Berachot 33a ~ Injuries from Cows

Under what circumstances of threatened physical danger may a person interrupt her prayers? Getting too close to snakes is not a good idea, but cows are a problem too.

ברכות לג, א

אָמַר רַבִּי יִצְחָק: רָאָה שְׁווֹרִים — פּוֹסֵק. דְּתָנֵי רַב הוֹשַׁעְיָה: מַרְחִיקִין מִשּׁוֹר תָּם — חֲמִשִּׁים אַמָּה, וּמִשּׁוֹר מוּעָד — כִּמְלוֹא עֵינָיו 

Rabbi Yitzchak said: One who saw oxen coming toward him, he interrupts his prayer, as Rav Hoshaya taught: One distances himself fifty cubits from an innocuous ox [shor tam], an ox with no history of causing damage with the intent to injure, and from a forewarned ox [shor muad], an ox whose owner was forewarned because his ox has gored three times already, one distances himself until it is beyond eyeshot.

So today we will discuss injuries from oxen and cows. But first, just what is an ox?

Just what is an ox?

The Hebrew word used in the Talmud is shor - (שור, rhymes with shore). Consider the following verse from Leviticus 22:27:

שור או כשב או עז כי יולד והיה שבעת ימים תחת אמו 

Here are some of the ways it is translated into English:

• When a bull or a goat is born, it shall be seven days under its mother... (Robert Alter. The Five Books of Moses. [Alter seems to have forgotten to translate the word כשב]).

• When an ox or a sheep or a goat is born, it shall be seven days under its mother...(S.R. Hirsch. The Pentateuch, translated into English by Isaac Levy.)

• When any of the herd, or a sheep, or a goat is brought forth, then it shall be seven days under its dam..(The Pentateuch, translated into English by M. Rosenbaum and A.M. Silberman.)

• When an ox or a sheep or a goat is born, it shall stay seven days with its mother...(The JPS Torah Commentary, ed. N. Sarna.)

• When a bullock or a sheep or a goat is brought forth, then it shall be seven days under its dam...(Koren Jerusalem Bible.)

• When a calf, a lamb or a goat is born, it is to remain with its mother for seven days...(New International Version.)

• When a bullock, or a sheep, or a goat, is brought forth, then it shall be seven days under the dam...(King James Bible)

There are more, but you get the point. The word shor (שור) has been translated as a bull, an ox, a calf, a bullock and as a collective, any of the herd.  The Koren Talmud and the Soncino Talmud translate it as ox.  The ArtScroll Schottenstein Talmud as a bull. Confused? Me too.

Here are some of The Shorter Oxford English Dictionary definitions of an ox:

1. The domestic bovine quadruped (sexually dist. as bull and cow); in common use, applied to the male castrated and used for draught purposes, or reared to serve as food.

2. Zool. Any beast of the bovine family of ruminants, including the domestic European species, the 'wild oxen' preserved in certain parks in Britain, the buffalo, bison, gaur, yak, musk-ox, etc.

In his late nineteenth century translation of the Jerusalem Talmud into French, Moise Schwab translated the word shor as "le bouef" (rather than "le teureau"). De Sola's English translation of the Mishnah, published in 1843, uses the word ox. So does the 1878 compendium by Joseph Barclay, and the first complete English translation of the Talmud, by Michael Rodkinson, published between 1896 and 1903.  The translation of shor as ox is goes back to these early translations, but the suggestion that the meaning of the word is a 'castrated male bovine quadraped' is certainly wrong. Jews are forbidden to castrate their animals, and a castrated bull would have been ineligible to use as a sacrifice. And so we must conclude that the best translation of the word shor (שור) is a bull (well done, ArtScroll!).  

The delightfully named lecturer Dr. Goodfriend from California State University recently published a lengthy paper (in this book) on the various terms for cattle in the Bible, and the question of whether a castrated bull (a gelding) could have been offered as a sacrifice in the Temple.  The good professor Goodfriend concludes that indeed the prohibition against the castration of animals "would have placed the Israelite farmer at a disadvantage as fewer suitable animals would have been available for his use." One possible way to overcome come this (other than to use cows for ploughing) would have been to import castrated bulls from those who lived outside of Israel.  

And having sorted that out, let’s turn to the fun topic of the day. Injuries from cows.

“Cow-related trauma is a common among farming communities and is a potentially serious mechanism of injury that appears to be under-reported in a hospital context. Bovine-related head-butt and trampling injuries should be considered akin to high-velocity trauma.”

— Murphy, CG. McGuire, CM. O’Malley, N. Harrington P. Cow-related trauma: A 10-year review of injuries admitted to a single institution. Injury 2010. 41: 548–550.

Injuries from Domestic bulls (and Cows too)

Mechanisms of injury from cows. From Murphy, CG. McGuire, CM. O’Malley, N. Harrington P. Cow-related trauma: A 10-year review of injuries admitted to a single institution. Injury 2010. 41: 548–550.

Much of the fourth chapter of the Talmud in Bava Kamma addresses injuries from domestic bulls and cows. In today’s page of Talmud Rabbi Yitzchak reminded the devout not to get too lost in their prayers if there are cows (or bull or oxen) in the vicinity. It turns out that they cause all kinds of injuries even today. In 2009, orthopedists from Our Lady of Lourdes Hospital in Ireland published a fascinating paper entitled Cow-related trauma: A 10-year review of injuries admitted to a single institution. Over a decade, the hospital admitted 47 people with cow related trauma, most of whom sustained their injuries from kicking (unlike matadors, who suffer from horn related injuries). And next time you feel like walking across a field containing some gentle-looking cows, remember this: one of the patients was admitted with a head injury, a hip fracture and hypothermia after being trampled on by his herd of cattle in a field and found a number of hours later. (There are no details as to whether the injury occurred during shacharit or mincha).

“If a bull be a goring bull and it is shown that he is a gorer, and he does not bind his horns, or fasten the bull, and the bull gores a free-born man and kills him, the owner shall pay one-half a mina in money. If he kills a man’s slave, he shall pay one-third of a mina.””

— Code of Hammurabi, Articles 251–252.

In another paper - Blunt Bovine and Equine Trauma - from La Crosse Lutheran Hospital in Wisconsin, researchers provided this illustrative case:

A 57-year-old male was pinned to the ground by a 2,000 pound dairy bull and repeatedly knocked to the ground forcefully at least seven times before he was able to crawl from the pen…Examination revealed the following injuries: bilateral flail chest, 13 rib fractures, bilateral hemopneumothoraces, renal contusion, two forearm fractures, left shoulder dislocation, bilateral scapula fractures, and dental alveolar fractures. The patient was treated by...mechanical ventilation for 15 days…His hospital course was complicated by Klebsiella pneumonia and at 16-month followup he remained severely dyspneic, unable to perform his usual farm work.

Cattle look gentle, and for the most part, they are.  But they are large beasts with incredible strength. Hikers, (and farmers) beware. Please pray safely.

[Partial repost from here.]

Berachot 29b ~ “Why are Sunsets Red?” asked the Rabbi and the Scientist

Photo by the Talmudology. Sunset from Clearwater Florida, Jan 29, 2020.

ברכות כט, ב

דְּאָמַר רַבִּי חִיָּיא בַּר אַבָּא אָמַר רַבִּי יוֹחָנָן: מִצְוָה לְהִתְפַּלֵּל עִם דִּמְדּוּמֵי חַמָּה. וְאָמַר רַבִּי זֵירָא: מַאי קְרָאָה — ״יִירָאוּךָ עִם שָׁמֶשׁ וְלִפְנֵי יָרֵחַ דּוֹר דּוֹרִים״

Rabbi Chiyya bar Abba said that Rabbi Yochanan said: It is a mitzva to pray with the reddening of the sun. And Rabbi Zeira said: What is the verse that alludes to this? “Let them fear You with the sun and before the moon, generation after generation” (Psalms 72:5)…

According to Rabbi Chiyya, the best time to pray is at sunrise and sunset. But why is the sun red around the time that it rises and sets? Elsewhere, the Talmud has an answer for that.

בבא בתרא פד,א

בצפרא דחלפא אבי וורדי דגן עדן בפניא דחלפא אפתחא דגיהנם – ואיכא דאמרי איפכא

In the morning it becomes red as it passes over the site of the roses of the Garden of Eden, [whose reflections give the light a red hue]. In the evening the sun turns red because it passes over the entrance of Gehenna, whose fires redden the light. And there are those who say the opposite [in explaining why the sun is red in the morning and the evening, i.e., in the morning it passes over the entrance of Gehenna, while in the evening it passes over the site of the roses of the Garden of Eden.]

The sequence above shows the setting Sun dipping toward the western horizon. As the Sun sinks lower, its color becomes more reddened. From here.

Why sunrise & sunset are red - the science

Here is the scientific explanation. At sunrise and sunset the light from the sun is not directly overhead, but from its position on the horizon it must pass through more of the atmosphere to reach our eyes, as you can see here.

From here.

You may recall that ever since Newton and his prism we have known that white light is made up of many different wavelengths, or colors of light (Figure 1 below). As the sun’s white light passes through our atmosphere, the shorter wavelengths of light are scattered (Figure 2). And the longer the path through our atmosphere, the more the shorter wavelengths of light are scattered away from the original white sun beam. All of that scattered light (Figure 3) is from the shorter, blue end of the spectrum, which is what colors the sky blue. The remaining unscattered light is at the red end of the spectrum, and that’s why the sun appears red at sunrise and sunset, and why the clouds that reflect it are colored red.

From here.

The Poet and the Scientist

Science is not the only way of understanding the world. Artists, poets, philosophers and religions all add different kinds of knowledge about the very same physical world that science explains. Science explains that a red sunrise is a result of physics. Rabbi Chiyya explained that it is because the sun reflects the red roses of the Garden of Eden. Which explanation most satisfies your mind. And which most satisfies your heart?

“In philosophy [i.e.science] one must proceed from wonder to no wonder, that is, one should continue one’s investigation until that which we thought strange no longer seems strange to us; but in theology, one must proceed from no wonder to wonder, that is…[until] that which does not seem strange to us does seem strange, and that all is wonderful.”

— Isaac Beekman. Journal tenu par Isaac Beekman de 1604 a 1634. Ed C de Waard. The Hague: M Nijhoff, 1939-53. vol 2, p375.

Berachot 28b ~ How Many Vertebrae Do We Have?

In this page of Talmud the rabbis want to know why there were originally eighteen blessings recited in the silent prayer known as the Amidah. One rabbi suggested they correspond to the eighteen mentions of God in Psalm 29. Another thought they correspond to the number of times God’s name appeared in the Shema. But a third opinion was that they do not correspond to God’s name, but to something else entirely. A feature of human anatomy:

ברכות כח, ב

אָמַר רַבִּי תַּנְחוּם אָמַר רַבִּי יְהוֹשֻׁעַ בֶּן לֵוִי: כְּנֶגֶד שְׁמוֹנֶה עֶשְׂרֵה חוּלְיוֹת שֶׁבַּשִּׁדְרָה

…Rabbi Tanchum in the name of Rabbi Yehoshua ben Levi said: They correspond to the eighteen vertebrae in the spine

Now this is all well and good, but didn’t Rabbi Tanchum know there are actually many more than eighteen vertebrae in the spine?

How many vertebraE are there in the spine?

As you can see in the colored image, there are seven cervical vertebrae, and they end at the shoulders. Below these are twelve thoracic vertebrae, that end at the hips. Then come five lumbar vertebrae, which end at the sacrum, which itself consists of five fused vertebrae. And right at the bottom of your bottom is the coccyx, also known as the tail bone, which consists of three or five fused vertebrae, depending on how you count. That’s a total of 24 individual vertebrae and at least eight more that are fused. One thing is for sure: it’s not eighteen.

So How do we get to Eighteen?

The Koren English Talmud is sensitive to this anatomical conundrum, and explains that it is the number of vertebrae “in the spine beneath the ribs.” But the twelve ribs are attached to the twelve thoracic vertebrae, which would leave either seven vertebrae (five lumbar plus a sarcrum and coccyx) or thirteen to fifteen vertebra in various degrees of fusion. But not eighteen.

Here is the explanation of the Schottenstein (ArtScroll) English Talmud:“In stating the number of vertebrae in the spine the Rabbis apparently referred only to those below the neck. This accounts for seventeen vertebrae. The identity of the eighteenth vertebra mentioned here is unclear.” But that’s not quite right either. There are nineteen (12 thoracic and 7 lumber) spine below the neck. Not eighteen. So that doesn’t work.

We get closer to a plausible explanation when we read the commentary of the ArtScroll Hebrew Talmud. Here it is, in free translation:

In the language of the Rabbis, the word “spine” (שדרה) does not include the entire vertebral column, because the vertebrae in the neck are counted separately in the Mishnah (Ohalot 1:8). The Rabbis count of eighteen vertebrae apparently includes the back [thorax], the hips [lumbar] and one additional vertebra, either in the neck or in the base of the spine…

In other words, perhaps the rabbis of the Talmud saw the division of the spine in a different way than we do today. Just because we count seven cervical vertebrae this does not mean that is the number that others before us counted. Just ask Leonardo DaVinci.

“We can see a clear progression in terms of the accuracy with which da Vinci’s anatomical drawings were developed and how his drawings were influenced by his mindset, not just as an anatomist but also as an engineer and scientist; and to some extent, by the prevailing scholastic views at that time. His anatomical depictions were clearly far ahead of their era and have served to improve our understanding of the true anatomy and function of the vertebral column and spinal cord.”

— Bowen G. Gonazales J. Iwnaga J et al. Leonardo da Vinci (1452–1519) and his depictions of the human spine. Childs Nerv Syst (2017) 33: 2067–2070.

The Spine in Leonardo’s Drawings

The way that the great anatomist Leonardo da Vinci (d. 1519) drew the spine evolved over time. In a 2017 paper on da Vinci’s depictions of the human spine, the authors note that in an early sketch “he may have used his knowledge of engineering to devise a concept that would functionally fit the movements of which the cervical spine is capable rather than trying to illustrate the exact anatomical detail.” They continue:

The vertebrae are portrayed in a rudimentary manner, many lacking a foramen to convey the neurovascular supply, an intervertebral disc, or the spinous process necessary for muscular insertion and rib articulation in the thoracic spine. It may be better to view this depiction as a conceptual illustration of how the structure accommodates its function. 

Just take a moment to count the number of vertebrae in the neck that Leonardo drew below.

That’s right. There are thirteen! That can’t be right! Because of these clear inaccuracies the authors wrote that this drawing was made prior to Leonardo’s any dissection of the anatomical region in question. (By the end of his life Leonardo claimed to have dissected thirty human bodies, as well as those of countless sheep and oxen.)

Now take a look at the drawing below, made later in Leonardo’s career, which is much more anatomically accurate. But as you can see, there is no obvious place to end the cervical vertebrae and start the thoracic. Or end the thoracic and start the lumbar. It’s just one one long beautiful anatomical structure.

Leonardo da Vinci. The vertebral column c.1510-1. Detail of the first accurate depiction of the spine in history, with its distinct sections and curvatures all correctly shown. From the Royal Collection Trust.

Leonardo suggested a division of sorts which are shown by the thin lines, one of which is labeled with the shape of a “d.” Take a look at the same Leonardo image, with the count of the number of vertebrae in between each division added.

As you can see they add up to 18 if you count the spines of the vertebrae. But there is one missing vertebrae, the very first one at the top of the neck. Take another look. See it? It is called the atlas, and its unique feature is that it has no spinous process, as you can see below:

The first vertebra, known as the atlas.

The atlas is the first of what we count as the seven cervical vertebrae. But it looks very different from the other six below it.

So if you don’t count the vertebrae without a spinous process - and it is very different from all the other (unfused) vertebrae - then you don’t need to look for the missing vertebra. It never got lost. We just started our numbering based on a different criteria. Why on earth would the rabbis have counted seven cervical vertebrae as we do, rather than six or even eight? (And yes, I know there is this Mishnah that states there are eighteen vertebrae, eight of which are in the neck: “וּשְׁמֹנֶה עֶשְׂרֵה חֻלְיוֹת בַּשִּׁדְרָה…שְׁמֹנָה בַצַּוָּאר.” But read it agin. It does not appear to be actually counting only bones.)

Leonardo’s anatomical drawings is a reminder that the human body has been seen and dissected in different ways, and Rabbi Tanchum’s count is as precise as our own. Different, but precise.

Berachot 27a ~ The Prosecution & Punishment of Animals

ברכות כז, א

רַבִּי יְהוּדָה בֶּן בָּבָא הֵעִיד חֲמִשָּׁה דְּבָרִים: …וְעַל תַּרְנְגוֹל שֶׁנִּסְקַל בִּירוּשָׁלַיִם עַל שֶׁהָרַג אֶת הַנֶּפֶשׁ

Rabbi Yehudah testified about five things… about a rooster that was stoned to death in Jerusalem for killing a person… 

This is a strange story, and Rashi adds some background. He explains that the rooster pecked at the soft part of the infant’s skull (what we call the anterior fontanelle) and that Rabbi Yehudah was teaching that the Torah law (Exodus 21:28) which requires the stoning of an ox that killed a person, applies to other animals as well. In another tractate, Bava Kammah we read about the ways in which an ox may be put on trial:

בבא קמא צ, א 
תנו רבנן שור תם שהמית והזיק דנין אותו דיני נפשות ואין דנין אותו דיני ממונות מועד שהמית והזיק דנין אותו דיני ממונות וחוזרין ודנין אותו דיני נפשות קדמו ודנוהו דיני נפשות אין חוזרין ודנין אותו דיני ממונות 

The rabbis taught: a tam ox that killed a person and inflicted damages, is tried first for the capital case and is not tried for the damages. A muad ox that killed a person and inflicted damages is tried first for the damages and is then tried for the capital case.

The notion that an animal should be tried for a crime is a completely foreign one to our modern sensibilities. Animals do not commit crimes; they act on instinct. When those instincts lead to a conflict with human society animals might be removed, or killed. But tried for a crime? Isn’t that an odd notion? Not so much, it turns out.

On the prosecution of animlas

In her review article The historical and contemporary prosecution of animals, Professor Jen Girgen noted that the formal prosecution of animals existed for centuries. Aristotle (d.322 BCE) mentioned animal trials in Athens, although there is no direct evidence of them having taken place in ancient Greece. The earliest known records of animal trials are from the mid-13th century. For example, in France in 1386, a pig was put on trial for the death of a child:

The defendant was brought before the local tribunal, and after a formal trial she was declared guilty of the crime. True to lex talionis, or "eye-for-an- eye" justice, the court sentenced the infanticidal malefactor first to be maimed in her head and upper limbs and then to be hanged. A professional hangman carried out the punishment in the public square near the city hall. The executioner, officially decreed to be a "master of high works," was issued a new pair of gloves for the occasion in order that he might come from the discharge of his duty, metaphorically at least, with clean hands, thus indicating that, as a minister of justice, he incurred no guilt in shedding blood.

In medieval times, animals were tried in two different court systems. The Church handled cases in which animals were a public nuisance (usually because they ate a farmer’s crops) while secular courts judged cases involving the physical injury or death of person.  Apparently these trials were taken seriously: “The community, at its own expense, provided the accused animals with defense counsel, and these lawyers raised complex legal arguments on behalf of the animal defendants. In criminal trials, animal defendants were sometimes detained in jail alongside human prisoners. Evidence was weighed and judgment decreed as though the defendant were human.”  Animals that faced these trials included swans, rodents, dolphins (dolphins!) grasshoppers, and, in 1713, a nest of termites, which was I suppose fair enough. The termites were munching their way through a monastery, devouring the friars' food, destroying their furniture, and even threatening to topple the walls of the monastery. 

“The ox is to be executed, not because it had committed a crime, but rather because the very act of killing a human being- voluntarily or involuntarily-had rendered it an object of public horror.
”

— JJ Finkelstein. The ox that gored. Transactions of the American Philosophical Society, Vol. 71, No. 2 (1981), pp. 1-89

The animals that faced prosecution would rarely appear in court on their trial day (because, I suppose, they had other things on their mind) so they usually lost the case by default.  Here’s a fairly typical example. In 1575 weevils were helping themselves to the vineyards in a picturesque hamlet in France, and were brought to trial:

The plaintiff and the two lawyers appointed as counsel for the beetle defendants presented their respective sides of the case…Pierre Rembaud, the beetles' newly appointed defense counsel, made a motion to dismiss the case. Rembaud argued that, according to the Book of Genesis, God had created animals before human beings and had blessed all the animals upon the earth, giving to them every green herb for food. Therefore, the weevils had a prior right to the vineyards, a right conferred upon them at the time of Creation… While the legal wrangling continued, the townspeople organized a public meeting in the town square to consider setting aside a section of land outside of the Saint Julien vineyards where the insects could obtain their needed sustenance without devouring and destroying the town's precious vineyards. They selected a site named "La Grand Feisse" and described the plot "with the exactness of a topographical survey."…However, the weevils' attorney declared that he could not accept, on behalf of his clients, the offer made by the plaintiffs. The land…was sterile and not suitable to support the needs of the weevils. The plaintiff’s attorney insisted that the land was, in fact, suitable and insisted upon adjudication in favor of the complainants. The judge decided to reserve his decision and appointed experts to examine the site and submit a written report upon the suitability of the proposed asylum.

How did this case end? We have no idea.  The last pages of the court records were (I kid you not) eaten by insects.  

The Source- our Hebrew Bible

The impetus for all this, according to historians, was our own Hebrew Bible, or more precisely, the passage from Exodus 21:28.

וְכִי-יִגַּח שׁוֹר אֶת-אִישׁ אוֹ אֶת-אִשָּׁה, וָמֵת סָקוֹל יִסָּקֵל הַשּׁוֹר, וְלֹא יֵאָכֵל אֶת-בְּשָׂרוֹ, וּבַעַל הַשּׁוֹר, נָקִי

"If a bull gores a man or woman to death, the bull is to be stoned to death, and its meat must not be eaten. But the owner of the bull will not be held responsible.

The Jewish scholar Bernard Jackson, (who seems to have spent his entire career studying the legal history of the goring ox,) noted this connection.  “The stoning of the goring ox”, he wrote, 

… may well have been the parent, rather than the child, of the idea of divine punishment of animals .... [O]nce the concept of divine punishment of animals became established, it could then be transferred back to the legal sphere as a primarily penal notion.

What sense can we make of these medieval trials – and what sense can be made of the earlier Talmudic law that also placed animals on trial for their actions? Girgen suggests a number of possible ways to explain these trials, which seem to have become increasingly popular in the middle ages. 

1. Rehabilitation of the offending animal. This is not a satisfying explanation, since “these proceedings usually ended with the execution of the animal.” That left little opportunity for rehabilitation.

2. Retribution, which is another word for revenge. Indeed, this is precisely the notion reflected in the biblical law of “an eye for an eye”- although of course that was not the way the rabbis of the Talmud interpreted the verse. Under Roman law, the Torah law of עין תחת עין was called lex talionis – the law of retaliation. This need to retaliate was, according to Justice Oliver Wendell Holmes, a key feature of early legal systems, which were “…grounded in vengeance.”

3. Revenue for the king. This would only explain cases in which the animal was impounded or confiscated from the owner and given over to the king or local lord. But this did not happen when the animal was executed – which apparently was a frequent outcome of these trials.

4. The elimination of a social danger. Now, this begins to sound familiar. In the US and other western countries, vicious dogs are, after all, put down, and when this happens we breathe a collective sigh of relief. So by sentencing a dangerous animal to death, the courts were making life safer for everyone else.

5. Deterrence – that is, “to dissuade would-be criminals - both animal and human-from engaging in similar offensive acts”. As the legal scholar Nicholas Humphrey noted, "if word got around about what happened to the last pig that ate a human child, might not other pigs have been persuaded to think twice?” That implies endowing animals with an agency that we would consider today to be quite fanciful. So perhaps the deterrent effect was not aimed at other animals, but rather at other humans – deterring them from committing these kinds of horrible crimes.

6. Establishing control in a disorderly world. Perhaps these trials were a search for order in a world of chaos. “Just as today,” wrote Professor Humphries “when things are unexplained, we expect the institutions of science to put the facts on trial ... the whole purpose of the legal actions was to establish cognitive control.". The good professor continues:

What the Greeks and mediaeval Europeans had in common was a deep fear of lawlessness: not so much fear of laws being contravened, as the much worse fear that the world they lived in might not be a lawful place at all. A statue fell on a man out of the blue; a pig killed a baby while its mother was at Mass; swarms of locusts appeared from nowhere and devastated the crops .... To an extent that we today cannot find easy to conceive, these people of the pre-scientific era lived every day at the edge of explanatory darkness.

By defining events as crimes rather than as natural occurrences, they could be placed within a legal context – and controlled. The late JJ Finkelstein of Yale University (d. 1974) wrote one of the most detailed studies of the ox that gored (called, rather unimaginatively, The Ox that Gored). On page 24 of his 86-page essay he addressed this aspect:

[T]he "crime" of the ox that gored a person to death is not just to be found in the fact that it had "committed homicide.". . .The real crime of the ox is that by killing a human being-whether out of viciousness or by an involuntary motion, it has objectively committed a de facto insurrection against the hierarchic order established by Creation.

Trials of animals in more recent Times

Animal trials continued well into the twentieth century. In 1906 in Switzerland a dog was sentenced to death for killing a man, while his masters – who had used the dog to help them rob the man - were sentenced to life in prison. In 1924, Pep, a Labrador retriever, was accused of killing Pennsylvania Governor Gifford Pinchot's cat. 

The dog was tried (without the assistance of counsel) in a proceeding led by the Governor himself. Governor Pinchot found Pep responsible for the cat's death and sentenced the dog to life imprisonment in the Philadelphia State Penitentiary. Pep died of old age, still incarcerated, six years later… And in 1927, a dog was reportedly tried and incarcerated by a Connecticut justice of the peace for "worrying the cat of a neighbor lady.”

In fact, “trials” of dangerous animals continue to this day. Depending on where you live, a judge may rule an animal to be dangerous if it has attacked others, and may order it destroyed.  This is what happened in New Jersey in 1991, when Taro, a 110 lb Japanese Akita dog was sentenced to death by a judge in Bergen County, after it had apparently attacked its owner’s niece. Taro’s owner appealed the verdict and the dog remained on death row for three years, until the order to execute the dog was upheld.  That’s when newly elected Governor Christin Todd Whitman issued an executive order and reprieved the dog, which by now had been imprisoned for more than one thousand days at a cost to the state of more than $100,000. Taro was exiled from New Jersey, and died in her sleep five years later. 

What do we talk about when we talk about punishment?

What is it that we want to see happen when we call for a criminal to be “punished”?  This simple question has been answered by legal scholars and judges who have written about theories of punishment, but we knew little about what the average citizen wants to see happen when a punishment is imposed. 

In a series of experiments published in 2002, psychologists from Princeton and Northwestern University studied the motivation underlying use of punishment in a group of students; that is to say, in people with no special legal training or background. What are the motives of ordinary people when they wish to punish a criminal? (Ok, they weren’t exactly “ordinary people, since they were Princeton University students, but still…)The two specific motives they contrasted were just deserts and deterrence. The “just desserts” theory is the belief that when punishing a criminal, our concerns should not be about future outcomes like rehabilitation, but rather about providing a punishment appropriate for the given crime. “Although it is certainly preferable that the punishment serve a secondary function of inhibiting future harmdoing, its justification lies in righting a wrong, not in achieving some future benefit. The central precept of just deserts theory is that the punishment be proportionate to the harm.”  So what motivates the theory of punishment in ordinary people? Does it come from a deservingness perspective, in which the focus is on atoning for the harm committed, or from a utilitarian, deterrence perspective, in which the focus is on preventing future harms against society? 

The psychologists found that in sentencing hypothetical criminal perpetrators, their student subjects responded to factors associated with the “just deserts theory” and ignored those associated with deterrence. This desire to see a criminal get his just desserts is also found when animals are put on trial.  More recent work by the psychologists Geoffrey Goodwin and Adam Benforado also addressed the way in which we view punishment as retribution.  They asked volunteers (found on-line using something called Amazon's Mechanical Turk interface) about a number of different scenarios in which animals had killed or injured people. In five different studies the results demonstrated "...clear evidence for the existence of retributive motives and for a broader conception of the viable targets of retribution."

Back to the goring ox

In the view of J.J. Finkelstein, the Yale scholar, “the system of categorization reflected in the biblical statement of the laws of the goring ox is essentially the same as our own… the cosmic apprehension of the biblical authors, the way in which the Bible perceives and classifies the world of experience, is in every fundamental respect identical with ours, that is, with that of the civilization we usually describe as "Western.” Once we understand that animal trials were not just an interesting quirk mentioned in today’s page of Talmud, but were – and still are - a common part of the judicial process, Finkelstein’s claim view is entirely plausible.  This, together with the insights from the field of psychology about what motivates people to punish others, leads us to a remarkable conclusion.  Moderns, like those before us, seek to punish, not to rehabilitate the criminal or deter others from committing a crime, but because the criminal “deserves to be punished”. It matters not one bit if that criminal is a human, a dog, or an insect. Or even a chicken. 

[A repost from here.]