Jewish Law in Our Times

by Simon M. Jackson, Adv., Legal Advisor to Torah MiTzion

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3 - ‘Animal Welfare’ v. ‘Human Benefit’: Which Comes First?

The Torah instructs Adam to “have dominion over… every living thing that creeps on the earth” (Bereshit1:28). After Noach and his sons left the Ark, Hashem gave them the blessing that “the fear of you and the dread of you shall be upon every beast of the earth… into your hand are they delivered” (Bereshit 9:1-2). Indeed, both Nimrod and Esav were hunters.

Does man have absolute mastery over the animal kingdom as the above verse and practices would seem to imply? Will ‘human benefit’ always override considerations of ‘animal welfare’?

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In our last column, we saw how Israel’s highest court did not see fit to delve into the age-old provisions of the Halacha, when arriving at its decision to outlaw the force feeding of geese.

In Jewish Law, the prohibition of causing cruelty to animals (tza’ar ba’alei haim) is not an absolute prohibition, and it may be set aside when it conflicts with human needs. “Hashem’s mercies do not extend to the animal kingdom, in order to prevent us from using animals for our needs” (Ramban, Devarim 22:6). Nonetheless, we will soon see that the Halachic Poskim are divided over the question: what is the boundary line between a need which justifies causing suffering to animals and a need which does not justify such suffering? The permissibility or otherwise of force-feeding geese would appear to revolve around precisely this issue.

The Lenient Position

Rema, R. Moshe Isserles (16th century Poland), rules, in his gloss to the Shulchan Aruch (Even Haezer 5:14): “Anything which is necessary in order to effect a cure or for other matters does not entail a violation of the prohibition against tza’ar ba’alei haim… It is therefore permitted to pluck feathers from live geese [in order to obtain quills for writing] and there is no concern on account of tza’ar ba’alei haim.” Nevertheless, Rema concludes, “people refrain from doing so because it constitutes an act of cruelty.” This approach is accepted by the majority of Halachic codifiers, as we will now see.

R. Yaakov Reischer (18th century Prague) was asked whether or not a Jewish physician is permitted to test the effects of a new drug on an animal, such as a dog or cat, in order to discover whether it might prove injurious or even fatal before applying it to human beings. He rules as follows: “Provided there is some need involved - whether for medical uses or even for any financial gain - the act is excluded from the Biblical prohibitions of wanton destruction and cruelty to animals” (Shu”t Shvut Yaakov III:71).

In another responsum (ibid. II:110), R. Reischer addresses the practice of a number of Shochetim to make an incision in the animal’s neck before shechita, to enable them to more easily shecht the animal, by holding the trachea and the esophagus in one hand. He rules that this custom is prohibited, because the degree of benefit is only small… and, in particular, because it is against Minhag Yisrael (Jewish custom). This responsum is very significant for our question, because it implies that there is no blanket permission to cause suffering to animals, and there may be circumstances in which the slight benefit to man does not justify tza’ar ba’alei haim, especially where the act which causes the suffering is not usual amongst God-fearing Jews.

R. Moshe Sofer (19th century Hungary) writes that the prohibition against tza’ar ba’alei haim does not apply when the act is performed “for the benefit of human beings, their honor or financial benefit” (Shu”t Chatam Sofer, Y.D. 312). His inclusion of “human dignity” as a ground to permit tza’ar ba’alei haim refers to the permit given to an old man to refrain from assisting an animal stumbling under its heavy load, where such assistance would be “beneath his dignity.” Even the protection for human dignity can thus justify causing suffering to animals, and not only financial gain.

R. Yitzchak Ya’akov Weiss (20th century Poland-Israel) was asked whether it is permitted to deprive fifteen-month old hens of food for ten days in order to renew the hens’ ability to lay eggs by a further five months or longer. In his opinion (Shu”t Minchat Yitzchak VI:145), this need not be avoided, not even for reasons of piety (midat chasidut), for 3 reasons: (a) the act is one of omission only, not of commission; (b) the suffering caused is not that great, because the hens are allowed to drink; and (c) the hens themselves “benefit” as the time for their slaughter is thus prolonged.

Here it is appropriate to point out that R. Shmuel Wosner (Bnei Brak - one of the preeminent Poskim of our time in the Charedi world), disagrees regarding this issue. While he permits tza’ar ba’alei haim for financial gain, even if “a great degree of suffering” is caused to the animal, he argues that the starvation of hens causes them such an acute level of suffering that it constitutes “cruelty to the heart” (achzariut lev) and is therefore prohibited for financial gain (Shu”t Shevet HaLevi II:7).

The Stringent Position

The common denominator of the Poskim whose views we quoted above is that financial gain justifies tza’ar ba’alei haim, even if it causes a significant degree of suffering to the animal. However, some Poskim, especially those from the 19th century and onwards, have limited this permit, and others have rejected it totally.

R. Yitzchak Dov HaLevi Bamberger (19th century Germany) thus writes (Shu”t Yad HaLevi Y.D. 196): “The proof brought by the lenient Poskim, that all creatures were created only to serve man, is certainly true; however, this statement only proves that creatures must be used for the purpose for which they were created - an ox for yoking and a donkey for burdens - but to change their order of creation?!”

According to R. Bamberger, the prohibition of tza’ar ba’alei haim is only waived for medical purposes, but not for financial gain. Here, however, he expands the permit for other matters which, like medical needs, are “essential” (although the definition of this is not clear: would sustaining one’s family, as opposed to additional income, be essential?). On the other hand, he rules against medical trials whose benefit is not known in advance: for how can the prohibition against certain tza’ar ba’alei haim be overridden by a questionable benefit to man?

From the above, it can be concluded that the majority of Halachic codifiers permit tza’ar ba’alei haim for monetary gain, albeit that they express moral reservation against benefiting in this manner. In other words, it appears that, in their opinion, the question before us is one of conscience, in which the law will not intervene to enforce.

In our next column, we will discuss the scope of the permit of “financial gain.” At the end of the day, can the financial benefit obtained justify the suffering caused to animals in the course of bull or cock fights, or hunting as a sport? Can it justify the practice of force-feeding geese - all in the name of creating luxuries and gastronomic delicacies for human beings?

To be continued!

 

To ask Simon a question regarding this article, or for assistance with any Israeli legal, notary or professional translation services, click here: www.jacksonadvocates.net

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Jewish Law in our Times > Animal Experimentation & Hunting for Sport

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