Beitza 26a, 33a; Shabbat 117b, 128b, 154b with commentaries.

In the mishna in Bava Metzia Rabbi Yossi HaGalili teaches that the obligation to unload only applies if the donkey’s load was one it could bear – “its burden,” excluding one that is unusually large. The mishna teaches that one is only obligated to unload the donkey for free, Rabbi Shimon teaches there’s also a mitzvah to load the donkey for free.

[8] Rashi Shabbat 128b “tza’ar”; Ran and Meiri Bava Metzia 32b.

[9] ibid

[10] Shabbat 154b, Bava Metzia 32b

[11] Rosh Bava Metzia 32b is based on tzaar ba’alei chayyim overriding an aspect of muktza. Meiri there uses the dispensation to ask a non-Jew to milk an animal on Shabbat if the animal is suffering because of a swollen udder – even though both milking an animal and telling a non-Jew to do work on Shabbat are prohibited, this is overridden if the animal is suffering.

[12] Guide to the Perplexed 3:17; Sefer HaChassidim 666; Ma’asei Ish V and Tovkha Yabi’u II pg. 476.

[13] Rav Yitzchak Nachman Eshkoli of Ofakim offers what seems to be the only thorough examination of the topic in his book Tz’ar Ba’alei Chayyim. He explains that the source of the mitzvah leads to practical differences between the opinions concerning the source of the mitzvah.

[14] Maharam Shik on 613 Mitzvot, Mitzvah 80

[15] Devarim 11:15, TB Gittin 62a, Beitza 37a.

[16] Based on what many view as a contradiction between Rambam in Guide to the Perplexed and Rambam in Mishneh Torah (Hilkhot Rotzeach 13:1-2) that indicates it’s a rabbinic prohibition. See “Tza’ar Ba’alei chayyim ba’Halakha u’va’Aggada,” Yitzchak Nachman Eshkoli pg. 48 note 89

[17] Nimukei Yosef Bava Metzia 32a, 17b on Ran; based on Beitza 37a. His differentiation is based on a comparison of the laws of Shabbat and Yom Tov; in some circumstances the Talmud permits us to perform rabbinically prohibited actions to prevent tza’ar ba’alei chayyim, but other circumstances do not have the same dispensation. He explains that only Torah level obligations supersede these rabbinic prohibitions, and the Torah only prohibits causing tza’ar gadol (great suffering); lesser suffering is a rabbinic prohibition. So even though both milking an animal and instructing a non-Jew to do something a Jew is prohibited to do are both prohibited on Shabbat, as the latter is a rabbinic prohibition one may ask a non-Jew to milk an animal to prevent painful swollen udders. But if an animal is stuck in a pit, its suffering does not supersede such prohibitions as the animal may be provided with food, thus minimizing their suffering to a rabbinic level and justifying the delay (see discussion on TB Shabbat 128b).

[18] Responsa Chelkat Yaakov 1:30; Seridei Eish 3:7

[19] Devarim 22:6-7, Ramban verse 6.

[20] Based on Bereishit Rabba 44:1, “What does the Holy One, blessed be He, care if one slaughters an animal from the front of the neck or the back of the neck? For the mitzvot were given as a means to purify the creations.”

[21] Rambam bases this on people’s need to eat meat for sustenance. It’s possible Ramban thought that God would have created humans to be herbivores if he did not want us to inflict pain on animals.

[22] Shemot 23:5

[23] Tanhuma Parshat Mishpatim 1

[24] TB Bava Metzia 85a, Tehillim 145:9.

[25] Even Ha’Ezer 5:14

[26] Ezer Mekudash states that plucking a live goose’s feathers is of questionable benefit and therefore he does not allow it in his own household, but since many people believe there is benefit and the women who customarily do so may be anxious if it is prohibited, there is room to allow it based on Terumat HaDeshen’s explanation.

[27] Responsa Shemesh Tzedaka 18 and 57 prohibits hunting for sport. Noda b’Yehudah Tanyana YD 10 states that it is technically permitted but because it is a cruel act associated with evildoers (Esav and Nimrod) it is inappropriate.