Rabbi Shimon’s Logic and the Sanhedrin That Might Be

Chulin – Daf 80

Our Gemara on this daf discusses 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 treifah or an animal that it 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 is there would be no requirement to cover its blood (if it were the kind of animal that normally would require it), and also that the mother or child could be slaughtered on the same day and eaten because the first slaughter was not in fact 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 regards 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).

The most famous of Rabbi Shimon’s opinions is that he will infer the implied logical reason for a commandment, and then use that reason to allow for exceptions when it runs against the apparent logic. For example, the Gemara (Bava Metzia 115a) discusses the prohibition “Do not take the cloak of a widow as collateral” (Devarim 24:17).

Presumably, this commandment is to protect and have compassion for a widow who tends to be economically vulnerable and impoverished. (The Gemara actually develops this issue further. Since there is an additional command to return required collaterals when needed, the lender will end up frequenting the widow’s house, leading to rumors of impropriety.) What about a wealthy widow? Rabbi Yehuda holds that 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, and that 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 meaningful only 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 deduced 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 that Rabbi Meir offered a reason for the prohibition of husband and wife to be together while she is a niddah – so that they do not become too accustomed to each other and allow their ardor for each other to increase.

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 an IUD, a woman does not menstruate, should they still practice some separation? Indeed, Rabbi Shimon’s Torah and his Sanhedrin could have made for a very different Judaism. Keep in mind, though, that even according to Rabbi Shimon, the halacha 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, 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. This is 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, Rabbi Shimon allowing a person to take collateral 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, “Don’t try this at home.”

Why does all 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 G-d 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 and no 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.

If it Suffers Like a Duck, Then It’s a Duck

Daf 81

Our Gemara on amud beis discusses a case where one performs an act of killing an animal, but not a kosher shechita. In such a case, since it’s not a true shechita, 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 (Y.D. 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 were a violation, we wouldn’t be allowed to eat them either. So, killing, per se, does not necessarily induce 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 every form of death – the Torah just sanctions it for food purposes. The Torah sanctions other suffering when necessary, such as capital and corporal punishment. However, the Noda BeYehuda found it to be untenable and unacceptable 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 G-d decrees it to serve a function. After all, in the totality of world events, there is constantly suffering for all kinds of reasons. Does that make G-d cruel? Of course not! He designed the world in a certain way where loss and suffering are 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 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 chazzan who praises G-d 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 G-d’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 that obviously the reason for this commandment is to protect the bird from suffering. Further, he maintains that 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 that such is 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.