Sanhedrin 15

Sanhedrin 15b ~ Where the Wild Things Are

The opening Mishnah of Sanhedrin, way back on page 2a, lists the number of judges required for various kinds of legal cases, one of which is an animal that killed a person.

סנהדרין ב, א

הַזְּאֵב וְהָאֲרִי, הַדּוֹב וְהַנָּמֵר וְהַבַּרְדְּלָס וְהַנָּחָשׁ – מִיתָתָן בְּעֶשְׂרִים וּשְׁלֹשָׁה. רַבִּי אֱלִיעֶזֶר אוֹמֵר: כל הַקּוֹדֵם לְהוֹרְגָן זָכָה. רַבִּי עֲקִיבָא אוֹמֵר: מִיתָתָן בְּעֶשְׂרִים וּשְׁלֹשָׁה

A wolf or a lion, a bear or a leopard, or a cheetah, or a snake that killed a person: Their death is decreed by twenty-three judges. Rabbi Eliezer says these dangerous animals do not need to be brought to court; rather, anyone who kills them first merits the performance of a mitzva. Rabbi Akiva says: Their death is decreed by twenty-three judges.

This Mishnah is further analyzed in today’s daf, in a dispute between Resh Lakish and his brother-in-law Rabbi Yochanan:

סנהדרין טו, ב

הָאֲרִי וְהַזְּאֵב כּוּ׳. אָמַר רֵישׁ לָקִישׁ: וְהוּא שֶׁהֵמִיתוּ, אֲבָל לֹא הֵמִיתוּ – לָא. אַלְמָא קָסָבַר: יֵשׁ לָהֶן תַּרְבּוּת וְיֵשׁ לָהֶן בְּעָלִים. רַבִּי יוֹחָנָן אָמַר: אַף עַל פִּי שֶׁלֹּא הֵמִיתוּ. אַלְמָא קָסָבַר: אֵין לָהֶם תַּרְבּוּת וְאֵין לָהֶם בְּעָלִים.

The Mishnah had recorded a dispute with regard to the judgment of a lion and or a wolf: Does this judgment require twenty-three judges? Reish Lakish says: And that dispute concerns a lion or wolf that has killed a person. But if they have not killed, then no, they may not be executed. [Apparently, Reish Lakish holds that they have the capability of being tamed and domesticated, and consequently they might have owners, so it is not permitted to kill them without due cause.] And Rabbi Yochanan says: The dispute applies even if they have not killed. [Apparently, Rabbi Yochanan holds that they do not have the capability of being tamed, and therefore they do not have owners.]

According to Resh Lakish, a wild animal can be tamed, and therefore it is forbidden to kill them under normal circumstances (hunters and trappers, please note). But Rabbi Yochanan was more concerned about the dangers a wild animal could, one day, perhaps pose. He therefore allowed them to be killed wherever they are encountered (hunters and trappers, please note).

In that Mishnah on 2a, Rabbi Eliezer ruled that a wild animal that killed a person need not be judged by a court - anyone can (or perhaps should) kill it as soon as possible: “רַבִּי אֱלִיעֶזֶר אוֹמֵר: כל הַקּוֹדֵם לְהוֹרְגָן זָכָה.”

But Rabbi Eliezer was not trigger happy when it came to wild animals. He believed that they could be tamed and therefore be safe (ish) to be around. Here is a Mishnah in Bava Kamma, where Rabbi Eliezer expanded on his thoughts about whether wild animals can ever be tamed (as Resh Lakish also believed).

 בבא קמא טו,ב

הזאב והארי והדוב והנמר והברדלס והנחש הרי אלו מועדין רבי אלעזר אומר בזמן שהן בני תרבות אינן מועדין והנחש מועד לעולם

The the wolf, the lion, the bear, the leopard, the bardalis and the snake are considered to be forewarned [so that if they cause damage their owner must pay in full].  R. Eleazar says: if they have been tamed, they are not forewarned; the snake, however, is always forewarned.

So today, let’s talk about….

Wild Animals gone...Wild

In July 2012, while touring a hospital in Johannesburg, I was given a brutal reminder of the dangers posed by the wild animals we were about to see on safari. In the Intensive Care unit and fighting for his life was a young American named Andrew Oberle, who had come to South Africa to study the chimps. Oberle, a twenty-six year old student, had left the group he was guiding and entered a 'no-go' zone. Two chimps interpreted this as an act of aggression, grabbed the young American, and dragged him into their enclosure. By the time he was finally rescued, Oberline had suffered these injuries

The chimps tore away his scalp down to the skull. His ears and nose are gone, and he can’t close his right eye. He has wounds on his trunk and all four limbs. He’s lost most of his fingers, and his right forearm has been eaten, the tendons gone. He’s lost parts of his feet, and his right ankle is destroyed.

(Oberle survived his attack, and in December 2017 he talked about it on a podcast which you can listen to here.)

Then there was bear enthusiast Timothy Treadwell (who later became the subject of an excellent 2005 documentary by Werner Herzog).  Treadwell was a self-described bear conservationist, although he lacked any formal training in the field and was frequently at odds with the Park Service. In October 2003, Treadwell and his girlfriend were mauled and eaten by a Grizzly bear in Alaska's Katmai National Park. Thus far, two examples of wild animals acting, well, wild.  

What about training these wild animals to perform tricks?  Well, there's a cautionary tale in that, too. Do you recall the great illusionists Siegfried Fischbacher and Roy Horn, the pair of magicians who became world famous for their performances with white lions? For over thirteen years Siegfried and Roy performed at the Mirage Hotel in Las Vegas, until um, they stopped. On October 3, 2003 Roy was bitten in the neck by a seven year old tiger named Manticore, who dragged him off the stage "like a ragdoll." He almost bled to death, and remains partially paralyzed as a result of the attack.  So how could Rabbi Eleazar possibly claim that animals as wild as a lion or a bear ever be considered tame or domesticated? Well, read on...

Domestication

The Encyclopaedia Britannica defines domestication as

the process of hereditary reorganization of wild animals and plants into domestic and cultivated forms according to the interests of people. In its strictest sense, it refers to the initial stage of human mastery of wild animals and plants. The fundamental distinction of domesticated animals and plants from their wild ancestors is that they are created by human labour to meet specific requirements or whims and are adapted to the conditions of continuous care and solicitude people maintain for them.

Thus we speak of domesticated horses and wild horses, domesticated bees and wild bees, and domesticated plants -(think tobacco, and corn)- and wild plants. What turns a species from a wild to a domesticated form is human patience and careful breeding. But the late professor of anthropology Charles Reed (d. 2000) wrote that many animals are naturally tame - or at least not afraid of human contact:

Among these are manatees, who may not even move aside as one swim among them; sea-otters, from whom one can take the young without any defense by the mother; various basking seals, elephant-seals and sea-lions, among whom (other than the males in breeding season) one can walk unconcerned, and whose young, if they've lost their mothers, will follow any human hoping to be fed; various of the porpoises and dolphins, who seem to have no fear of man, and even the great whales.

Can Wolves be Tamed?

The Mishnah we cited from Bava Kamma 15b stated that six species of animal can never be relied upon to have been domesticated. One of these is the wolf, which seems kind of reasonable, even allowing for the fact that our dogs are descended from them.  But wolves have also been successfully raised as family pets, (though you should probably check with your spouse before bringing home a wolf cub for the family). "Actually" wrote Charles Reed, "wolf pups reared as a group in Alaskan isolation or a single pup brought up with children and dogs in an urban family are wonderfully affectionate, social, dynamic, interesting, and of course intelligent fellow citizens." Which sounds rather like the opinion of Rabbi Eleazar, who believed that wolves, (and bears, lions and leopards) may be tamed so successfully that they end up about as aggressive as domestic goats.

Wild animals ain’t so wild, as shown again by a wild-caught penned wolverine in Alaska, which, within a few days of capture, was taking food from the hand...when the hand was empty, the wolverine gently, with its incisor teeth, held the lady’s fingertips without braking the skin.
— Charles A. Reed. Wild Animals Ain't So Wild, Domesticating Them Not So Difficult. Expedition 1986. 28 (2) 8-15.

A Pet Grizzly Bear called ben franklin

In the Mishnah in Bava Kamma Rabbi Eleazar spoke not only of a tame wolf - but of a tame bear.  While our modern sensibilities would be outraged at the notion of raising a wild bear as a pet, these sensibilities are, to be sure, modern indeed. In a charming article published in the American Naturalist in 1886, John Caton described the domestication of the grizzly bear. Just to remind you- a small grizzly bear weights 400 pounds and stands about six and a half feet tall. Now read on:

Among others he [a certain James Adams] fairly domesticated quite a number of the grizzly bear (Ursus ferox Lewis and Clark) with complete success. This is the largest and fiercest known of all the species, and it might be expected the most intractable or unsubmissive to human control, yet such appears not to have been the case.

The first specimens experimented with were two cubs, over a year old when caught, taken in Washington Territory, between Lewis and Clark's fork of the Columbia. They were brother and sister; the latter was retained by Adams, and his experiments were principally conducted on her, which he called " Lady Washington." She seems to have been the more tractable and submissive. The male he parted with to a friend, after he had received but the rudiments of his education. At first they were chained to trees near the camp-fire, and resisted all attempts at familiarity and kindness; then severity was adopted, until they finally submitted.

Soon after the male was parted with, and we have no account of his subsequent career. The female was always after treated with the utmost kindness, and in a few months became as tractable as a dog. She followed her master in his hunting excursions, fought for him with other grizzlies, and saved him from the greatest perils.

She slept at his feet around the camp-fire, and took the place of a most vigilant watch-dog. He taught her to carry burdens with the docility of a mule, and as she grew up her great strength enabled her to render him great assistance in this way.

Another bear of the same species he captured in the Sierras in California before its eyes were open, and raised it on a greyhound bitch in company with her own pup. This he called Ben Franklin, and proved more docile even than the first. He never found it necessary to confine in any way this specimen, but he was allowed to roam and hunt with his foster brother, the grayhound [sic]. They were inseparable companions, and seemed to have as much affection for each other as if they had been of the same species, Before he was full-grown, when his master was attacked by a wounded grizzly, he joined in the fight with such ferocity as to save his master's life, and though he was severely wounded in this contest, with careful nursing he survived, and ever after showed as much courage in attacking his own species as if he had not met with this severe punishment.

I know what you are thinking: grizzly bears are found only in North America, but bears in Israel were a species of the brown bear called Ursus arctos syriacus, or the Syrian Brown Bear. Well that's true, but it's not only grizzly bears that make cuddly pets; the same owner of Ben Franklin, the pet grizzly, also kept black bears (and who knows, perhaps brown ones too):

He found the black bear, when raised in camp, as readily domesticated as the grizzly, and as fond of his society, following him about the camp and through the woods with fidelity and attachment.

So there we have it. Evidence to support Rabbi Eleazar's opinion that many wild animals may become as domesticated as a dog or cat. But in today’s daf, Rabbi Eliezer clarifies that once these animals become a danger, domesticated or not, they are not given a second chance. So best to stick with dogs and cats as pets.  They take up far less space than the enormous, though very cute, grizzly bear.

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Zevachim 70b ~ The Prosecution (& Punishment) of Animals

Tractate Zevachim addresses the laws of sacrifices. Chapter eight, which we started learning today, opens with the case of a group of animals awaiting sacrifice that became intermingled with an identical animal that is forbidden to sacrifice. That causes a major problem:

 כל הזבחים שנתערבו בחטאות המתות או בשור הנסקל אפילו אחת בריבוא ימותו כולן נתערבו בשור שנעבדה בו עבירה או

MISHNA: All the offerings that were intermingled with animals from which deriving benefit is forbidden... for example an ox that was sentenced to be stoned, even if the ratio is one in ten thousand, deriving benefit from them all is prohibited and they all must die...

Sentencing an animal to death? Putting animals on trial? That's quite a concept. We have discussed this before, when learning Sanhedrin and Bava Kamma. But that was a year ago, so let's remind ourselves of the odd judicial notion of putting animals on trial for their alleged crimes.

סנהדרין טו, א

 שור הנסקל בעשרים ושלשה: שנא' השור יסקל וגם בעליו יומת כמיתת הבעלים כך מיתת השור

An ox that may be punished with stoning is tried by a court of twenty-three judges: As it is stated "the ox shall be stoned and its owner shall be put to death" (Ex. 21:29). The juxtaposition teaches that in the manner in which the owner is put to death, so too is the ox put to death.  

In Sanhedrin, the case of an ox that sodomizes a person is discussed. The bovine in question stands trial, and if found guilty is executed. We have already encountered the trial of oxen in another context, that time concerning an ox that gored a person to death:

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 ANIMALS

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, Or SODOMIZING 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.  

[Repost from Bava Kamma 90a]

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