JUDAISM’S LESSONS IN BEASTLY MORALITY
Mark Goldfeder
ON DECEMBER 2, 2013, THE Nonhuman Rights Project (NhRP), a national nonprofit organization working to get actual legal rights for members of nonhuman species, filed a lawsuit in Fulton County, New York, petitioning the judges for a writ of habeas corpus.1 Habeas corpus allows for a person being held captive to be brought before a court to determine if the imprisonment is lawful. Habeas corpus suits are filed all the time; what made this one historic was that it was not filed for a human being. The writ in question asked the court to formally recognize that a twenty-six-year-old chimpanzee named Tommy was a person, and thereby possessed the legal right not to be bodily detained against his will.2 One day later, the NhRP filed a similar suit in Niagara Falls, and two days after that a third one on Long Island.
All three lawsuits failed, with all three judges declining to sign the order.3 One judge held a hearing to explain that while he is indeed an animal lover, he just could not apply NY Code, Article 70: Habeas Corpus to a chimpanzee.4 Another judge, on a phone hearing, was sympathetic to the cause but did not want to “be the one to make that leap of faith.”5 Still, regardless of the outcome, the reasoning behind the lawsuit is quite simple: the NhRP and its supporters believe that the line between “persons” and “nonpersons” should not be as sharply drawn as it is now. They believe that the current division is artificial and superficial, a line that focuses on microscopic differences in DNA rather than on important and meaningful characteristics, qualities, and emotions that species other than humans might well share.
Although this idea might seem somewhat radical at first glance, from a moral/philosophical perspective these arguments are not that novel. Animal rights and line-drawing have long been a contemplative problem for great thinkers and legal theorists.6 For many, at least in theory it actually seems almost illogical to deny a complex, autonomous, self-aware creature, capable of communicating its desires, the ability to live as it wishes simply because it looks different. In the words of philosopher Rosalind Hursthouse, for instance:
Speciesism . . . is just like . . . racism. Racists think that, for instance, the death or enslavement of someone of their own race matters, but that the death or enslavement of someone of a different race does not, despite the fact that a difference in skin colour does not make for a difference in how much one wants to live or be free, or how worthwhile one’s life might be, or anything else relevant. Similarly, . . . a speciesist [thinks] that the death or enslavement of a member of their own species matter[s], but that the death or enslavement of a member of a different species . . . d[oes] not, despite the (imagined) fact that the difference in species does not make for a difference in how much the two beings want to live or be free, or how worthwhile their lives might be.7
For lawyers, like Steven Wise, the issues are fairly simple and straightforward. What the question boils down to is not whether animals are “human”; they are not, and there is nothing wrong with that. The question is really about whether nonhuman beings can be “legal persons,” entitled to some or all human rights. Legal personality makes no claims about sentience, empathy, or even vitality; to have legal personality is simply to be capable of having rights and duties.8 As Kess demonstrates in chapter 1 of this volume, American courts have long held that the answer to the question of whether nonhuman beings can be legal persons is, at least in some instances, yes.9 In fact, the Supreme Court in Burwell v. Hobby Lobby just affirmed that in some instances nonhuman “persons” (in this case corporations) should be entitled to religious legal rights and protections.10 For lawyers, then, who only need to look at the bottom line, the question of whether a nonhuman entity can have personhood is simple and decided. For philosophers, however, the question is harder, as we approach the line of moral personhood—i.e., actual humanity—instead of just a legal status with a conveniently appropriated name.
But whether we are talking about corporations or animals,11 and whether we are contemplating granting legal or moral personhood, the idea of moving a well-established line requires a fundamental shift in perspective. In dealing with such a weighty issue, central to our own understanding of the world, it makes sense to at least consider what religion might have to say about the matter, particularly if to see whether the line we take for granted might in fact be only one of many options. This essay will not attempt to answer that question for all religions; it will focus only on Jewish law and lore. It also does not claim to represent the only strain of thought in Judaism or the definitive interpretation of the law; it merely sets out to revisit some of the ancient Judaic texts and understandings, and explore an authentic reading of what this tradition has to say on the subject of nonhuman “persons.”
THE CONCEPT OF moral personhood would seem to hinge on the ability to be a moral actor. The idea of divine retribution (i.e., reward and punishment in all its different facets, in both this world and the world to come) is a central tenet of Jewish faith. It is intricately connected to the idea of free will, and the ability to choose rationally between morally acceptable and unacceptable behaviors. Put bluntly: choose well and God will reward you; choose poorly and you will be punished. Those who cannot actually choose their own course of behavior for whatever reason have neither moral responsibility nor culpability; as non-moral actors, they can be neither rewarded nor punished for their actions or inactions.
It has long been assumed that the ability to assess situations and make conscious moral choices is a characteristic unique to mankind. The Bible states that a unique feature of man is his God-like moral intelligence, lada’at tov vara (literally, “to know good and evil”)—i.e., to differentiate between right and wrong. In the Midrash Genesis Rabbah, the Talmudic sage Rabbi Akiva famously links this concept with free will, and in the Middle Ages the Jewish law codifier Maimonides closed the circle, noting that man is the only creature who resembles God in that he has free will.12 Yet, is this circle rightfully closed? In light of recent findings, including the work of Frans B. M. de Waal and the research of Steven M. Wise,13 which shed light on the moral behavior and ethical choices found in the animal kingdom, this essay revisits and explores Judaism’s position on animal morality and argues that perhaps that circle is not as unbroken as it might seem.
OUR EXPLORATION STARTS with the idea of animals as divinely ordained creations, formed in God’s wisdom and as part of His ineffable plan. Man, for his part, needs both to know and to respect that. The Bible makes specific mention of the moral lessons that man should learn from the other members of the animal kingdom.14 The Talmud also expands upon these instances. Rabbi Yochanan said: “If the Torah had not been given we could have learnt modesty from the cat, honesty from the ant, chastity from the dove, and good manners from the cock who first coaxes and then mates.” There is an entire kabbalistic book dedicated to the subject of how the creatures of creation praise God every day, and as the Midrash Genesis Rabbah notes, oftentimes God performs his wondrous actions through the agency of animals.15 We can accept the premise then that from a Jewish perspective, animals do perform what we might think of as good—and even noteworthy—deeds.
Jewish law responds by giving animals some rights. A person is not allowed to kill an animal, for instance, unless it is for legitimate human purposes. When an animal kills a person, such as in the case of the murderous ox, the Talmud notes that the Torah took pity on the animal, and made it very hard to prosecute him. In fact, in order to sentence an animal to death, we need the testimony of witnesses and a high court of twenty-three judges. This is the same standard required by the Talmud in any human capital case. By requiring a searching examination before killing an ox, the Torah demonstrates the severity of this matter. More, it suggests that animals are legitimate agents seen by the law to have the right not to be summarily executed without due process.16
Humans are not allowed to cause animals pain. Maimonides, in particular, makes it very clear that animals feel not only physical but also emotional pain:
It is likewise forbidden to slaughter [an animal] and its young on the same day, this being a precautionary measure in order to avoid slaughtering the young animal in front of its mother. For in these cases animals feel very great pain, there being no difference regarding this pain between man and the other animals. For the love and the tenderness of a mother for her child is not consequent upon reason, but upon the activity of the imaginative faculty, which is found in most animals just as it is found in man.17
Similarly, Nachmanides, an influential medieval authority, adds that animals sometimes even make behavioral choices based upon their feelings,18 giving further credence to the idea of animals as being not only capable of feeling emotion but also emotional actors.
Lest one think that the choices animals make are just simple reactions, not based upon intelligent consideration, the Talmud relays several stories about animals making real, conscious decisions. There is, for example, the famous tale of Rabbi Phinehas ben Yair’s donkey:
R. Phinehas happened to come to a certain inn. They placed barley before his ass, but it would not eat. It was sifted, but the ass would not eat it. It was carefully picked; still the ass would not eat it. “Perhaps,” suggested R. Phinehas, “it is not tithed?” It was at once tithed, and the ass ate it. He, thereupon, exclaimed, “This poor creature is about to do the will of the Creator, and you would feed it with untithed produce!”19
It seems that this donkey—and maybe even all donkeys—behaved according to choices between righteous and unrighteous, between good and bad. If divine reward and punishment are based on the making of moral choices and if animals do in fact make good choices, it follows that they are eligible for divine reward and punishment.
Indeed, even the Bible hints that this is the case. On the very last night of their enslavement, when the Jewish people were getting ready for the Exodus from Egypt, the Egyptian houses were full of the cries of families bereft of their firstborns. At midnight, however, at a time when one would expect the animals to join in the howl, they did not; out of respect for the children of Israel, no dog moved its tongue. Later in the Bible, dogs are mentioned again: the nation is told that if an animal is slaughtered improperly and is therefore not kosher, they should not throw the meat away, but rather lakelev tashlichun oto (literally, “ye shall cast it to the dogs”). The midrash20 informs us of the underlying reason:
Scripture says: “Ye shall not eat of anything that dieth of itself; thou mayest give it unto the stranger that is within thy gates. . . .” Hence, what must Scripture mean by saying: “Ye shall cast it to the dogs”? To the dogs and to such as are like dogs. . . . This is to teach you that the Holy One, blessed be He, does not withhold the reward of any creature.21
That verse and rabbinic explanation are an excellent starting point for the question of beastly morality and just reward, but are not entirely satisfying in and of themselves. Here is why. In general Jewish philosophy, the discussions revolving around reward and punishment usually focus on life after death, i.e., reward and punishment in the world to come. And so the next question that we have to ask is, Do animals have souls that endure beyond physical death?
Rabbi Moshe Chaim Luzzato (commonly referred to as “Ramchal”), an influential kabbalist and philosopher of the eighteenth century,22 wrote that animals do in fact have souls. Ramchal asserted that “one type of soul [nefesh] that man has is the same that exists in all living creatures. It is this [animal] soul that is responsible for man’s natural feelings and intelligence.”23
If animals do have souls, then one would expect them to receive reward in the next world for the things they have done in this world. The canonic responsa literature, during the period of Jewish masters known as the Gaonim (scholars of a period roughly from the sixth to the eleventh centuries),24 provides such an opinion. With regard to animals that die for good (i.e., legitimate) reasons, Rabbi Sherira Gaon, writing in the tenth century, explicitly states, “We are of the opinion that all living creatures, the slaughtering and killing of which God has permitted, have a reward, which they may expect.”25 This implies that animals have notions of futurity akin to humans insofar as they too conceive of futures beyond physical demise.
Bringing us back full circle, a set of midrashim attributed to Rabbi Akiva—the same Talmudic Rabbi Akiva of the first century who linked reward and punishment to free will—goes one step further than the Geonim.26 The midrash tells us that animals will even have the ultimate reward: they will participate and be included in the eventual resurrection of the dead.
When God renews His world, He himself takes charge of the work of renewal. He arranges all the regulations of the last ones, those of the future world . . . the order of each and every generation, of every being, of every animal, and of every bird. . . . I have caused all human beings and all creatures to die in this world, and I shall restore their spirit and soul to them and revive them in the World to Come.27
Considering the amount of literature in the Jewish textual tradition on the concept of human morality and divine reward and punishment, it seems rather odd that if animals make the same kinds of choices as humans, though perhaps of a different sort or degree, we would have to rely on an obscure reference to make the case that they too share in reaping rewards in the hereafter. More information on the process of rewarding animals is necessary to understand the concept of beastly morality under Jewish law. The remainder of this essay focuses on that mystery and attempts to answer the question of the great textual lacuna on beastly morality.
WE START BY noting that the line between humans and animals was not as clear-cut in ancient (rabbinic) times as it is now. Throughout the discussions in rabbinic literature, we encounter part-human and part-animal beings, such as mermaids and other monsters.28 The rabbis, as legal theorists, not scientists, were more interested in how to classify such creatures than in whether these creatures actually existed. From their statements and rulings across the Babylonian Talmud, the Jerusalem Talmud, and the midrashic lore, one can get a sense of the criteria that they used in determining what exactly it was that gave a creature that elusive title we tend to call—for lack of a better word—humanity, with the accompanying rights and benefits.
Jewish law recognizes some of the classic tests of humanity such as biology, moral intelligence and communicative ability, free will, and so on. However, I will argue here that it is the shifting contextual/functionality test of humanity, as developed in the Jerusalem Talmud, that is the origin of our obligations to certain animals above and beyond our general obligation not to harm nonhuman life for no reason—and indeed our fundamental understanding of animals in general. If animals display human characteristics—if they look human, or act human in some meaningful cognitive way—they deserve not only human rights but also mutual respect. From a Jewish law perspective, they are, in fact, at some level, “human.”29 That might explain the dearth of specifically animal-focused discussions of morality and compensation; if animals are displaying what we might at first call beastly morality, then perhaps according to Jewish law they have by definition already crossed or started crossing the line into humanity.
There are several places throughout the Bible and the Talmud where humans are referred to as yelud isha (literally, “those born of woman”). In describing Eve, the Targum Onkelos, an early and influential commentary, notes that the verse refers to her as “the mother of all humanity,” because she, Eve, is the progenitor of mankind; anyone born from Eve or her descendants is considered part of mankind. This seems to argue for a traditional speciesist definition, and some Jewish law authorities have taken that definition to be authoritative fact.30
One story from the Talmud, which tells us how a rabbi created a “golem,” a humanoid automaton, seems to support such a reading:
Rab[bah] said: If the righteous desired it, they could be creators, for it is written. But your iniquities have distinguished between [you and your God]. Rabbah created a man, and sent him to R. Zera. R. Zera spoke to him, but received no answer. Thereupon he said unto him: “Thou art a creature of the magicians. Return to thy dust.”31
The fact that Rabbi Zera destroyed the golem tells us at least one fundamental thing: “killing” this golem was not considered murder. Why? Because—according to traditional argument—humanity is defined as having been born from a woman, no matter how similar to humanity something looks. While several rabbinic decisors do agree that this is the working definition, they also add some important points. The first is that because humanity is species driven, no human, no matter how many abnormalities or deficiencies, mental or physical, loses the status of personhood. Similarly, miscarried fetuses are human for the purpose of mourning and burial. This leads us to a startling conclusion: if humanity is species driven, as descendants of Eve, then even according to traditional Judeo-Christian sources, humans are descended from nonhuman animals, as Adam and Eve were in no sense of the words “born of woman.”32
And yet this “born of woman” technicality cannot be the definition of humanity under Jewish law, or halacha. Halacha is meant to address reality on the ground, and so what happens when we are introduced to a creature that for all intents and purposes looks and acts human, but according to our definition is not? Would anyone feel comfortable telling children who were formed in vitro, or who finished their development in an artificial incubator, that they are not fully human and are therefore not entitled to their basic human rights?
The simple answer is to retain the speciesist argument and redefine “born of woman” to mean just having human DNA; the biblical usage of that phraseology may have been a simple way of referring to the usual method of possessing precise human biological specifications, but not necessarily the only one. I suggest that this is not the case, and that indeed halacha has developed an alternative proposition for humanity, one that has important relevance for any discussion of animals. This is based upon a fascinating discussion of tractate Niddah of the Jerusalem Talmud.
Rabbi Yasa states in the name of Rabbi Yochanan: “If [a creature] has a human body but its face is of an animal, it is not human; if [a creature] has an animal body, but its [face is] human, it is human.” This would indicate that when the simple definition does not apply, one examines the creature for “human” features, specifically, a human visage. However, the Talmud continues:
Yet suppose it is entirely human, but its face is animal like, and it is learning Torah? Can one say to it “come and be slaughtered?” [Rather one cannot]. Or consider if it is entirely animal like, but its face human, and it is plowing the field [acting like an animal] do we come and say to it, “come and perform levirate marriage [yibum] and divorce [chalitza]?” [Rather, one cannot.]
The [T]almudic conclusion seems to be simple. Sometimes, when dealing with a “creature” that does not conform to the simple definition of humanness—borne from a human mother—one examines context to determine if it is human. Does it study Torah (differential equations would do fine for this purpose, too) or is it at the pulling end of a plow?33
According to the Talmud, when we cannot apply the biological definition of a human—which may in fact still be the general default definition for the status of personhood—then we apply the contextual definition of a human if it fits. This lends additional support to the idea that a genetically engineered person, even one fully incubated artificially, would be human, as it would have both human attributes and abilities and would behave as humans do. But it also means that great apes, bonobos, and all other primates who sign, communicate, and interact like people meet the contextual definition insofar as they do as humans do, and thus in theory might in some cases be considered people, not animals, by halacha.
While this is the central tenet here, it is also important to point out that there are other possible definitions of halachic humanity, although it is unclear if these are definitions or more aptly descriptive features of humanity. One is the moral intelligence test, based on the verse in Genesis lada’at tov vara (literally, “to know [differentiate] between good and evil”). As noted above, Rabbi Akiva famously links this notion with free will, and Maimonides claims that what makes man special is that he is the only creature who resembles God in that he has free will.34 If Maimonides is right, and if animals have the will to make moral choices, then animals are people too, according to halacha.
Others have wanted to classify speech as a possible halachic criterion for humanity, but that raises some age-old considerations; a human who cannot speak is still human, and there are in fact animals, ranging from gorillas to parrots, that can both communicate and speak. This is not just a modern phenomenon that began with Alex, the African Grey parrot; the Babylonian Talmud notes that a certain Rabbi Illish met a man who understood the language of birds, and King Solomon was famously able to converse with some animals.35
Since we are not willing to give or take away a status of personhood solely on the basis of sounds or motions, the idea of speech, or more generally communication, must be linked to a concept. When we talk about speech as a characteristic of humanity, it means the ability not just to know but to express the differentiation between good and evil. This may not be a separate definition at all, but rather just a description or a test for knowledge of moral intelligence. Or it might be a description or test for our contextual/functional lens—i.e., does this animal behave, contextually, like a human being, exhibiting what we would think of as clearly human intelligence? For instance, does the animal speak? Does the animal communicate, and have knowledge? In all of these ways, at least some animals are “human.”36
This idea is not far-fetched. The truth is that the early rabbis, although they did not have bonobos who could sign, did deal with what they felt were border cases of humanity. The classic example is a Mishnah in tractate Kilayim, which discusses the creature called adnei hasadeh, also known as a yadua. While the rabbinic descriptions are terse, the creature seems much like Bigfoot; the influential medieval scholar Rabbi Shlomo Yitzchaki, in his commentary on Job, describes the creature as having the form of a man while really being an animal of the field. Maimonides, however, in describing this creature, notes that its speech is similar to a human’s, but is unintelligible. Most importantly, he refers to it in his commentary on the Mishnah as al nasnas, which is in fact an Arabic word for “monkey.” The Tiferet Yisrael explicitly provides that these sources refer to what we call an orangutan.37
The Talmud quotes two opinions as to whether or not, from a Jewish law standpoint, we are dealing with humans here. It is, however, unclear if the two positions are in conflict, with one saying yes and one saying no, or if the status is simply that these beings are somewhere in between—i.e., everyone agrees that for some things they are considered human and for other things they are not. According to at least some important commentators, however, this creature is a full human being. The Jerusalem Talmud in fact refers to it as a bar nosh d’tor (literally, a “mountain man”). Presumably, this fits our earlier definition, also from the Jerusalem Talmud: contextually this creature exhibits characteristics that make it seem human, and therefore it is human. What we see clearly from the discussion of the adnei hasadeh is that just as we established before, humanness need not be defined solely with reference to a human parent; it may also be defined by a clear, independent functionality test. Either is sufficient to make one human according to Jewish law.38
While acknowledging that the Jewish tradition is quite expansive and subject to various interpretations, given the evidence presented in this essay, we find that Judaism’s teachings are in fact quite compatible with a broader and deeper understanding of beastly morality. From the biblical comment that we have much to learn from the ways of the animal kingdom to the ancient text of Perek Shira (describing, in part, the ways in which animals serve and praise God in nature), the notion that animals have the potential for morality has long been part of the Judaic tradition, and the idea has found resonance in a variety of specific areas within Jewish thought. Philosophically speaking, Nachmanides’s assertion that animals do have some form of free will coincides nicely with the numerous statements throughout the Talmud and the Midrash that involve animals receiving their punishments and just rewards. Theologically, the Gaonic responsa asserting that animals receive recompense in the afterlife for their worldly afflictions and efforts makes sense given the stories in the Talmud of righteous animals separating tithes, and sheds light on the basis for the Midrash that has them taking part in the Great Resurrection. Practically speaking, the biblical ox that is put on trial by a panel of twenty-three judges demonstrates the weight that the concept of animal morality is given in the legal arena.39
In conclusion, if there does seem to be a disproportionately small amount of literature on the subject of beastly morality, perhaps it is because Judaism already had a broader and deeper understanding of what it means to be practically human.
On the basis of the Jerusalem Talmud’s contextual definition of humanity, it is quite possible that some of the morally responsible subjects of Professor de Waal’s and Professor Wise’s research were already—from a Jewish perspective—more human than not, with many of the associated rights, duties, privileges, and expectations.
NOTES
1. Parts of this article have appeared in the Global Journal of Animal Law (http://www.gjal.abo.fi/?page=get_issue&id=2013-02), and much of the material comes from a piece first published in Animal Law 20, no. 1 [2013]).
2. See Brandon Keim, “A Chimp’s Day in Court: Inside the Historic Demand for Nonhuman Rights,” Wired, December 6, 2013, http://www.wired.com/2013/12/chimpanzee-personhood-nonhuman-right/.
3. The NhRP quickly announced that it was expecting this and that it would appeal. See http://www.nonhumanrightsproject.org/2013/12/10/press-release-on-ny-judges-decisions/ for the NhRP press release on the matter.
4. Statements of Judge Joseph Sise, Fulton County Court. See Brandon Keim, “Judge Rules Chimps Can’t Be Legal Persons but Activists Vow to Fight On,” Wired, December 9, 2013, http://www.wired.com/wiredscience/2013/12/chimpanzee-personhood-claims-denied/.
5. Ibid.
6. Scott Wilson, “Animals and Ethics,” Internet Encyclopedia of Philosophy (2010), http://www.iep.utm.edu/anim-eth/; see Tom Regan, The Case for Animal Rights (Netherlands: Springer, 1987).
7. Rosalind Hursthouse, Beginning Lives (Oxford: Blackwell’s, 1987), 102–3.
8. See Bryant Smith, “Legal Personality,” Yale Law Journal 37, no. 3 (1928): 283–99.
9. Peter A. French, “The Corporation as a Moral Person,” American Philosophical Quarterly 16, no. 3 (1979): 207–15.
10. Burwell v. Hobby Lobby, 573 U.S. ___ (2014); see Katie McDonough, “Can a Corporation Have a Religion?: Hobby Lobby Challenge to Contraception Mandate Heads to Supreme Court,” Salon, November 25, 2013, http://www.salon.com/2013/11/25/can_a_corporation_have_a_religion_hobby_lobby_challenge_to_contraception_mandate_heads_to_supreme_court/.
11. See, generally, Michael D. Riard, “Toward a General Theory of Constitutional Personhood: A Theory of Constitutional Personhood for Transgenic Humanoid Species,” UCLA L. Rev. 39 (1991): 1425.
12. Genesis Rabbah: The Judaic Commentary to the Book of Genesis, A New American Translation, vol. 1, 21:5, 233, trans. Jacob Neusner (Atlanta: Scholars Press, 1985) [hereinafter Genesis Rabbah]; Maimonides, Mishneh Torah 5:1, 41, trans. Philip Birnbaum (New York: Hebrew Publishing Company, 1967).
13. Frans de Waal, The Bonobo and the Atheist: In Search of Humanism among the Primates (New York: Norton, 2013); Steven M. Wise, Rattling the Cage: Toward Legal Rights for Animals (Cambridge, MA: Perseus Books Group, 2000).
14. Psalms 104:24 (King James Version of the Bible, hereafter King James); see Rabbi Moshe Cordovero, Tomer Devorah [The Palm Tree of Deborah], trans. Moshe Miller (Southfield, MI: Targum Press, 1993), 50 (stating that just as God “sustains all creatures . . . so, too, should man do good to all, not despising any creature”). E.g., Proverbs 6:6 (KJV) (“Go to the ant, thou sluggard; consider her ways and be wise”).
15. Rabbi Dr. I. Epstein, ed. and trans., The Babylonian Talmud, vol. 2, Erubin 100b, 698, (London: Soncino Press, 1948). See Malachi Beit-Arié, Perek Shira: Songs of Praise for the Creator (Jerusalem: Jewish National and University Library, 1990) (ascribing songs to land animals, winged creatures, insects, and residents of the waters, all of which praise their Creator). See Genesis Rabbah, 10:7 (“Even things that you regard as completely superfluous to the creation of the world, for instance, fleas, gnats, and flies, also fall into the classification of things that were part of the creation of the world. . . . And the Holy One, blessed be he, carries out his purposes even with a snake, scorpion, gnat, or frog”).
16. See Commentary of Rema to Shulchan Aruch Even Haezer 5:14 (discussing legitimate purposes, e.g., medical purposes); see also Nachmanides, Commentary on the Torah: Leviticus 17:11, trans. Charles B. Chavel (New York: Shilo Publishing House, 1974) (discussing the same). See Exodus 21:28 (King James) (“If an ox gore a man or a woman, that they die: then the ox shall be surely stoned, and his flesh shall not be eaten; but the owner of the ox shall be quit”); Jacob Schachter and H. Freedman, trans., The Babylonian Talmud, vol. 1, Sanhedrin 55a, 375 (New York: Rebecca Bennet Publications, 1959); Commentary of Rashi to Babylonian Talmud Sanhedrin, 55a; Sefer HaChinuch (the unwarranted killing of an animal, i.e., killing an animal for illegitimate human purposes, is rated as bloodshed that is only a little less severe than killing a person); see also Schachter and Freedman, The Babylonian Talmud, vol. 1, Sanhedrin 2a, 2 (“The ox to be stoned is tried by twenty-three. . . . The death sentence on the wolf or the lion or the bear or the leopard or the hyena or the serpent is to be passed by twenty-three,” and “Capital cases are adjudicated by twenty-three”). For more on religions and animals in courts, see Bathgate (chapter 10) and Crane and Gross (chapter 12) in this volume.
17. Maimonides, The Guide of the Perplexed, pt. 3, ch. 48, trans. Shlomo Pines (Chicago: University of Chicago Press, 1963), 599 (emphasis omitted).
18. Nachmanides, Commentary on the Torah: Bereishis/Genesis 1:29.
19. Rabbi Epstein, The Babylonian Talmud, vol. 2, Chullin 7a–b.
20. Exodus 11:5–6; 11:7; 22:31 (King James). A midrash is “an ancient Jewish exposition of a passage of the scriptures.” Philip Babcock Gove, ed., Webster’s Third New International Dictionary (Springfield, MA: Merriam-Webster, 1993), 1431.
21. Jacob Z. Lauterbach, trans., Mekhilta de-Rabbi Ishmael, 2d ed., vol. 2, Kaspa, ch. 2, 466 (Philadelphia: Jewish Publication Society, 2004).
22. See Dan Cohn-Sherbok, The Dictionary of Jewish Biography (London: Continuum, 2005), 187 (describing Ramchal as an Italian kabbalist and philosopher); see also Samuel J. Levine, “Further Reflections on the Role of Religion in Lawyering and in Life,” Regent University Law Review 11, no. 31 (1998–1999): 34 (describing Ramchal as a great eighteenth-century ethicist).
23. Moshe Chaim Luzzatto, The Way of God, pt. 3, 1:1, trans. Aryeh Kaplan, 6th rev. ed. (Jerusalem: Feldheim Publishers, 1996).
24. George Horowitz, The Spirit of Jewish Law: A Brief Account of Biblical and Rabbinical Jurisprudence with a Special Note on Jewish Law and the State of Israel (New York: Central Book Company, 1953), 40–42.
25. Rabbi Natan Slifkin, Man and Beast: Our Relationships with Animals in Jewish Law and Thought (Israel: Zoo Torah, 2006), 114 (quoting Rabbi Sherira Gaon, Teshuvos HaGeonim no. 375).
26. Cohn-Sherbok, The Dictionary of Jewish Biography, 8; see Genesis Rabbah, 21:6 (discussing Rabbi Akiva’s linkage of reward and punishment to free will).
27. Slifkin, Man and Beast, 71 n. 1 (quoting Osiyos D’Rabbi Akiva, Os aleph).
28. See Rabbi Natan Slifkin, Sacred Monsters: Mysterious and Mythical Creatures of Scripture, Talmud and Midrash (Israel: Zoo Torah, 2007), 19 (discussing references to mystical creatures present throughout Jewish literature); see also The Book of Jasher 61:15 (J. H. Parry, 1887), accessed November 16, 2013, http://www.ccel.org/a/anonymous/jasher [http://perma.cc/BXA6-LL2U] (“Zepho . . . came into the cave and he looked and behold, a large animal was devouring the ox; from the middle upward it resembled a man, and from the middle downward it resembled an animal”).
29. See below, Jerusalem Talmud, Niddah 3:2. See Babylonian Talmud, Baba Mezi’a 31a, for a discussion of man’s duty toward animals generally; see also Rabbi Dr. Asher Meir, “Animal Suffering: The Jewish View,” Virtual Jerusalem, August 25, 2013, accessed November 16, 2013, http://www.virtualjerusalem.com/judaism.php?Itemid=10453 [http://perma.cc/0uwkvjpTeZ1] (discussing that, according to the Babylonian Talmud, Baba Mezi’a 31a, the reference to “unloading” pack animals in Exodus 23:5 is one source for the prohibition of animal suffering). See Rabbi Michael J. Broyde, “Cloning People and Jewish Law: A Preliminary Analysis,” pt. III(D), Jewish Law, accessed November 16, 2013, http://www.jlaw.com/Articles/cloning.html [[http://perma.cc/0oQEWj29WjC], (asserting that “humanness” is not dependent on intelligence, and noting the ambiguity in categorizing something as “animal” or “human”).
30. See, e.g., Job 14:1 (King James) (“Man that is born of a woman . . .” [emphasis omitted]). See also Rabbi Epstein, The Babylonian Talmud, vol. 3, Yoma 75b, 698 (London: Soncino Press, 1948) (“[F]or is there one born of woman”). Israel Drazin, Targum Onkelos to Deuteronomy 1 (New York: KTAV Publishing House, 1982); Rabbi A. M. Silbermann and Rev. M. Rosenbaum, trans., Targum Onkelos Commentary to Genesis 3:20 (Jerusalem: Silbermann Fam., 1934); Responsa Chacham Tzvi 93; see Rabbi Michael J. Broyde, “Genetically Engineering People: A Jewish Law Analysis of Personhood,” St. Thomas L. Rev. 13, no. 2 (2001): 890 (noting that, while there are different interpretations as to what makes one human, some groups adopt the “from a human mother” formulation as the exclusive definition of humanness).
31. Schachter and Freedman, The Babylonian Talmud, vol. 1, Sanhedrin 65b, 446.
32. See, e.g., Moshe Cordovero, Pardes Rimonim [Orchard of Pomegranates], ch. 24, § 10 (discussing killing a “golem”); Rabbi Avraham Azulai, Chessed LeAvraham, Maayan Revi’i nahar 30 (discussing the same). See also Shut Teshuva Me’ahava 1:53; Chazon Ish YD. 118:4, Chida, Birkei Yosef Even HaEzer 4:8; Sidrei Taharot, Oho lot 5a.
33. Broyde, “Cloning People and Jewish Law,” pt. 3 (D) (quoting the Jerusalem Talmud, Niddah 3:2).
34. Genesis 3:22 (King James); “Commentary of Rashi to Genesis 3:22,” Chabad.org, accessed November 16, 2013, http://www.chabad.org/library/bible_cdo/aid/8167showrashi=true [http://perma.cc/0przpHMGcxc]; Genesis Rabbah, 21:7; Maimonides, Mishneh Torah, 5:1, 41–42.
35. See Steven M. Wise, Drawing the Line: Science and the Case for Animal Rights (Cambridge, MA: Perseus Books Group, 2002), 87–91 (describing the author’s interaction with Alex and Alex’s ability to speak and identify colors and sounds); Maurice Simon, trans., The Babylonian Talmud, vol. 1, Gittin 45a, 198 (New York: Rebecca Bennet Publications, 1959); Midrash Tanhuma B, Mavo; Ruth Rabbah 1:17; Eccl. Rabbah 2:25.
36. In our modern world of widespread corporate personhood, the idea of extending what we think of as “humanity” for some purposes and not for others is not shocking. See, e.g., Citizens United v. Fed. Election Commn., 558 U.S. 310, 342 (2010) (recognizing that First Amendment protection extends to corporations).
37. Rabbi Epstein, The Babylonian Talmud, Kilayim 8:5, 132 (London: Soncino Press, 1961); Schachter and Freedman, The Babylonian Talmud, vol. 1, Sanhedrin 65 b, 445; Shlomo Yitzchaki, Commentary of Rashi on Job 6:23; Maimonides, Commentary to the Mishnah Kilayim 8:5; see also Shlomo E. Glicksberg, “Judaism and Evolution in Four Dimensions: Biological, Spiritual, Cultural, and Intellectual,” in Origin(s) of Design in Nature: A Fresh, Interdisciplinary Look at How Design Emerges in Complex Systems, Especially Life, ed. Liz Swan et al. (Netherlands: Springer, 2012), 212; Maimonides, Commentary to the Mishnah Kilayim 8:5. The idea of monkeys as intermediates between man and animal is well founded in Jewish thought. Discussing the four basic levels of Creation (minerals, plants, animals, and man), Rabbi Yosef Albo writes that just as coral life and sea sponges represent the intermediate existence between the plant and animal kingdoms, so too does the monkey represent the intermediate stage between animals and man. Yosef Albo, Sefer Halkarim [The Book of Principles] 3:1; Israel Lipschitz, Tiferet Yisrael, Yachin to the Mishnah Kilayim 8.
38. Jerusalem Talmud, Kilayim 8:5. See, e.g., Rash Mishantz, Commentary on Mishnah Kilayim 8:5 (arguing that the creature is a human); Rav Ovadia Bartenura, Commentary on Mishnah Kilayim 8:5; Jerusalem Talmud, Kilayim 8:5. See R. Akiva Eiger, Commentary to Yoreh Deah 2 (stating that monkeys cannot perform ritual slaughter not because they are not human but because they are not observant Jews); see also Maharasha, Chidushei Aggadot to Tractate Sanhedrin (implying that if something is alive, like an animal, and exhibits human characteristics, we would in fact consider it human).
39. Proverbs 6:6 (King James). Malachi Beit-Arié, Perek Shira. Nachmanides, Commentary on the Torah: Bereishis/Genesis 1:29. See note 25 and accompanying text (discussing the possibility of reward for animals that die for good reasons). Rabbi Epstein, The Babylonian Talmud, Chullin 7a–b, 29. Slifkin, Man and Beast, 71n.1 (quoting Osiyos D’Rabbi Akiva, Os Aleph). See note 16 and accompanying text (discussing the standards for putting an animal to death).