Shiluach HaKan, The Complexities of Compassion, and the Evils of Terrorism

It seems so simple, so why is it so complicated? The commandment in this week’s Torah reading to send away the mother bird when taking its eggs (Deut. 22:6-7) is, on the surface, an understandable directive. It is, after all, the compassionate thing to do: why should the mother be taken at the same time as her children? At the least spare one generation, just as the Torah commands that a cow and her baby calf not be slaughtered in the same day, a measure designed to prevent the hardening of cruel attitudes towards the animals. Indeed, Nachmanides explicitly links the two commandments (as do Ibn Ezra, Chizkuni, and others). Maimonides, in his Guide to the Perplexed (3:48) confirms it: this is a commandment about compassion (see also Sefer HaChinukh, 555, and Resp. Chacham Tzvi, 26). The matter, it seems, is settled.

However, it is not that simple. First, there are those who disagree, or, in fact, say the opposite. The Gaon of Vilna was quoted as saying that the mother actually feels anguish upon being sent away when her children are being taken. And yet, for some reason, beyond our understanding, we are nonetheless commanded to do so.

Beyond that, there are the practical details that should be straightforward, but have become mired in disputes. If indeed the mother is sent away as an expression of compassion, it would seem obvious that there is no reason to do so if one has no actual interest in taking her eggs (see Sha’arei Deah, YD 292:4). Indeed, rules the Chatam Sofer (Resp., OC, 100): such an action would be simple cruelty, and should not be done: “instead of learning how not to be cruel, on the contrary, we will train ourselves in cruelty and needless anguish to animals!”. His position was echoed by many others (including Dor Rvi’i to Chulin; Netziv in Meromei Sadeh and Heamek Davar; Torah Temimah, #68; Chazon Ish, YD 175).

However, there were those who took a different position and maintained that the mother should be sent away by anyone who encounters the nest, regardless of whether or not that individual had any interest in the eggs. This opinion too has many adherents, including those who seek out opportunities to fulfill this commandment completely for its own sake, with some believing there is a particular spiritual promise associated with its performance.
The position dates back to the Resp. Chavot Yair (#67), who in turn cited the Zohar. The sight of the mother forced to fly in circles above her children becomes an evocative image reflecting the picture of Israel in exile. Through this depiction, the hope is that God’s mercy will be roused and expressed towards His people.

These two distinctly different understandings of this commandment, completely divergent from each other, were hotly debated and remain the subject of controversy today. (For extensive discussions see: Minchat Asher al HaTorah, Deut. 40; Beit Matityahu, Chulin 33; Resp. Even Yisrael, VII, 43; and especially Resp. HaBari V’HaShema, IV, pp. 663-768).
But no source on this topic is more confounding than the mishnah (Berakhot 33b and Megillah 25a), which seems to directly squelch any effort to portray this commandment as compassionate. “One who recites [in his supplication] ‘Your mercy is extended to a bird’s nest’…they silence him.” This is an exceedingly difficult passage to understand. What could possibly be objectionable about such a statement? Did not King David himself make a declaration of this sort when he stated, “and His mercy is on all of His creations (Ps. 145:9)”?
The writings of Maimonides on this point guide us into perplexity, as he both codifies the ruling of the mishnah (Hil. Tefilah 9:6) and, as noted, asserts the commandment as compassionate in purpose.

Reconciling these seemingly incompatible positions requires a combination of approaches. One possibility, as Maimonides himself notes in the Guide, is that there is simply a multiplicity of opinions and attitudes on the subject. The statement of the mishnah may reflect a perspective that is not necessarily the dominant one.

Beyond that, it is likely that many things are true at once. The commandment to send away the mother bird is indeed about, and in service of, compassion. And yet, for one to include this phrasing in a personal appeal to God, invoking that fact as a form of argument, it is a dangerous distortion.

The Talmud provides two explanations for the objection to the inclusion of this phrase, in the names of Rabbi Yosei bar Avin and Rabbi Yosei bar Zevida; “he transforms the attributes of the Holy One, Blessed be He, into expressions of mercy, when they are only decrees of the King”. The other is “he engenders jealousy among God’s creations.” Neither statement is immediately understandable. Are other animals watching to see how we speak about birds? And even more significantly, is there indeed something amiss about believing that God’s commandments are directed towards compassion?

The message of compassion seems to be a highly nuanced one. First and foremost, the attribute of compassion is central to Jewish identity. The Talmud tells us that it is one of the defining attributes that identifies a descendant of Abraham. Abraham himself refines his own compassion through emulating God, the Merciful One, whose own compassion is the trait identified by the Rabbis as the primary focus of imitatio Dei, the mandate to walk in the path of the Divine. It is indisputable that being suffused with compassion is a primary call of Judaism, and a backdrop to the commandments in their totality (see Mishneh Torah, Hil. Shabbat, 2:3) and many of them in specific.

Nonetheless, it is also true that compassion is a complex emotion, one that can overwhelm rationality and can also make its possessor subject to manipulation by others. It can be true at once that the Torah can repeatedly command compassion, mandate behaviors that are designed to inculcate compassion, and yet also guard against the distortions that can at times surface.

Both of the Talmud’s explanations reflect aspects of this concern. There is, of course, nothing untoward with identifying compassion within God’s attributes and in the commandments He bestows upon His people. However, consider the context in which one may include this reference in a prayer: “Almighty, you are compassionate to birds – clearly You are powerless in the face of Your attribute of mercy. You have no choice but to have pity on me as well.”
A formulation such as this not only misunderstands God, it misunderstands the attribute of mercy as well. God is not controlled by the attribute, forced into action he deems inappropriate because he cannot do otherwise. Rather He chooses to express mercy because of its objective value and appropriateness in each circumstance. (See Yad HaMelekh, and Minchat Asher).

So too, the humans who emulate God are to seek to incorporate a comparable mercy—not one that can blind or distract. Such pitfalls exist; for example, in the vein of the warning of the Rabbis that “he who is merciful on the cruel will ultimately be cruel to the merciful.” Divine mercy, the attribute of grace that balances harsh justice with fairness and responsiveness to suffering, is the model for humans as well.

What does it mean to “arouse jealousy among creations?” It is a magnificent quality to extend one’s compassion so far that it reaches the smallest creatures. However, there is always the risk that the visibility of such extraordinary reach will make these acts a disproportionate priority. The temptation to reap the credit of kindness of this sort often stands in the way of other acts of kindness, which may scream louder and yet inexplicably be rendered inaudible. The performative becomes the priority. “You express your compassion upon the birds”, asks all of creation, including the neediest and the closest to us; “but what about us?”
Rational people are concerned about big things before small things. Great people are concerned about big things and small things. The danger becomes when we are concerned about small things at the expense of big things.

This risk is present at all times, as the complexities of life abound and confound. It is especially acute during times of war, when the innate compassion of the Jewish soul is forced to reside in bodies compelled to defend themselves, their families, and their nation’s very existence. What damage will the extremities of war wreak upon this precious attribute, and what impediment will that attribute place upon the necessary demands of survival?
The commandment to send away the mother bird, like all the dictates of the Torah, contains multitudes. Its themes and messages are many, some apparent and some perhaps counterintuitive. Yet, again like all commandments, it presents itself first as an action, a behavior that molds character sublimely and subconsciously. Beyond that, we are asked to speculate, to investigate, and to deepen our encounter with its content and to enhance its impact (see Hil. Temurah 4:13). But we dare not declare too confidently or absolutely that we have grasped its message entirely, for therein lies folly.

There is an additional theme that has been identified within this commandment, which resonates powerfully in the current moment. There are some who suggest (see Mishneh Torah Hil. Shechitah 13:7 and Ohr Sameach; Heamek Davar; Oznayim LaTorah) that the Torah in issuing this directive is focused not on the compassionate instinct of the human, but of the mother bird. Her reflex upon seeing her children being taken will be to spread her wings in their protection. The human may consider this an opportunity. The mother is now vulnerable, not focused on her own defense; she can be taken as well! To exploit the attribute of compassion, warns the Torah, is disgraceful behavior. It may be legitimate to gather birds or eggs for personal use. But to do so through taking advantage of the animal’s innate mercy, and turning it against them, is the antithesis of Jewish character.

The nation of Israel is currently locked in existential combat with a vicious terrorist organization. That group is evil not only because of its brutality, but because of the damage it seeks to do to the very system of morality itself. The exploitation of the instinct towards decency and kindness through the utilization of human shields, exaggerated and falsified propaganda, holocaust inversion, and the deliberate manufacturing of global condemnation, represents an assault on the idea of righteousness.

The mother bird is indeed a symbol of compassion: where it should be expressed; how it should be internalized; why it must be balanced; and perhaps most importantly, how it must be forever respected, preserved, and protected.