Parshat Ki Tetseh

You shall not see your brother's donkey or his ox falling by the way and ignore him. You shall surely raise them up with him. (Devarim 22:4)

You shall not see your brother's donkey. In Parashat Mishpatim (Shemot 23:5) the text reads "If you see your enemy's donkey" whereas here we read "your brother's donkey". This comes to teach that if one was your enemy he should return to being your brother in helping to raise together, and that the hatred shall be forgotten and that love should be remembered.

(Rabeinu Bchayeh, ibid., ibid.)

 

…Here the subject is assistance in loading, whereas in Shemot 23 the subject is assistance in unloading. There (v. 4-5) the returning of lost objects and unloading are judged as assistance which should be offered even to an enemy and a hater; it is also an obligation towards the animal, in order to spare the animal anguish. Here the mitzvah of protection of property and the offering of assistance are judged as a general obligation which orders the social condition… the Torah of Israel is far from that emotional excess which demands that everyone forgo his personal ego and selflessly sacrifice his soul. It does not demand this practice as a general and habitual rule of shared social life, and it does not hold that a good deed is marked only by self-sacrifice. This point of view cannot be a general principle. Yet more, its application will lead to the abolishment of all social negotiation, because its very exaggeration turns it into an unrealistic ideal. It may encourage one to develop coarse egotism. The Jewish social principle obligates everyone, giving full moral force to one's concern for his existence and his independence, but alongside man's concern for himself, it - the Jewish moral principal - obligates concern for the other. At the same time that a person is involved with his personal needs, he is obligated to share concern and assist in guarding his fellow's possessions and advancing his enterprises.

(Rabbi Shimshon R. Hirsch ibid., ibid.)

 Of birds and men

Ariel Rathaus

In memory of my mother and mentor Beracha,

daughter of Yehudah David Zuker z"l,

Died on 11 Elul 5744

The commandment to 'send forth from the nest' (mitzvath shiluach hakan) is a tiny package holding a great deal of content. It is an uncommon mitzvah dealing entirely with a bird and its progeny, but one from which may be derived far-reaching insights, extending far beyond its limited frame. The warm and maternal image which the Torah describes in verse 6, "the mother is crouched over the fledglings or over the eggs': may be connected to other "bird" images in the Bible that serve as metaphors for protection and shelter. So, for example, "Like an eagle who rouses his nest, over his fledglings he hovers (Devarim 32:11), and "I shall transport you on the wings of eagles", as per the drash [homiletical explication] (Shemot 19;4, see Rashi). The shelter simile assigned to the wings of God is common in Scripture (see Psalm 57:2; 61:5, and others; Ruth 2:12). It is a popular idiom in the Hebrew language ("to find shelter beneath the wings of the Shekhina"), and until modern times it fired the imagination of authors and poets. For example, the famous lines of C. N. Bialik: "Alone, alone have I remained, and the Shekhina too, her broken right wing trembling over my head" ("Alone"). In the case of the mitzvah under discussion, the tables are turned. The bird is not protecting; she herself is in need of protection. And the text, of course, is not speaking metaphorically; It speaks of a real bird and a real nest, one which a person may really encounter in a field or forest or, howbeit rarely, in a city. We are to send away the mother, and then may we take the fledglings or the eggs. If we so do, we are to be rewarded with a good and long life. The protection offered is only temporary - in the end we are permitted to take the fledglings - but protection it is, and its significance is subject to controversy. The subject of shiluach hakan is mentioned in Talmud in the context of the Mishna which determines that one who - intending to increase God's praises - recites in his prayers "May your mercies extend to the bird's nest", is to be silenced (Berachot 5;3). The Talmud offers two explanations of the gag order: "Two Amoraim in the west [a common connotation of the land of Israel appearing in the Babylonian Talmud], Rabbi Yossi bar Avin and Rabbi Yossi bar Z'vida, are in dispute. One says: Because it causes jealousy among God's creatures, and the other said: Because it presents the measures taken by the Holy One, blessed be He, as springing from compassion, whereas they are but decrees "(Berachot 33b).

The Amoraim's respective rationales indirectly suggest two different explanations for the commandment of shiluach hakan. According to the first , it may well be that the reason for the commandment is that the Holy One indeed has mercy on birds (See Maharsha, ibid.), but it is forbidden to vocally proclaim this because inevitably the question will arise: And what about the others? Does not God's compassion encompass them? Just like those calamity-survivors who tell with religious fervor about the great personal miracle granted them, even as others were destroyed, so the supplicant described in the Mishnah is liable to arouse more speculation about the half-empty cup than praise for the half-full cup.

According to the second rationale, the mitzvah of shiluach haken is not to be explained as God's compassion towards the bird: We know nothing about why we are commanded to act is such a way. The supplicant's error is that in his entreaty he professes to explain the mitzvah as an expression of compassion, whereas it, like all other commandments, is but a decree from above. It is superfluous to point out that the second approach is identical - or at least close - to the position which maintains that "Mitzvoth were given only to purify people" (Bereishit Rabba 34:1), a position which annuls or minimizes the attempt to attribute a specific reason - be it logical, moral, or mystical - to each and every mitzvah.

Maimonides, in his Mishneh Torah, rules that we do indeed silence the supplicant what says "May He who had mercy etc.", and justifies this ruling with the second reason suggested in the Talmud "Because these mitzvoth are decrees of Scripture, and not expressions of mercy" (Laws of Prayer 9:7; compare with M's remarks in his "Commentary on the Mishnah"). In his "Guide for the Perplexed", however, where he deals with significance of the commandments on a philosophical plane and takes the approach that mitzvoth do indeed have rationales which may be discovered though deliberation and rational analysis, he says the opposite! The reason for the commandment to send away the bird from the nest is indeed that the Torah does show mercy and considers the suffering of creatures. Maimonides' words on this matter are unequivocal and far-reaching. He compares the prohibition against "taking the mother from the sons" to the prohibition of slaughtering an ox or lamb and their offspring on the same day (Vayikra 22:28), claiming a single reason for both:

It is likewise forbidden to slaughter it and its young on the same day, this being a precautionary measure in order to avoid slaughtering the young animal in front of its mother. For in these cases animals feel very great pain, there being no difference regarding the pain between man and the other animals. For the love and tenderness of a mother for her child is not consequent upon reason, but upon the activity of the imaginative faculty, which is found in most animals just as it is found in man (Guide for the Perplexed, III, 38)

This approach is quite bold, seeming to me to deviate from the traditional halachic discourse regarding "suffering of creatures" (tsaar baalei hayim), which focuses of physical suffering. (Compare with the discussion of the question whether the injunction against causing animal suffering is a Torah prohibition or a rabbinic one (Bavli, Bava Metsia 32a-33a). Maimonides' discussion seeks the characteristics shared by man and animal as regards certain extra-rational emotional-psychological processes. Maimonides' does so without detracting from the value of those feelings that are connected to "the imaginative faculty" and therefore certainly "baser" but even so they are deserving - both in the case of man and of animal - of respect. (Thus the words of Maimonides pre-date current philosophical discourse in the field of bio-ethics, in which the issue of moral attitude to animals is on the agenda).

Nachmanides, in his commentary on the two passages relative to shiluach haken - presenting an encompassing and deep explication which is a sort of miniature theological treatise - takes issue with Maimonides' position. Similar to Maimonides in the "Guide", Nachmanides is also of the opinion that one should seek and clarify the rationale of mitzvoth.

He concurs that shiluach haken is comparable to the prohibition against "he and his son" the rationale for both being, in his words, "so that we not have a cruel heart and show no mercy". The meaning of this mercy differs from that of which Maimonides wrote. It would seem that Nachmanides does not accept the blurring between man and animal apropos the ethical act. The moral relationship is a human matter, not relative to animals. We are obligated to show pity for animals not because of pity or moral obligation towards them, but so that we should not become accustomed to cruel behavior and become cruel to humans. So writes Nachmanides t at the end of his commentary:

…for His [God's] mercies do not extend to those beings possessing a brutish soul so far as to deny us exploiting them for our needs, for were it not so, He would have forbidden slaughter. But the reason for preventing [us from cruelty to animals] is to educate us towards compassion that we not be cruel, for cruelty spreads in man's soul, as we know the slaughterers of large oxen and donkey are killers, very cruel slaughterers of man, and therefore they [the sages] said 'The worthiest of butchers are partners of Amalek" (Bavli, Kiddushin 82a). These mitzvoth pertaining to animal and bird are not [due to] mercy upon them, but rather they are decrees to guide us and implant in us noble qualities.

Despite their points of concurrence, Maimonides and Nachmanides disagree with regard to man's place in the world of ethical values; Maimonides opens a narrow opening (narrow – but still an opening) to the breaking of man's monopoly on the array of ethical commitments. Nachmanides guards this exclusivity, the uniqueness of man as a moral object. But from both Maimonides and Nachmanides we learn important ethical principles, principles which certainly do not contradict each other.

Maimonides teaches us that the words of "Thy righteousness, is like the mighty mountains, your justice like the great deep; man and beast You deliver, O Lord" (Psalm 36:7) are not idiomatic embellishment; they are to be understood as pshat [plain meaning]. But from Nachmanides we learn that cruelty is among the most dangerous of character traits, that it easily gains control over man and warps his personality, and therefore it is not proper to tolerate it or to encourage it. This holds true, we may add, even when it is employed to punish cruelty or to defend against it.

Dr. Ariel Rathaus, literary researcher and translator, teaches in the Hebrew University in Jerusalem.

 

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