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Bava Kamma 91

Our Gemara on Amud Aleph references the principle that once a defendant is convicted for a capital crime, there is an imperative to carry out the punishment immediately, so as not to prolong his agony. (See Sanhedrin 35a and Rashi “Lidayne.”) This is known as Iynuy Hadin. However, curiously in our Gemara they are referring to delaying the death of an ox that was convicted for goring a person.


The commentaries struggle with trying to understand how we could be concerned with the psychological torment of an ox on death row. Of course, there is an ethic of tza’ar baalei chaim, to be careful not to cause suffering to animals. But could the ox be so perceptive as to understand that he is condemned to death?

Various answers are given, such as there are scriptural comparisons between the animal’s death and a human death that create equivalence in law, even if morally not equivalent (see Ra’avad in Shitta Mekubetzes on this daf). Others say it is because there is still an additional imperative to “abolish evil from your midst” (Devarim 13:6 and Devar Avraham, II:34:2).

However, I would say that animals are perceptive enough to pick up on their master’s sense of distress and may well realize that some doom awaits them.

Yet, another issue to consider is that even if the animal does perceive some terrible fate, and “feels” anxious, is the animal really suffering? That is subject to a debate between Rambam and Ramban regarding the reason for the prohibition against causing animal suffering. Ramban (Devarim 22:6) considers it absurd that an animal should have enough self-awareness to experience suffering. Biologically, it represents instinctive responses to thrash and fight against existential danger, that in humans, we perceive as suffering. However, without consciousness, animals cannot really suffer. Ramban bases his reasoning on the Gemara Berachos (33b):

One who recites in his supplication: Just as Your mercy is extended to a bird’s nest, as You have commanded us to send away the mother before taking her chicks or eggs (Deuteronomy 22:6-7)… is to be silenced.

Ramban’s understanding of this is that if we took matters to this extent, how would we be permitted to eat animals? Rather, the Torah decreed certain limits to how we use or abuse animals, and also since the animal appears to suffer, to forestall developing a callous and cruel attitude, we cannot mistreat them. But to praise G-d for having mercy on animals is misguided.

However, Rambam in the Guide for the Perplexed (III:48) holds that animals indeed do suffer. He states in reference to the commandment to send away the mother bird:

There is no difference in this case between the pain of man and the pain of other living beings, since the love and tenderness of the mother for her young ones is not produced by reasoning, but by imagination, and this faculty exists not only in man but in most living beings.

Rambam holds that emotions come from the instinctive, symbolic, and imaginative faculties which are not a function of cognition, but experience. If this is so, I do not see why we should not be concerned for the distress of the ox as it intuits its pending death.

An interesting contemporary nafka mina (practical outcome) between Ramban and Rambam is if it is a problem to be cruel to an android or AI. According to Rambam, obviously not, as the Android is simply a simulation. Even if it passes a Turing test it does not operate with any form of consciousness; it is merely a sophisticated algorithm. But according to Ramban, poor middos are poor middos, no matter what. If the strictures of tzaar baaley chaim are to prevent developing a callous attitude, then it should apply even to an AI, at least according to the spirit of the law. Personally, for this reason, call me crazy but I say please and thank you to Siri and ChatGPT.

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