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Covenant & Conversation 5771: Ki Tetse – Two Types of Hate

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Sep 102011

It is by any standards a strange, almost incomprehensible law. Here it is in the form it appears in this week’s parsha:

Remember what the Amalekites did to you along the way when you came out of Egypt. When you were weary and worn out, they met you on your journey and attacked all who were lagging behind; they had no fear of God. When the Lord your God gives you rest from all the enemies around you in the land he is giving you to possess as an inheritance, you shall blot out the name of Amalek from under heaven. Do not forget. (Deut. 25: 17-19)

The Israelites had two enemies in the days of Moses: the Egyptians and the Amalekites. The Egyptians enslaved the Israelites. They turned them into a forced labour colony. They oppressed them. Pharaoh commanded them to drown every male Israelite child. It was attempted genocide. Yet about them, Moses commands:

Do not despise an Egyptian, because you were strangers in his land. (Deut. 23: 8)

The Amalekites did no more than attack the Israelites once, an attack that they successfully repelled (Ex. 17: 13). Yet Moses commands, “Remember.” “Do not forget.” “Blot out the name.” In Exodus the Torah says that “God shall be at war with Amalek for all generations” (17: 16). Why the difference? Why did Moses tell the Israelites, in effect, to forgive the Egyptians but not the Amalekites?

The answer is to be found as a corollary of teaching in the Mishna, Avot 5:19:

Whenever love depends on a cause and the cause passes away, then the love passes away too. But if love does not depend on a cause then the love will never pass away. What is an example of the love which depended upon a cause? That of Amnon for Tamar. And what is an example of the love which did not depend on a cause? That of David and Jonathan.

When love is conditional, it lasts as long as the condition lasts but no longer. Amnon loved, or rather lusted, for Tamar because she was forbidden to him. She was his half-sister. Once he had had his way with her, “Then Amnon hated her with intense hatred. In fact, he hated her more than he had loved her.” (2 Sam. 13: 15 check). But when love is unconditional and irrational, it never ceases. In the words of Dylan Thomas: “Though lovers be lost, love shall not, and death shall have no dominion.”

The same applies to hate. When hate is rational, based on some fear or disapproval that – justified or not – has some logic to it, then it can be reasoned with and brought to an end. But unconditional, irrational hatred cannot be reasoned with. There is nothing one can do to address it and end it. It persists.

That was the difference between the Amalekites and the Egyptians. The Egyptians’ hatred and fear of the Israelites was not irrational. Pharaoh said to his people:

‘The Israelites are becoming too numerous and strong for us. We must deal wisely with them. Otherwise, they may increase so much, that if there is war, they will join our enemies and fight against us, driving [us] from the land.’ (Ex. 1: 9-10)

The Egyptians feared the Israelites because they were numerous. They constituted a potential threat to the native population. Historians tell us that this was not groundless. Egypt had already suffered from one invasion of outsiders, the Hyksos, an Asiatic people with Canaanite names and beliefs, who took over the Nile Delta during the Second Intermediate Period of the Egypt of the pharaohs. Eventually they were expelled from Egypt and all traces of their occupation were erased. But the memory persisted. It was not irrational for the Egyptians to fear that the Hebrews were another such population. They feared the Israelites because they were strong.

(Note that there is a difference between “rational” and “justified”. The fear of the Egyptians was in this case certainly unjustified. The Israelites did not want to take over Egypt. To the contrary, they would have preferred to leave. Not every rational emotion is justified. It is not irrational to feel fear of flying after the report of a major air disaster, despite the fact that statistically it is more dangerous to drive a car than to be a passenger in a plane. The point is simply that rational but unjustified emotion can, in principle, be cured through reasoning.)

Precisely the opposite was true of the Amalekites. They attacked the Israelites when they were “weary and weak.” They focused their assault on those who were “lagging behind.” Those who are weak and lagging behind pose no danger. This was irrational, groundless hate.

With rational hate it is possible to reason. Besides, there was no reason for the Egyptians to fear the Israelites any more. They had left. They were no longer a threat. But with irrational hate it is impossible to reason. It has no cause, no logic. Therefore it may never go away. Irrational hate is as durable and persistent as irrational love. The hatred symbolized by Amalek lasts “for all generations.” All one can do is to remember and not forget, to be constantly vigilant, and to fight it whenever and wherever it appears.

There is such a thing as rational xenophobia: fear and hate of the foreigner, the stranger, the one not like us. In the hunter-gatherer stage of humanity, it was vital to distinguish between members of your tribe and those of another tribe. There was competition for food and territory. It was not an age of liberalism and tolerance. The other tribe was likely to kill you or oust you, given the chance.

The ancient Greeks were xenophobic, regarding all non-Greeks as barbarians. So still are many native populations. Even people as tolerant as the British and Americans were distrustful of immigrants, be they Jews, Irish, Italian or Puerto Rican. What happens, though, is that within two or three generations the newcomers acculturate and integrate. They are seen as contributing to the national economy and adding richness and variety to its culture. When an emotion like fear of immigrants is rational but unjustified, eventually it declines and disappears. So far is the United States from persistent hostility to Jews that, as a result of recent research, Harvard sociologist Robert Putnam has shown that Americans have warmer feelings toward Jews than to the members of any other faith.

Antisemitism is different from xenophobia. It is the paradigm case of irrational hatred. In the Middle Ages Jews were accused of poisoning wells, spreading the plague, and in one of the most absurd claims ever – the Blood Libel – they were suspected of killing Christian children to use their blood to make matzot for Pesach. This was self-evidently impossible, but that did not stop people believing it.

The European Enlightenment, with its worship of science and reason, was expected to end all such hatred. Instead it gave rise to a new version of it, racial antisemitism. In the nineteenth century Jews were hated because they were rich and because they were poor; because they were capitalists and because they were communists; because they were exclusive and kept to themselves and because they infiltrated everywhere; because they were believers in an ancient, superstitious faith and because they were rootless cosmopolitans who believed nothing.

Antisemitism was the supreme irrationality of the age of reason.

It gave rise to a new myth, The Protocols of the Elders of Zion, a literary forgery produced by members of the Czarist Russia secret police toward the end of the nineteenth century. It held that Jews had power over the whole of Europe – this at the time of the Russian pogroms of 1881 and the antisemitic May Laws of 1882, which sent some three million Jews, powerless and impoverished, into flight from Russia to the West.

The situation in which Jews found themselves at the end of what was supposed to be the century of Enlightenment in emancipation was stated eloquently by Theodor Herzl, in 1897:

We have sincerely tried everywhere to merge with the national communities in which we live, seeking only to preserve the faith of our fathers. It is not permitted us. In vain are we loyal patriots, sometimes superloyal; in vain do we make the same sacrifices of life and property as our fellow citizens; in vain do we strive to enhance the fame of our native lands in the arts and sciences, or her wealth by trade and commerce. In our native lands where we have lived for centuries we are still decried as aliens, often by men whose ancestors had not yet come at a time when Jewish sighs had long been heard in the country . . . If we were left in peace . . . But I think we shall not be left in peace.

This was deeply shocking to Herzl. No less shocking has been the return of antisemitism to parts of the Middle East and even Europe today, within living memory of the Holocaust. Yet the Torah intimates why. Irrational hate does not die.

Not all hostility to Jews, or to Israel as a Jewish state, is irrational, and where it is not, it can be reasoned with. But some of it is irrational. Some of it, even today, is a repeat of the myths of the past, from the Blood Libel to the Protocols. All we can do is remember and not forget, confront it and defend ourselves against it.

Amalek does not die. But neither does the Jewish people. Attacked so many times over the centuries, it still lives, giving testimony to the victory of the God of love over the myths and madness of hate.

Covenant & Conversation 5770: Ki Tetse – Rehabilitation of Offenders

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Aug 212010

This week’s sedra provides us with a fine example of the humanity of Jewish law – as well as the way the sages interpreted the Torah. Our point of departure is this passage:

When men have a dispute, they are to take it to court and the judges will decide the case, acquitting the innocent and condemning the guilty. If the guilty man deserves to be beaten, the judge shall make him lie down and have him flogged in his presence with the number of lashes his crime deserves, but he must not give him more than forty lashes. If he is flogged more than that, your brother will be degraded in your eyes. (Deut. 25: 1-3)

The passage is not straightforward, since in Jewish law lashes are not a form of punishment in civil cases as the verse seems to imply. However, our focus will be on the last phrase: “your brother will be degraded in your eyes”.

The sages derived from this a fundamental principle, namely the rehabilitation of an offender once he has served his punishment. In the earlier part of the passage the offender is called ha-rasha, translated here as “the guilty” but which literally means “the wicked”. At the end, however, he is called “your brother”. From this, the sages (Sifre ad loc.) drew the conclusion that “once he has been beaten, he becomes [again] your brother”.

This has both a specific and more general application. The specific rule applies to offences that carried with them the severe punishment of karet, literally “being cut off” from one’s people. In many cases this was interpreted as a divine rather than human punishment; the human punishment was to receive lashes. The principle that “once he has been beaten, he becomes [again] your brother” was taken to mean that the human punishment cancels the divine punishment. Once the offender has been beaten, there is no residual guilt (Mishnah, Makkot 3: 15).

In addition, however, the sages inferred the far wider principle that when the guilty has received the punishment his offence deserved, he is restored to his earlier status. For example, he is permitted to be a witness, and his testimony is not invalidated by the fact that previously he had been found guilty of an offence. The stain on his character is temporary, not permanent. Offenders are to be rehabilitated.

This led to a specific enactment by the sages, known as takkanat ha-shavim, a rule designed to remove obstacles to penitence. The Mishnah (Gittin 5:5) teaches that “If a beam which was acquired by robbery has been built into a building, restitution for it may be made in money so as not to put obstacles in the way of penitents.”

The rule is that in the case of robbery, the guilty party must return what he has taken to its rightful owner (“He shall restore that which he took by robbery”, Lev. 5: 23). This makes obvious sense. If a robber were allowed merely to make monetary compensation rather than return the stolen object, the law would, in effect, allow someone to acquire an object – albeit at a price – by violence. That must be wrong.

Yet this rule was suspended in a case where returning the object would involve massive loss on the part of the robber. The situation envisaged by the Mishnah is one where, having stolen a beam, the robber has used it to build a house. Restoring the beam would involve tearing down the house. A sense of guilt at the original crime might induce remorse in the robber and an effort on his part to return objects he has wrongly taken. If, however, this would involve disproportionate loss on his part – not just returning the stolen object, but also having to dismantle what he has built using it – he might decide that restitution was just too costly, and decide against giving the object back.

So what, one might say. The man is a robber. What matters is the right of the innocent – the original owner of the beam – not the right of the guilty. Surely the robber, by breaking the law, has forfeited any claim on the court’s clemency. Yet Jewish law ruled otherwise. To be sure, the owner must be compensated for his loss. Without this, he will have suffered an injustice. But we must have concern for the offender also, in the sense that we must clear away any obstacles in the path of his return to law-abidingness. The sages fully understood that this was not part of Torah law. It required a positive enactment, takkanat ha-shavim, on their part. But the sages would not have made this enactment if they did not feel that it was in the spirit of Torah law.

They went further still. We find in the Talmud (Baba Kamma 94b) this remarkable principle: “If robbers or usurers [repent, and of their own accord] are prepared to restore what they have wrongly taken, it is not right to accept it from them, and one who does so is not acting with the approval of the sages.” The Talmud explains how this teaching emerged from an actual case.

In the time of Rabbi Judah ha-Nasi, head of the Jewish community in the early third century, a robber decided to end his life of crime and restore everything he had wrongly taken to its owners. His wife said to him: “Fool. If you give back everything you have taken, you will not be left with even the belt you are wearing.” The rule was then instituted those who had been robbed should not insist on the return of their property.

Needless to say, this does not apply to a robber who has been brought to court – only to one who has, without any prompting other than his own conscience, decided to confess his guilt and make amends. Nor does it apply if the robber still has the stolen objects in his possession. Nor is it a legal requirement. The rightful owner may still take the robber to court if he so chooses. Some go so far as to say that this was never intended as a permanent enactment, for it is all too easily exploitable: robbers could steal and then pretend to be penitent (see Maggid Mishneh to Rambam, Hilkhot Gezelah 1: 13). Yet despite all this, Maimonides writes: “Even though robbing someone is like taking their life . . . we must help [a robber who repents of his own accord] and pardon him in order to bring him back to the right path of penitents” (Hilkhot Gezelah 1: 13).

Another principle the sages articulated – this time on the basis of a biblical command – was that one should not make reference to a penitent’s past. One should not say to someone who committed a crime, but has now served his sentence and expressed remorse, “Remember the crime you committed”. To do so is to be guilty to “verbal oppression”, which is forbidden by the verse, “You shall not oppress one another, but you shall fear your God; I am the Lord your G-d” (Lev. 25: 17; Rambam, Hilkhot Teshuvah 7: 8). In the tenth century, Rabbenu Gershom instituted a rule that one who made public mention of a penitent’s earlier deeds was to be excommunicated (Teshuvot Chakhmei Tzorfat, 21).

The rules of rehabilitation are complex, and I make no attempt to summarise them here. Yet it is clear that from earliest times the sages tempered their concern for justice with a desire to help criminals and wrongdoers find their way back to honesty and society. What mandated them to do so was the teaching of the prophet Ezekiel:

“Son of man, say to the house of Israel: This is what you have been saying, ‘Our offenses and sins weigh heavily on us, and we are sick at heart because of them. How can we survive?’ Say to them, ‘As surely as I live, declares the Sovereign Lord, I take no pleasure in the death of the wicked, but rather that they turn from their ways and live. Turn back, turn back from your evil ways, that you may not die, O house of Israel.” (Ezekiel 33: 10-12)

Not only were these teachings many centuries ahead of their time. They also have much to teach us today. Retributive justice is not incompatible with a sense of human dignity and freedom. To the contrary, it is based on them. Jewish law is concerned not only to protect the rights of those who have been wronged, but also to help wrongdoers rebuild their future. Guilt, in Judaism, is about acts, not persons. It is the act, not the person, that is condemned. Once the criminal has served his punishment and repented of his crime, he becomes, once more, “your brother”.

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Covenant & Conversation 5769: Ki Tetse – The Parameters Of Justice

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Aug 292009

In Deuteronomy 24, we encounter for the first time the explicit statement of a law of far-reaching significance:

“Parents shall not be put to death for children, nor children who put to death for parents: a person shall be put to death only for his own crime. (Deut. 24:16)”

We have strong historical evidence as to what this law was excluding, namely vicarious punishment, the idea that someone else may be punished for my crime:

For example, in the Middle Assyrian Laws, the rape of unbetrothed virgin who lives in her father’s house is punished by the ravishing of the rapist’s wife, who also remains thereafter with the father of the victim. Hammurabi decrees that if a man struck a pregnant woman, thereby causing her to miscarry and die, it is the assailant’s daughter who is put to death. If a builder erected a house which collapsed, killing the owner’s son, then the builder’s son, not the builder, is put to death. (Nahum Sarna, Exploring Exodus, p. 176)

We also have inner-biblical evidence of how the Mosaic law was applied. Joash, one of the righteous kings of Judah, attempted to stamp out corruption among the priests, and was assassinated by two of his officials. He was succeeded by his son Amaziah, about whom we read the following:

After the kingdom was firmly in his grasp, he [Amaziah] executed the officials who had murdered his father the king. Yet he did not put the sons of the assassins to death, in accordance with what is written in the Book of the Law of Moses where the Lord commanded: “Fathers shall not be put to death for their children, nor children put to death for their fathers; each is to die for his own sins.” (2 Kings:14: 5-6)

The obvious question, however, is: how is this principle compatible with the idea, enunciated four times in the Mosaic books, that children may suffer for the sins of their parents?”The Lord, the Lord, the compassionate and gracious G-d, slow to anger, abounding in love and faithfulness, maintaining love to thousands, and forgiving wickedness, rebellion and sin. Yet He does not leave the guilty unpunished; He punishes the children and their children for the sin of the fathers to the third and fourth generation.” (Ex. 34: 7; see also 20:5; Numbers 14: 18; Deut. 5: 8)

The short answer is simple: It is the difference between human justice and divine justice. We are not G-d. We can neither look into the hearts of wrongdoers nor assess the full consequences of their deeds. It is not given to us to execute perfect justice, matching the evil a person suffers to the evil he causes. We would not even know where to begin. How do you punish a dictator responsible for the deaths of millions of people? How do you weigh the full extent of a devastating injury caused by drunken driving, where not only the victim but his entire family are affected for the rest of their lives? How do we assess the degree of culpability of, say, those Germans who knew what was happening during the Holocaust but did or said nothing? Moral guilt is a far more difficult concept to apply than legal guilt.

Human justice must work within the parameters of human understanding and regulation. Hence the straightforward rule: no vicarious punishment. Only the wrongdoer is to suffer, and only after his guilt has been established by fair and impartial judicial procedures. That is the foundational principle set out, for the first time in Deuteronomy 24: 16.

However, the issue did not end there. In two later prophets, Jeremiah and Ezekiel, we find an explicit renunciation of the idea that children might suffer for the sins of their parents, even when applied to Divine justice. Here is Jeremiah, speaking in the name of G-d:

In those days people will no longer say, ”The fathers have eaten sour grapes, and the children’s teeth are set on edge.’ Instead, everyone will die for his own sin; whoever eats sour grapes-his own teeth will be set on edge. (Jeremiah 31: 29-30)

And this, Ezekiel:

The word of the Lord came to me: “What do you people mean by quoting this proverb about the land of Israel: ‘The fathers eat sour grapes, and the children’s teeth are set on edge’? “As surely as I live, declares the Sovereign Lord, you will no longer quote this proverb in Israel. For every living soul belongs to me, the father as well as the son-both alike belong to me. The soul that sins is the one who will die.” (Ezekiel 18: 1-3)

The Talmud (Makkot 24a) raises the obvious question. If Ezekiel is correct, what then happens to the idea of children being punished to the third and fourth generation? Its answer is astonishing:

Said R. Jose ben Hanina: Our master Moses pronounced four [adverse] sentences on Israel, but four prophets came and revoked them . . . Moses said, “He punishes the children and their children for the sin of the fathers to the third and fourth generation.” Ezekiel came and declared: “The soul that sins is the one who will die.”

Moses decreed: Ezekiel came and annulled the decree! Clearly the matter cannot be that simple. After all, it was not Moses who decreed this, but G-d Himself. What do the sages mean?

They mean, I think, this: the concept of perfect justice is beyond human understanding, for the reasons already given. We can never fully know the degree of guilt. Nor can we know the full extent of responsibility. The Mishnah in Sanhedrin (4: 5), says that a witness in capital cases was solemnly warned that if, by false testimony, a person was wrongly sentenced to death, he, the witness, “is held responsible for his [the accused's] blood and the blood of his [potential] descendants until the end of time.” Nor, when we speak of Providence, is it always possible to distinguish punishment from natural consequence. A drug-addicted mother gives birth to a drug-addicted child. A violent father is assaulted by his violent son. Is this retribution or genetics or environmental influence? When it comes to Divine, as opposed to human justice, we can never reach beyond the most rudimentary understanding, if that.

Two things are clear from G-d’s words to Moses. First, He is a G-d of compassion but also of justice – since without justice, there is anarchy, but without compassion, there is neither humanity nor hope. Second, in the tension between these two values, G-d’s compassion vastly exceeds His justice. The former is forever (“to thousands [of generations]“). The latter is confined to the lifetime of the sinner: the “third and fourth generation” (grandchildren and great-grandchildren) are the limits of posterity one can expect to see in a human lifetime.

What Jeremiah and Ezekiel are talking about is something else. They were speaking about the fate of the nation. Both lived and worked at the time of the Babylonian exile. They were fighting a mood of despair among the people. “What can we do? We are being punished for the sins of our forefathers.” Not so, said the prophets. Each generation holds its destiny in its own hands. Repent, and you will be forgiven, whatever the sins of the past – yours or those who came before you.

Justice is a complex phenomenon, Divine justice infinitely more so. One thing, however, is clear. When it comes to human justice, Moses, Jeremiah and Ezekiel all agree: children may not be punished for the sins of their parents. Vicarious punishment is simply unjust.

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Covenant & Conversation 5768: Ki Tetse – Animal Welfare

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Sep 132008

TODAY’S SEDRA WITH ITS PANOPLY OF LEGISLATION BRINGS THE DREAM TO LIFE. Yes, says Moses in effect: We have left Egypt. We have reached the brink of the promised land. There will be wars to fight, battles to win, land to settle. But do not think these things are ends in themselves. They are means, preliminaries only. Our real task is to create a new kind of society, with G-d in its midst and respect for human dignity as its aim. We did not come out of Egypt only to create another Egypt. You, the next generation, are to become joint architects of a reality that will give practical expression to the dream.

Reading the sedra we are struck by the seemingly effortless interweaving of reality and the dream. Ki Tetse does not address a society of saints. It is a programme for the real world with all its failings and conflicts. The opening is blunt. It speaks about soldiers who fall in love with the daughters of their enemies; about fathers who favour one son over others; about stubborn and rebellious children.

It is said that when the State of Israel was born, it was an overwhelming experience for visitors to see Jewish policemen, Jewish street cleaners, Jewish farmers. For eighteen centuries Jews had been confined to a narrow range of livelihoods. Now they were embarking on the normal life of nations. One gets something of this feeling reading the legislative programme of Ki Tetse. No longer are we in the world of desert nomads who miraculously get water from rocks and bread from heaven. Israel in the promised land is going to be a nation with ordinary human problems which it must learn to deal with as graciously as possible.

“As graciously as possible” – that is the key. For though the legislation confronts ordinary human situations, it still resonates with high ideals. Five times the sedra uses the verb “remember.” Five times it makes reference back to Egypt. This is not to be a nation that begins life with a tabula rasa, a clean slate. It is to be one that never forgets its origins. The Egyptians treated you badly, Moses implies; therefore do not treat others badly. You are to become the opposite of Egypt. Use justice and compassion rather than power. Feel for the poor; do not afflict them. Honour sexual ethics rather than sexual desire. Don’t hand runaway slaves back to their masters. When you take security for a loan do it in such a way as not to humiliate or incapacitate the borrower. Small details; high ideals.

For Judaism takes time seriously – one of the hardest things for a nation to do. Most civilizations throughout history have been seduced by one of three alternatives: conservatism or defence of the status quo; revolution, the complete overthrowing of the status quo; or laissez faire, leaving society to unfold without a map, with no particular preference for one way rather than another.

By contrast, Judaism has a destination but it knows that getting there takes time. It takes time to abolish slavery, institute economic justice, create peace instead of war. It takes more than one generation. Therefore, says Moses, begin with small steps. Make things better, not perfect. At the same time, teach your children your ideals. That way, they will continue the journey and take it further. Judaism is about the long slow walk from real to ideal.

ONE DETAIL DESERVES SPECIAL ATTENTION. Ki Tetse is about relationships: between men and women, parents and children, employers and employees, lenders and borrowers. Strikingly though, it is also about relationships between humans and animals.

Descartes thought that animals lacked souls. Therefore you could do with them as you pleased. Judaism does not believe that animals lack souls – “The righteous person knows the soul [nefesh] of his animal, but the kindest acts of the wicked are cruel,” says the Book of Proverbs. To be sure, this is only nefesh [=life force]. Judaism is neither sentimental nor fetishistic. In the ancient world there were cultures that regarded certain animals as sacred. Reading Schopenhauer, one almost gets the impression that he cared more for animals than for human beings. Judaism does not go down either of these two roads. But it does regard animals as sentient beings. They may not think or speak, but they do feel. They are capable of distress. There is such a thing as cruelty to animals [tza'ar baalei chayyim], and as far as possible it should be avoided.

Thus, for example, in Ki Tetse we read:

Do not muzzle an ox when it is treading grain.

What is striking about this law is that it parallels provisions for human beings as well:

When you come [to work] in your neighbour’s vineyard, you may eat as many grapes as you desire to satisfy your hunger. However, you may not put any into a receptacle that you may have. When you come [to work] in your neighbour’s standing grain, you may take the ears with your hand. However, you may not lift the sickle [for your own benefit] in your neighbour’s grain.

The principle is the same in both cases: it is cruel to prevent those working with food from eating some of it. To be sure, in the case of humans there is a delicate balance of reciprocal responsibility. The employer must allow his employee to eat, but the employee must not engage in petty theft. But the parallel is instructive. Animals, too, have feelings and they must be respected.

Another law:

Do not plough with an ox and donkey together.

Here, two principles are at stake. The first is the avoidance of cruelty. The ox is stronger than a donkey. Expecting the donkey to do the work of an ox is unfair. The second principle can be seen by context:

Do not plant two kinds of seed in your vineyard; if you do, not only the crops you plant but also the fruit of the vineyard will be defiled.

Do not plough with an ox and donkey together.

Do not wear clothes of wool and linen woven together.

The underlying principle of all three laws is respect for biodiversity and the integrity of species. This is a good example of one of the underlying features of Jewish law, namely that Judaism is to be understood as a totality. G-d the lawgiver is also G-d the creator and G-d the redeemer. There are laws that echo the history of redemption (“and you shall remember that you were slaves in Egypt”). There are also laws that flow from the structure of creation. The laws above – against mixed seeds, mixed animals, mixed cloth – have their origin in the first chapter of Genesis:

Then God said, “Let the land produce vegetation: seed-bearing plants and trees on the land that bear fruit with seed in it, according to their various kinds.” And it was so. The land produced vegetation: plants bearing seed according to their kinds and trees bearing fruit with seed in it according to their kinds. And God saw that it was good . . .

And God said, “Let the land produce living creatures according to their kinds: livestock, creatures that move along the ground, and wild animals, each according to its kind.” And it was so. God made the wild animals according to their kinds, the livestock according to their kinds, and all the creatures that move along the ground according to their kinds. And God saw that it was good.

The repetition is unmistakable, as is the implication: creation is good when boundaries between distinct kinds are respected. This is the priestly voice in Judaism, the voice of order and respect for difference, the voice that “distinguishes” one thing from another and recognises the place of each in the ecology of being.

THE MOST FASCINATING DETAIL of animal legislation in the sedra is the law of “sending the mother bird away”:

If you come across a bird’s nest beside the road, either in a tree or on the ground, and the mother is sitting on the young or on the eggs, do not take the mother with the young. You may take the young, but be sure to let the mother go, so that it may go well with you and you may have a long life.

Much has been written on this command. Here I discuss only the analysis given by Moses Maimonides, fascinating in its complexity.

A law which appears twice in the Mishnah (Berakhot 5:3, Megillah 4:9) states that if a leader of prayer says, “Your mercies extend even to a bird’s nest,” he is to be silenced. The Talmud offers two possible explanations, one of which is that such a prayer “makes it seem as the attributes of G-d are [an expression of] mercy, whereas in fact they are [mere] decrees.” In both his commentary to the Mishnah and his code, the Mishneh Torah (Tefillah 9:7) Maimonides adopts this view and adds an explanation: If the reason for sending the mother bird away were Divine mercy toward animals then, in consistency, G-d should have forbidden killing animals for food. The law therefore should be understood as “a non-rational command [mitzvah shema'it] which has no reason.”

In the Guide of the Perplexed, (3: 48) however, he adopts the opposite approach. There he rejects the very idea that there are commands which have no reason. Applying this to Torah legislation about animals, he says that meat-eating is necessary for human health. That is why the killing of certain animals for food is permitted. Shechitah, however, has been ordained because it is the most painless way to kill an animal (according to the most recent scientific research, it still is). He continues:

It is also prohibited to kill an animal with its young on the same day, in order that people should be restrained and prevented from killing the two together in such a manner that the young is killed in the sight of the mother, for the pain of the animals under such circumstances is very great. There is no difference in this case between the pain of human beings and the pain of other living beings, since the love and tenderness of the mother for a young ones is not produced by reasoning but by imagination, and this faculty exists not only in man but also in most living beings . . . the same reason applies to the law which enjoins that we should let the mother bird fly away when we take the young . . .

Thus Maimonides, contrary to the stance he takes in his code, argues that the law does have mercy or compassion as its logic. Moreover, what it seeks to avoid inflicting is not physical but psychological pain. Maimonides’ remarks here anticipate recent findings in socio-biology which suggest that many species do indeed resemble humans in their ability to form groups, engage in reciprocal altruism, and display a range of emotions. In fact – as biblical law implies – it is almost always the mother that forms an ongoing bond with the young. Among animals fatherhood is usually far less developed. Thus the Torah’s concern with the mother animal or bird is empirically well founded.

Elsewhere in the Guide (3:17) however, Maimonides takes yet another position. In relation to humans, Divine providence extends to individuals; amongst animals, only to species. The reason we must not cause animals pain is not because the Torah is concerned about animals but because it is concerned about us. Human beings should not be cruel:

There is a rule laid down by our sages that it is directly prohibited in the Torah to cause pain to an animal. This rule is based on the words [of the angel to Bilaam], “Why have you beaten your ass?” The object of this rule is to make us perfect, that we should not assume cruel habits, and that we should not uselessly cause pain to others – that on the contrary, we should be prepared to show pity and mercy to all living creatures except when necessity demands the contrary.

Maimonides thus embraces three seemingly conflicting views:

1. the law of the mother bird is a Divine decree with no reason,

2. it is intended to spare the mother bird emotional pain,

3. it is intended to have an effect on us, not the animal, by training us not to be cruel.

In fact all three are true, because they answer different questions.

A parent tells a young child to go to bed early. The child obeys out of respect for parental authority, but that is not why the parent gave the order. From the point of view of the parent it was because she understands the child’s need for sleep. Likewise there is a difference between the reason we obey the law of the land (otherwise order would collapse) and the reason a particular law was legislated. Proposition 1. above tells us why we should obey the command to send the mother bird away, not why it was commanded in the first place. We should obey it because it is a Divine decree.

Moving to the reason for a particular law, there is a difference between immediate and ultimate concerns. Suppose there is a law against certain fuel emissions. The immediate reason may be that they contribute to global warming which damages the earth’s ecology. “So what?” someone might say. “The worst effects of global warming will be felt in places far from here, and besides, by the time they happen none of us will still be alive.” Such a person needs to be taught, not about global warming but about something else altogether, namely our collective responsibility to mankind and to future generations.

In the case of the mother bird, 2. tells us the immediate reason. To allow a mother bird to witness the death of its child is cruel. “So what?” someone might say. “A bird is only an animal, not a human being, and animals do not have rights.” To answer this we must move from immediate to ultimate reasons. “Cruelty is wrong whether practiced against animals or human beings – not because animals have rights but because we have duties. The duty not to be cruel is ultimately based on the need to acquire virtue and rid ourselves of vice. The primary context of virtues is the relationship between human beings. But virtues are indivisible. Those who are cruel to animals are often cruel to people. Cruelty to animals is forbidden not only because of its effect on animals but also because of its effect on us.” Hence proposition 3. Interestingly, Maimonides’ analysis was repeated almost exactly, six centuries later, by the greatest philosopher of modern times, Immanuel Kant.

WE THUS BEGIN TO UNDERSTAND the subtlety of the Torah’s approach to ethics. The Israelites were commanded to create an ideal society. But this is the work, not of a day, but of many centuries. Hence the Torah’s vision of a journey of small steps. Each of the laws of Ki Tetse is justified in itself, but taken together and practiced for many generations, they begin to have larger effects. Husbands and wives, employers and employees, learn that relationship is built on respect, not the use of (physical or economic) power. Slowly the reasons that cause human beings to acquire others as slaves lose their legitimacy. Only then can slavery be abolished. And so on.

Within this moral ecology, respect for animals has a significant place. Animals too are part of G-d’s creation. They have their own integrity in the scheme of things. What is more – as we are now discovering – they are far closer to human beings than philosophers like Descartes thought. What is being rediscovered by science was known to Jews long ago because the great heroes of the Bible – Abraham, Moses, David – were shepherds. They lived their formative years watching over and caring for animals. That was their first tutorial in leadership, and they knew that this was one way of understanding G-d Himself (“The Lord is my shepherd”).

The Torah also understands what we are in danger of forgetting – that the moral life is too complex to summarise in a single concept like “rights.” As well as rights, there are duties – and there can be duties without corresponding rights. Animals do not have rights because they are not moral agents. Nonetheless, we have duties toward them. One of those duties, expressed in many Torah laws, is not to cause them unnecessary pain, and that includes, in the case of the mother bird, psychological pain.

We become what we worship, the Torah implies. At most times, ancient and contemporary, people have worshipped power. Jews learned early that the worship of power is idolatry. Power exalts one part of creation by diminishing another. The G-d of Abraham is the G-d not of a part but of the whole. Therefore a society based on Torah respects the whole, especially the powerless. Hence the consistent emphasis in Ki Tetse on the different categories of vulnerable individuals – women, employees, borrowers, animals – each of whom are often exploited, taken advantage of, used. That is not how you, My people, may behave, says G-d. Here is how you begin a journey whose end is a society of respect for the integrity of creation. Small steps to a momentous destination.

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