Legal Advisor to Torah Mitzion
“Let Animals Live,” an organization for the protection of animal rights, petitioned the Israeli Supreme Court in 1997 to render unlawful the presentation of an alligator exhibit to visitors in Chamat Gader, which concluded with a battle between man and alligator lasting for 47 seconds.
The District Court had argued that there was no objective evidence that pain or suffering was inflicted upon the alligators during the show: “The petitioner failed to show that this trick causes the alligator actual pain or suffering, beyond some discomfort and stress.”
How did the Supreme Court rule, applying the principles of Halacha?
The Supreme Court overturned the District Court’s verdict. Particularly illuminating was the recourse by two out of the three Supreme Court Justices to the principles of Halacha in reaching its decision.
Justice Michael Cheshin noted that while Israeli law prohibited three types of behavior – the torture of animals, cruelty against animals, and the abuse of animals – it did not specify what types of behavior are prohibited in advance. “Instead, these provisions deal primarily with the moral imperative enshrined therein, the prohibition against cruelty to animals (tza’ar ba’alei chaim)… As such, the prohibition that concerns us does not set out precise boundaries of conduct. Nor does it list the prohibited deeds. Instead it plants the tree that bears the fruit.” The Court made it clear that the purpose of the law was to protect animals from harm and abuse in any way – unlike the District Court which ruled that only incidents of severe suffering were prohibited.
The Court asked itself: “Why do courts and legislatures see fit to set out rules for the protection of animals? The first and chief basis for these prohibitions is founded on our innermost feelings that abusing animals, treating them cruelly or torturing them is immoral and unfair. The empathy that we feel for abused animals derives from a place deep in our hearts, from our sense of morality, feelings imprinted in our hearts, elicited by the sight of the weak and helpless being harmed…”
Justice Cheshin cited two laws in the Torah – the duty to assist the owner in unloading merchandise or materials carried by a beast of burden (Shemot 23:5), and the similar obligation to come to the assistance of a fallen animal, even that of one’s enemy (Devarim 22:4). He then posed the question: when faced with both commandments simultaneously (freeing the beast of its burden, or returning the burden to the beast’s back), which comes first? Justice Cheshin answered this question, by citing Maimonides’ Laws Regarding Murder and the Preservation of Life 13:13: “He who encounters both a man attempting to unburden his animal, and one placing his merchandise on his beast, is commanded to assist the former, and only then the latter, in order to spare the animal waiting to be unburdened further suffering.” From this he concluded that we are commanded not to cause animals pain for they are living beings.
Slaughtering a cow and sheep is both possible and permissible, and yet it is forbidden to slaughter such a beast and its offspring on the same day – “this being a precautionary measure in order to avoid the slaughtering of the young in front of its mother. For in these cases, animals feel very great pain, there being no difference regarding this pain between man and the other animals. For the love and the tenderness of a mother for her child are not consequent upon reason, but upon the activity of the imaginative faculty, which is found in animals just as it is found in man…” (Maimonides, Guide to the Perplexed II:48).
A second perspective, cited by Justice Cheshin in his opinion, teaches that both the commandment to send the mother bird from her nest, as well as the prohibition against slaughtering an animal and its young on the same day, aim to prevent man from becoming cruel, and to protect his soul from being corrupted by cruel deeds. “For cruelty enters, infects and spreads through the soul… the commandments are intended to teach us the value of compassion” (Nachmanides, Devarim 22:6).
While identifying with Maimonides’ viewpoint, Justice Cheshin acknowledged the importance for us to learn kindness and compassion. “When an audience sits down to watch a bull-fight, screaming and cheering ‘Ole!’ with blushing faces, gawking at the sight of a bull with knives stuck in its back, its blood gushing in spurts, we can very well expect that, upon exiting the stadium, the members of the audience will be rude to their fellow man, in the spirit of the performance that they just witness. One whose heart is dull and unfeeling towards an animal may be equally insensitive towards his fellow man.”
And Justice Cheshin cited with approval an earlier decision of the Supreme Court, in which the Court commented: “I am far from comfortable with this uncivilized behavior to which the respondents seek to privilege Israeli society, as if all the other uncivilized behaviors imported from abroad in abundance did not suffice. These performances [‘The War if the Bulls 1978’], even in the “delicate” form to which the current respondents aspire, risk inflaming the masses and increasing the threat of violence – risks and threats that our society has had enough of already.”
As to the case at hand, involving a fight between man and animal purely for the sake of amusement and entertainment, Justice Cheshin similarly concluded: “Not only does the performance not embrace any educational values, but the message sent is quite the opposite – ‘anti-educational’… One who treats helpless animals cruelly shall become hard of heart and is one step away from hurling the same treatment upon his fellow man; those who watch someone abuse animals will also stand idly by as humans are being abused.”
“The performance is essentially a violent one. Violence is supplied to us in abundance and no more of it is needed… In truth, certain recognized sports do involve much violence and cause suffering to the competitors. However, at least in those instances, the competitors take this risk upon themselves from the onset…”
Justice Turkel, after commending his colleague Justice Cheshin for having “sumptuously filled our places with choice teachings about his prohibition against cruelty to animals,” had the last word: “It is the petitioner’s privilege to have its petition enshrined as a rule of law. This rule is not only legal, but a moral and humane imperative as well. The time is ripe for such a rule and, indeed, our times require it.”
Next column: The force-feeding of geese for the production of foie gras (fatty liver delicacy) – Halacha and Israeli law compared.