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Rav Jonathan Mishkin
Refuah Sheleima for Avrohom Yisroel ben Chaya Bruria.
21.09.2014

 

When an ox gores a man or a woman to death, the ox shall be stoned and its flesh shall not be eaten, but the owner of the ox is not to be punished.  If, however, that ox has been in the habit of goring, and its owner, though warned, has failed to guard it, and it kills a man or a woman - the ox shall be stoned and its owner, too, shall be put to death.  If ransom is laid upon him, he must pay whatever is laid upon him to redeem his life.  So, too, if it gores a minor, male or female, so shall he be dealt with according to the same rule.  But if the ox gores a slave, male or female, he shall pay thirty shekels of silver to the master, and the ox shall be stoned" (Exodus 21:28-32).

 

     Before we begin to analyze the philosophy of these laws from the Book of Exodus, the addition of a few Rabbinic comments will help to explain the situations the Torah has raised.  There are two principal cases being discussed here: the first one is known as SHOR TAM - literally an innocent ox; the second case as SHOR MU'AD - the habitual ox.  The Torah assumes that oxen do not generally attack people and that such an event is an unusual occurrence.  If an ox does suddenly go berserk and gores a person to death, the animal is put down.  The ox's owner is not further punished because he could not have anticipated his animal's murderous behavior.  If, however, the ox has made a habit of charging people, its master should have taken greater precautionary measures to prevent further catastrophes.  Because he did not, his ox - violent on at least three previous occasions - is killed and the farmer is punished as well.  While the verse above states that in this last case,the ox owner is killed, the Talmud dismisses a literal reading, arguing that a human court cannot kill somebody for this crime which he did not directly commit.  The irresponsible owner is required to pay compensation to the victim's heirs and might suffer a premature death by the hand of God.  But this essay is more concerned with the fate of the ox than it is with his owner.  Why is the ox killed?

 

     Our immediate response should be to compare the criminal animal (we assume that the Torah used an ox as an example and that the laws we are discussing apply equally to a pit bull or any enraged animal) to a criminal person.  When a person sins, it is logical for a justice system to be concerned primarily with punishment.  The perpetrator violated the law causing somebody to suffer and should in turn suffer for the pain he has caused.  Does this argument make sense when transferred to an animal?  Can an animal be held responsible for its actions?  I believe it can and we will return to this point below.

 

     The second reason to kill the ox would be as a punishment for the owner.  As payment for his negligence leading to the death of a person, the farmer's animal is taken from him.  This explanation is not completely satisfactory for two reasons.  Firstly, an ownerless animal who kills a person is put to death as well which is why (according to the Ralbag - Rabbi Levi ben Gershom 14th century) the Torah says "When an ox gores a man or a woman" and not "When a person's ox gores a man or a woman.  Secondly, the Torah states that even a SHOR TAM is killed.  Despite the fact that the owner could not have anticipated his animal's attack, meaning that the person is less culpable than if there had been previous incidents, the ox is still killed.  This seems hardly fair punishment for the farmer.

 

     The Ralbag introduces a third idea into our discussion, which is simply that we have a dangerous beast on our hands and we'd best dispose of it to prevent further calamity.  Here, it is the SHOR MU'AD which creates a problem for us.  The Talmud (Bava Kama 41) asks this question: Since when it was still in the state of TAM, it had to be killed, how could it ever have been possible to declare it MU'AD?  Rav Ashi provides one of the answers to this question - it is possible that the ox has previously gored three people who have yet to die from their wounds.  Surely, by this point it is clear that this animal is extremely dangerous, and yet it is not killed until it murders.  Perhaps, prevention is not the perfect explanation either.

 

     There is, of course, another reason to punish humans: it serves as a deterrent to other potential offenders.  We need not explain why this is an unlikely interpretation of our story.

 

     There are several other questions which our passage raises.  Why, for example, does the Torah tell us that the animal's flesh may not be eaten?  This point is asked by the Talmud (ibid.) which phrases it this way: "Our Rabbis taught: From the implication of the statement 'The ox shall be surely stoned' would I not have known that it becomes NEVELA (an animal not ritually slaughtered) and that by becoming NEVELA it should be forbidden to be consumed for food?  Why then was it necessary to state further 'And his flesh shall not be eaten?'"

 

     Again, several answers are presented in the gemara: the Torah warns the owner against trying to salvage something from the situation by rushing to slaughter the cow before its sentence of stoning is carried out - even if there was proper SHECHITA, the animal's flesh is forbidden.  Following this, the gemara discusses another prohibition associated with this story, which is that whether the ox is stoned or illegally slaughtered, no benefit may be derived from its meat or any other body parts.  Why is the flesh forbidden if the animal is properly slaughtered?  Why can the owner not sell the animal skins and at least be saved some of his loss?  Is all this further punishment for the farmer?  Again, if it were, why aren't the rules more lenient for a SHOR TAM?  Note that this first-time offender is stoned to death as well.  Is the Torah telling us that the ox is stoned so that its meat will not be eaten?  Why, indeed, is the animal stoned?

 

     SEKILA - stoning is one of Judaism's four types of capital punishments.  Considered the harshest way to die, it is administered to criminals who have worshipped idolatry, violated Shabbat, engaged in various forbidden sexual unions and committed other sins (see the Rambam's Hilkhot Sanhedrin 15:10 for a complete list).  After sentencing, the convict was pushed to the ground from a height of about 16 feet.  If the fall did not kill him, a large stone was dropped on him, followed by the heaving of many stones until the sinner died.  Other ways of killing a criminal available to the courts are SEREIFA - burning - which involved pouring molten lead down the victim's throat; HEREG - decapitation; and CHENEK -strangulation, which is not hanging but a procedure whereby a scarf tied around the condemned's neck is pulled on both ends.  Compared to these three options for killing a criminal, SEKILA looks like a pretty safe way to dispose of this bovine menace - chase it off a cliff and then pile rocks on it.  The ox can be killed from a distance and nobody has to hold it down and convince it to drink a burning hemlock.

 

     Shooting it with a bow and arrow, I suppose, is a fifth option but this method of killing just isn't in a BEIT DIN's arsenal.  Interestingly, the punishment for a murder committed by a person is decapitation and yet the Torah prescribes an even more severe death for the animal which kills.  Perhaps decapitating the ox would resemble a ritual slaughter and people might mistakenly conclude they could eat the animal's meat.  Besides this, I believe that the Torah is making a statement by legislating the stoning of the animal.  The ox is not killed merely because it is dangerous - if that were so, we should be allowed to slaughter it, which is the most usual way of ending an animal's life.  Furthermore, the prohibitions against eating and benefiting from the carcass don't seem to follow from this understanding for putting the ox to sleep.  And so we return to our original question, which is why the animal is killed at all.  It is killed as a punishment for taking a human life.

 

     Genesis 9:5-6 contains the following warning: "But for your own life-blood I will require a reckoning: I will require it of every beast; of man, too, will I require a reckoning for human life, of every man for that of his fellow man!  Whoever sheds the blood of man, by man shall his blood be shed; For in His image did God make man."  Anyone - man or animal - who kills a person shall pay for it.  The Ramban (Rabbi Moses ben Nachman 13th century) finds this idea astonishing: "I am amazed at the meaning of this verse - how is an animal held accountable and punished for its actions just like a human is - an animal lacks conscience (the Ramban uses the Hebrew word DA'AT) which is necessary for reward or punishment.  But perhaps in the lone matter of killing a person, [the Torah states] a divine decree that an animal who destroys a person shall itself be destroyed.  And this is why the ox is stoned and its meat is forbidden ... for 'whoever sheds the blood of man.'"

 

     The Talmud (Berakhot 61a) goes further, arguing that an animal does in fact have a conscience (YETZER) which is why it can be punished for a crime against a person.  It must be noted, however, that from the Torah's perspective, an animal is not held responsible for just any errant behavior.  For example, in verses following the ones we have been discussing, an ox who gores another ox is not punished for his transgression - he is not beaten or forced to plow an extra field before bedtime.  The debate about an animal's accountability only concerns us when a human life has been lost.  It seems that what bothers the Torah is that a TZELEM ELOKIM - an "image of God" has been destroyed and somebody or something must answer for that crime.  In interpreting Genesis 9:6, Bereishit Rabba 34:20 quotes Rabbi Akiva as saying that killing a person is akin to diminishing the "DEMUT"- the image of God.  A person or an animal who takes a human life must not be allowed to live and must be destroyed.

 

     We can now explain why the meat of the destroyer is off limits.  There is something evil or repulsive about this animal and ingestion of its meat is improper.  In Judaism, the eating of animal meat was initially linked to the sacrificial services where naturally, the animal involved had to be holy, perfect (see Chullin 16b for a discussion of this relationship).  Clearly an animal with human blood on its horns was unfit for sacrifice to God and should similarly be unfit for human consumption.

 

     One last point should convince us that the Torah is concerned with punishing the animal for its crime.  If we examine the sequence of the verses in Exodus 21 we notice something odd.  The five verses which talk about an ox goring a person are followed by two verses (33-34) discussing the responsibility of a person who has dug a pit into which another person's animal fell.  After this scenario, we return to cases of a goring ox - this time one which attacks other animals.  Now, would it not have made sense for the Torah to put all of the cases of goring oxen together?  Why separate them with the pit case?  I believe that the Torah intentionally separated the scenarios of attacking oxen to emphasize that an animal victim is a property issue and more closely resembles the pit case than it does the human victim case.  Even when the human victim is a slave who is his master's property to a degree and whose death must be compensated for by the ox's owner, the ox is still stoned to death for taking a human life.  And this is the lesson that Exodus 21 is teaching: destroying a TZELEM ELOKIM is among the gravest possible offenses.  Regardless of who or what the criminal is - his only atonement is death.

 

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