Rabbi Shimon’s Logic and the Sanhedrin That Might Be And More Chulin 81-82

Chulin 80 — “Rabbi Shimon’s Logic and the Sanhedrin That Might Be”

Our Gemara on this daf discussed the concept that a ritual slaughter which is unable to accomplish its purpose is considered a null act and has no implications. For example, if one slaughters a tereifa or an animal that is forbidden to benefit from (such as one convicted of killing a human), since the slaughtering did not accomplish its ultimate purpose of rendering the meat permitted to eat, this slaughtering has no ritual effect whatsoever. The difference being, there would be no requirement to cover its blood, if it were the kind of animal that normally would require it, and also the mother or child could be slaughtered on the same day and eaten because the first slaughter was not really valid. This is the opinion of Rabbi Shimon.

Rabbi Shimon is known throughout Shas for a number of trademark opinions. This is one of them. Another famous opinion of his is regarding an unintentional act, which under many circumstances is permitted, such as dragging a chair on the ground, even though it could make a furrow (Beitzah 23a).

And the most famous of Rabbi Shimon’s opinions is that he will infer the implied logical reason for a commandment, and therefore use that reason to allow for exceptions when it runs against the apparent logic.

For example, the Gemara (Bava Metzia 115a) discusses the prohibition (Devarim 24:17) “Do not take the cloak of a widow as collateral.”

Presumably, this commandment is to protect and have compassion over a widow who tends to be economically vulnerable and impoverished. (The Gemara actually develops this further. Since there is an additional command to return required collaterals when needed, he will end up frequenting her house, leading to rumors of impropriety.) What about a wealthy widow? Rabbi Yehuda holds there is no exception, as the law applies from generalities. Rabbi Shimon uses the apparent logic that this is a safety net for a poor widow, therefore it does not apply to a wealthy widow.

Rav Cohen (the “Nazir,” Kol Nevuah 147) notes that this is a key philosophical and psychological outlook of Rabbi Shimon. The mitzvos are evaluated in terms of their essence. Slaughtering is only meaningful if it accomplishes the purpose of enabling the food to be kosher to eat, an action is only sinful if intended, and globally, any commandment’s specific laws can be induced from its apparent meaning and function.

We do not rule in accordance with Rabbi Shimon. It is important to digest that Rabbi Shimon’s Torah would be a different universe. Effectively, according to him, the Sanhedrin would be empowered to deduce new laws from their implications in the same manner that they darshen verses. Just as an example, the Gemara Niddah (31b) states:

“Rabbi Meir would say: For what reason does the Torah say that a menstruating woman is prohibited from engaging in intercourse with her husband for seven days? It is because if a woman were permitted to engage in intercourse with her husband all the time, her husband would be too accustomed to her, and would eventually be repulsed by her. Therefore, the Torah says that a menstruating woman shall be ritually impure for seven days, during which she is prohibited from engaging in intercourse with her husband, so that when she becomes pure again she will be dear to her husband as at the time when she entered the wedding canopy with him.”

Would Rabbi Shimon’s Sanhedrin therefore be lenient with a woman who had a disease and suffered from constant staining, because the purpose of the commandment to enhance love is being thwarted? Or the reverse, if medically, such as via hormones or IUD, a woman does not menstruate, should they still practice some separation? Indeed, Rabbi Shimon’s Torah and his Sanhedrin could have made a very different Judaism! Keep in mind though, even according to Rabbi Shimon, it would not be willy-nilly. Each circumstance would require a rabbinic ruling much as the Gemara uses Kal v’chomer and other derivations to create rulings. It still requires a careful judicial process. Nevertheless, the potential and implications are staggering. Allow me to explain:

Rav Kook (Moreh Nevuchei Hador 13) suggests a procedure for a messianic future that can grapple with many of the halachic conundrums that we face in the modern world. The classic rabbinic position, especially in reaction and resistance to Reform or Conservative theologies that suggest we update the Torah, is to double down and declare the Torah is divine and perfect and needs no modification. While of course this is true, and we humbly accept mitzvos and commandments even when we do not understand them, the Sanhedrin did have the power in the past to make certain adjustments. (See Yevamos 89b-90b.)

If the future Sanhedrin would rule in accordance with Rabbi Shimon, who holds that one may deduce a reason for a commandment and then base halachic rulings upon the deduced reason, then many laws could be changed. For example, consider the rule that a woman is disqualified from serving as a witness, as a judge, and even for prayers in a minyan. If the logical deductive reason for the rules can be ascertained, such as the rigors and responsibilities of pregnancy, childbirth, and childcare making such obligations an unfair burden, then in a more technologically advanced post-industrial modern society the rules could be re-evaluated. Because according to Rabbi Shimon, if there is an obvious deducible reason for a commandment, different exceptions to the Halacha can be applied. Of course such a Sanhedrin also might conclude that the Torah had other reasons and see no need to make a change, but in theory, this would be no different than, as we saw earlier in this essay, that Rabbi Shimon allowed a person to take a security from a wealthy widow even though the verse did not specify such an exemption.

I stress again that this would not be an action done on a whim by a sole rabbi, but rather a responsible, measured rabbinical process and response from a fully empowered Sanhedrin. As they say, “do not attempt this at home.”.

Why does this matter? It matters because some people subjectively experience certain commandments as unfair and not attuned to modern life. For the moment, it doesn’t matter whether this subjective experience is correct. After all, each of us might have personal reasons why a particular commandment does not seem fair, but God in His wisdom knows better. At the same time, it is hard to think that with all the changes in the modern world, certain ideas also might not affect the way we experience mitzvos. And, while we can appreciate the wisdom and caution that the majority of the rabbinic community took, fearing a groundswell of reform or conservative sentiment that would lead to people rejecting the laws of the Torah and its wisdom over modern fads and reactions, a global answer that every single thing is to remain the same is not satisfying to many people. Rav Kook offered an intelligent, respectful and rational alternative to this challenge. Even though at this point there is no Sanhedrin nor a Messiah, it allows a person to feel that the Torah, in principle, could be accommodating to certain needs or changes that legitimately come from changes in society or circumstances.

Chulin 81 — If it Suffers Like a Duck, Then it’s a Duck

Our Gemara on Amud Beis discusses a case where one performs an act of killing an animal, but not a kosher shechitta. In such a case, since it’s not a true shechitta, if this was a child or mother of an animal slaughtered on the same day, he would not be liable. The text of the Mishna is:

“All agree that one who slaughters an animal and it becomes a carcass by his hand because the slaughter was invalid, or one who stabs an animal, or one who uproots the windpipe and the gullet, is exempt with regard to the prohibition against slaughtering a mother and its offspring.”

There is a famous Teshuva of the Noda BeYehuda (YD II:10) who rules that though hunting for sport is not an activity for a “nice Jewish boy,” as it is a frivolous waste of time, it is not a violation of tzaar baalei chaim (causing animals to suffer). His reasoning is, if killing an animal was a violation we wouldn’t be allowed to eat them either. So killing, per se, is not necessarily inducing suffering, as long as it is done in a relatively quick and painless manner.

However, Tosafos Rabbi Akiva Eiger on this Mishna makes an interesting deduction from the text. He notes the Mishna is careful to say, “He is exempt with regard to the prohibition against slaughtering a mother and its offspring,” as if to say, technically he is exempt from this. However he still is liable for causing the animal to suffer. This indicates that Rabbi Akiva Eiger may disagree with the Noda BeYehuda. What could be the basis of distinction in the argument?

Perhaps Rabbi Akiva Eiger holds that the idea of slaughtering is not an assurance that the animal does not suffer, rather it is a Torah-granted method that permits the slaughter and consumption of food. True, it might minimize suffering, but who’s to say the animal doesn’t actually suffer? Clearly, animals sense when they’re about to be slaughtered and are afraid of it. We even have a famous Gemara (Bava Metzia 85a) where Rabbi Yehuda Hanasi suffered a divine punishment for not showing mercy on a calf that was being led to slaughter and tried to hide under his cloak.

So according to Rabbi Akiva Eiger, animals suffer in all forms of death – the Torah just sanctions it. The Torah sanctions other suffering when necessary, such as capital and corporal punishment. However, the Noda BeYehuda found it to be untenable nor acceptable that on a daily basis, the consumption of meat would be allowed for expedience, if it caused animals to suffer.

These two points of view are substantial, psychologically and philosophically. You might say that Rabbi Akiva Eiger sees the Torah world as more black and white, in a sense that animal suffering is just not important if God decrees it to serve a function. After all, in the totality of world events, there is suffering constantly for all kinds of reasons. Does that make God cruel? Of course not! He designed the world in a certain way where loss and suffering is a part of the physical experience. We might not like it, but the overall wisdom of allowing for entropy and deterioration of physical matter makes existence possible. If change never happened, we wouldn’t be able to think or grow or have a free will. It is the very allowance of change which also automatically invites entropy and chaos. One plus One has to equal two.

On the other hand, the Noda BeYehuda takes a different stance. Quite simply, if it walks like a duck and quacks like a duck, it’s a duck. Similarly, if it suffers like a duck, then it is suffering like a duck. There is no way that on a constant mass consumer basis, the Torah would sanction such suffering, and therefore we must presume that a slaughter is so instantaneous and quick that the animal does not suffer at all. And therefore, any type of quick death would not be a violation of animal suffering.

We can relate this dispute to the famous dispute between Rambam and Ramban regarding the teaching in the Gemara (Megillah 25a) that we silence a chazan who praises God for having mercy on the mother bird. The simple reading of this is that the commandments are not there and do not need to make sense because of small, subjective human concerns. Animals do not have enough intelligence to even suffer. It’s a slippery slope to see the mitzvos as a function of God’s mercy, because many commandments indeed do cause suffering, as we noted earlier. Rather, Ramban (Devarim 22:6) argued that the commandment to have mercy on the mother bird is not for the mother bird, but rather to teach humans compassion, and preclude developing in them cruelty and apathy to apparent suffering. However, Rambam (Moreh Nevuchim III:48), despite this Gemara which he sees as aggadic hyperbole, says obviously the reason for this commandment is to protect the bird from suffering. Further, he maintains since emotions are not a part of intellect, an animal’s emotions are the same as a human’s. In fact, he says the mother bird suffers a loss of its offspring in the same way that a human mother would suffer the loss of her offspring, and the pain is no different.

Looking at it this way, we can say that Rabbi Akiva Eiger follows the Ramban’s school of thought. Even though in a general sense, the laws of the Torah might teach compassion, any specific rule may override that. It’s not that the animal doesn’t suffer, but rather it’s permitted in that circumstance. The Noda BeYehuda follows the Rambam’s school of thought. If the animal looks like it is suffering, then it is, and quite obviously that matters to the Torah. Therefore, any type of killing that is not quick, is a violation, but we can deduce from the permissibility of slaughter, that quick killing is allowed.