Ki Teitzei 5771 – Gilayon #716


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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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