Thursday, August 30, 2012

Shiluach HaKein: The Transformation of a Mitzvah

(A re-post in light of it coming up in this week's parashah. Incidentally, I was recently informed about institutions that actually transport groups of people on buses to the forests to chase birds, in return for substantial contributions to their causes; one such institution has been renamed Yeshivat Tzaar Baalei Chaim by its various detractors.)

The mitzvah of shiluach hakein presents itself as a simple, innocent and charming mitzvah, is not at all straightforward. Tracing the exposition of this mitzvah through Mishnah, Talmud, Midrash, Rishonim, and Acharonim, we encounter extraordinary perspectives that turn the simple understanding upside-down. These relate to both the understanding of the purpose of the mitzvah, the logic behind its rewards, as well as halachic ramifications regarding whether it is an optional mitzvah which applies only in a case where one wants the eggs, or if one is obligated (or at least recommended) to do it even if one does not want the eggs, and even praised for actively seeking out opportunities to do so. There are some people today advertising opportunities that "You, too, can fulfill this valuable mitzvah for just six hundred dollars!" Shiluach hakein highlights the profound, irreconcilable differences between the rationalist and mystical schools of thought, and shows how they result in radically different notions of what doing mitzvos is all about.

Shiluach HaKein: The Transformation of the Mitzvah
is a comprehensive study of this important topic. You can download the document after making a donation; the recommended amount is $5. But if you want to take this opportunity to express your support of the RationalistJudaism website, and you have appreciated learning about kezayis, shofars, kidneys, the goal of Torah study, anisakis worms, the philosophy of Rambam, and so on, it would certainly be appropriate and appreciated to give a larger donation!

You can make a donation via PayPal or credit card by clicking on the following icon. After the payment, it will automatically take you to a download link for the document.



Contents

Introduction 5

I. Rationalist Approaches 7

In the Midrash 7

In the Rishonim 8

II. The Mishnah: No Speaking Of Mercy 10


Explanation #1: Anti-Christian Measures 10

Explanation #2: Highlighting Inequalities 12

Explanation #3: A Decree, Not God’s Mercy 12

3a. An Incomprehensible Statute 12

3b. Medieval Rationalist Interpretations 14

Explanation #4: Cruelty, Not Mercy 15

III. Mystical Approaches 17


Esoteric Reasons 17

Benefits of Cruelty 17

The Cruel Engineering of Compassion 18

IV. Optional, Recommended or Obligatory? 21


Relating the Halachah and the Rationale 21

Determining the Halachah 22

1. Optional - Only if one wants the young 23

2. Obligatory, Recommended, or Praiseworthy 26

A Mitzvah to Seek Out? 28

V. Rewards and their Logic 31


Good Days and a Long Life 31

Midrashic Rewards 32

Highlighting Anti-Rationalism 34

Modern Anti-Rationalists 35

Conclusion 36


Bibliography 39

55 comments:

  1. I was reading the Little Midrash Says to my child the other night. It says that the Talmud (Nedarim 10a) tells of some tzaddikim who would become nezirim just so that they could bring a korban chatas. It appears that there's a machlokes about the history, though: a different sage said that tzaddikim did not become nezirim on purpose in order to bring a chatas.

    My point in offering that gemara is that there seems to be a position which says that some tzaddikim went way out of their way to fulfill a certain mitzvah. This, to me, sounds pertinent to the issue of why some people (perhaps not tzaddikim) peculiarly go out of their way to do shiluach haken.

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  2. Daniel B. SchwartzAugust 16, 2010 at 4:08 PM

    The thing to do is to create an online institute, like R. Marc Angel has done, and sell memberships.

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  3. This is one of those mitzvos that make me want to CRY when I hear story after story about frum people cruely tormenting birds to "get the zechus of this tremendous mitzvah"! (Which is supposed to be a segulah for lots of life problems.) What is being done is antithetical to what the Torah said and the values that the Torah was trying to impart. It's cruel, and the Torah was specifically trying to prevent that cruelty. I am SO glad that you wrote an essay about it!! I could write a book on all the bird-torture stories I've heard in relation to the way this mitzvah is practiced by my coreligionists. Even before reading the article, I appreciate your writing it! :)

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  4. Thanks for an excellent article which was very helpful in clarifying the different irreconcilable understandings of this mitzvah.  I used to perform it frequently (with gloves on so the mother bird would come back to avoid unnecessary cruelty) hoping for one of the rewards - children and a house (we got neither!), and my daughter wants me to do it again, but after reading your piece I won't be doing it anymore for no reason.  On the other hand Rav Yisroel Belsky tells a story of his daughter who didn't have children and they decided to do the mitzvah as a segulah.  The husband did it, but wasn't sure if he had done it correctly, so all in all he did it three times and she did it once.  We were in Kiryat Sefer when it happened...  They had quadruplets - three boys and a girl!! 

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  5. Rabbi Slifkin,

    Please consider changing the "Suggested Donation" to $10 instead of $5.

    For Americans $5 is a slice of pizza and a soda. Your article is 40 pages!

    Sorry for giving you my unsolicited 2-cents, but, until you hire an agent, or gabbai, it is up to us "chassidim" to look out for your best interests..........

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  6. >>> They had quadruplets - three boys and a girl!!
    Check if she was taking fertility pills...its more likely that was reason for the quadruplets, not the segulah.
    gosh what supposedly intelligent people will believe.

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  7. I would like to present an answer to the proof of Rabbi Yair Bachrach, that the mitzvah is obligatory, from the Talmudic passage:

    I might have thought that one should travel the mountains and hills in order to find a nest,
    therefore it tells us “When you happen across it”—only when it happens for you. (Talmud,
    Chullin 139b)

    Based on the Ramban (and possibly Rambam) that “the reason for the prohibition is to teach us the trait of compassion,” the Talmud may be proposing that “I might have thought that one should travel….” at least once in one’s lifetime, in order to learn the trait of compassion, therefore it tells us…. There is no mitzvah at all unless “you happen across it.”

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  8. For only $5, you can save $600 on the mitzvah!

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  9. Does that mean that the rationalist approach is a segulah for parnasah? ;-)

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  10. The “cruelty, not mercy” shita, IMO, has a major problem in dealing with the Mishna you cited:

    “If someone says, “Your mercy extends upon the nest of birds”… we silence him. (Mishnah,
    Berachot 5:3)”

    They would have to interpret the Mishna as saying: I would think that the act of sending away the mother is an act of mercy…not so ! …in fact it is an act of cruelty. In other words, the Mishna is teaching us a “metzius.” It is not the derech of the Mishna to use strong language such as “meshaskin oso” when clarifying a metzius.

    I also find the shita of searching in the wilderness for birds to be bizarre. The Torah generally gives a time frame for positive commandments; Daily for tefillin, once a year for festivals etc. It seems as if this shita is equating Shiluach Hakein to Talmud Torah / Tztitzis etc, which are mitzvos that one has a constant/daily obligation to perform. Nowhere is this even remotely hinted to in the Torah.

    I wish to thank you for your article. I thought it was fascinating, thorough, and exceptionally clear in laying out the historical framework and the philosophies and driving forces behind the different viewpoints.

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  11. I agree with Avi Katz's comments, though I would still appreciate hearing R' Slifkin's thoughts on my first comment, which implies that you could've added one gemara to your analysis.

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  12. I believe that the peshat in both torah and talmud (Chulin) is that shiluach haken is a conditional mitzvah rather than an absolute one. If it were absolute, then the torah would not begin the description of the mitzvah with the words "If you happen upon", and the Gemara would not emphasize that one is not required to seek out a nest being tended to by a bird. Moreover, the torah states, "..you may not take the mother bird together with the offspring. Do send away the mother and then you can take the offspring..". While the sages often take a phrase out of context, no one subsequently has the right to disregard the latter half of the cited verse. In other words, the sending away the mother is connected to taking the offspring. If there is no interest in the offspring then the entire parsha is of academic interest only.
    Consider also the fact that no mention is made in the perek of shiluach haken in Chulin of some supposed absolute mitzvah. If there was such a thing, that would be a rather peculiar omission.

    The censure of a shaliach tzibbur in Berachot, I believe, who adds the invocation of "Your mercy extends to the bird's nest" is due to a presumptive innovation by that person. The torah doesn't give an explicit reason and doesn't prohibit trapping and killing birds (or taking the offspring in the absence of the mother bird). If anything, the primary reason for sending away the mother bird is more likely due to avoiding a subversion of the Divine intent. GOD implanted an instinct in the mother bird to guard her nest. That maternal instinct may not be converted into a tool for capturing both mother and offspring. That is why the reward for avoiding such action is the same as that promised for honoring parents.

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  13. Great article! One question though. If the rationale behind the mitzvah is to perform acts of compassion to animals would we stop performing this mitzvah if it was determined by biologists or other scientists that sending the mother bird away causes more distress (for various reasons) as this would be going against the purpose of the mitzvah or would you continue to do the mitzvah when appropriate but accept the Mystical approach of a cruel act rather than a compassionate one?

    Also what effect would this have on other Mitzvahs, such as would we really care what the scroll inside the mezzuzah said or if it were written perfectly if the whole purpose was to remind us to perform the Mitzvahs? Wouldn't the most important part be the case rather than the scroll in this instance?

    -Daniel

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  14. This booklet assumes that both Rationalists and Mystics are giving reasons for mitzvos. I disagree with that assumption that Mystics can give mystical reasons for mitzvos. My argument is that mystical “reasons” for mitzvos are given by theurgical statements in the form of “If you do X, Y will occur.” These types of statement may make us want to do X, in order to accomplish Y, but they do not give us any reason why God made the world with these rules. The opposite could easily be true. Thus, the “reasons” given by mystics are not reasons for mitzvos, but effects of mitzvos. The mystic has only moved the question from why we should do X, to why does X have such an effect. The mystic is then faced with the real issue of what is the reason for the command to do X. There are several possible answers. One answer is that there are no reasons other than the will of God. The Rationalist approach, which the Ramban adopts is that the world is structured with these mystical effects because God wants us to act in a certain way. Thus, the rationalistic approach is perfectly compatible with the mystical approach. The last approach, which illustrates the danger mysticism poses to traditional religion, is the deterministic approach under which God does not structure the world at all: the world, including all the mystical effects of mitzvos, is unchangeable. Many Mystics, such as the Ramban have adopted the rationalistic view. Many have adopted the view that there are no reasons for mitzvos. However, it cannot be assumed, simply from the fact that the Mystic discusses only mystical reasons for mitzvos, that he believes that there are no reasons for mitzvos. He may be discussing the mystical effects of mitzvos, without focusing on the reasons for mitzvos. Because the deterministic view is usually seen as heretical, we find many qualifications in mystical literature that try to avoid this view, where the robust mystical system reaches only up to a given point, while the ineffable God, who acts with a will is above this system.

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  15. Does Rabbi Slifkin, or anyone on this blog, know of something written in English from a basically traditional (Orthodox) perspective which talks about the history of Kabbalah and the historical and academic controversies about it at the time it was written, and afterwards (until today)?

    It would seem that having an understanding of this issue would help those of us who are seeking to sort out the Mystical vs Rational approaches to Judaism.

    Thanks.

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  16. Michapeset, I know that Rabbi Aryeh Kaplan, in "Meditation and Kabbalah" talks about this history.

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  17. how can the reason for the mitzva be to cause the rbs"o to have compassion over the jews in exile, when the torah is for all time - what about before and after the jews were in exile, what was the reason for the mitzva then acc to this explanation?

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  18. Thanks Phil. I'll look it up.

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  19. Just some of my personal experience with Shiluach Hakein. I arranged Shiluach Hakein for a friend of mine some ten years ago and he had his first child about a week shy of of nine months later, after eight or nine years of childlessness. I told this to Shiluach Hakein pioneer and author Rabbi Dan Schwartz of Jerusalem and he told me he has been told 1000 such stories (actually IIRC he said 1500 but I'll underestimate it to 1000) and in a very disproportionate amount of instances, the babies are boys. This seems to be consistent with the very literal meaning of "v'et haBANIM tikach". I assume that the number has increased in the past ten years.

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  20. reject:
    this is called regression toward the mean:
    http://en.wikipedia.org/wiki/Regression_toward_the_mean

    combined with self-selected reporting.

    kol tuv,
    josh

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  21. also, an expansion of this idea, and an explanation of why we would expect this disproportionate amount of boys, in a post at parshablog.

    kol tuv,
    josh

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  22. Josh,

    I liked your explanation of why to expect more boys. Well done.

    The theory of regression toward the mean was interesting. But is it an accepted mathematical theory? On Wikipedia, and the linked talk boards, it seems to be questioned.

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  23. thanks.

    as far as i understand it, regression toward the mean is a standard and accepted part of statistics. (and i've heard people who are quite knowledgeable about statistics refer to it and use it). what seems to be questioned in that Talk page, if i understand you and it correctly, is specific applications or extensions of it, or mathematical formulations of it. but consult your local orthodox statistician. :)

    kt,
    josh

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  24. mem said... "how can the reason for the mitzva be to cause the rbs"o to have compassion over the jews in exile, when the torah is for all time - what about before and after the jews were in exile, what was the reason for the mitzva then acc to this explanation?"

    Rabbi Elazar asks your question in the Zohar. The Zohar answers something about souls in exile, whatever that means.

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  25. Interesting article. I thought you'd mention the reward of a long life referring to Olam Haba. How do you reconcile this with the rewards described in the midrashim? Or do you just leave it as a machloket? The charedi world wouldn't be too happy with that answer.
    While on the topic, how do you approach reward and punishment in general that's mentioned in the midrashim and Gemara?

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  26. It's Shiluach HaKAN, not HaKein.

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  27. No, it's shiluach ha-KEIN. (in contrast to when "nest" is a prefix, when it's "kan".)

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  28. Regarding my comment above: August 16, 2010 4:32 PM - I still feel the same way, although I have since read the monograph. It is actually one of my favorite as it relates directly to an action, a mitzvah, on a very practical level.

    It is one thing to look at Judaism from a different outlook or perspective. It is quite another to practice it differently. This is one of the ways where not only does a rationalist approach directly affect the actions one will take in performing the mitzvah, but the actions one would take in performance of the mitzvah based on a rationalist approach could be completely OPPOSITE from the actions one would take in the kabbalistic approach to performing the same mitzvah.

    And being someone who appreciates animals, I very much appreciate that living animals can be protected by Torah and Orthodox halachah as opposed to being tortured in the name of Torah and halachah.

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  29. Michapeset - try:

    http://hashkafacircle.com/shiurim/category/history-of-kaballah/

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  30. I have not (yet) bought and read the article, so you may have brough this up already, but i saw in the Tanḥuma this week a statement that you're not obligated to climb up to the top of a tree to do the mitsva -- only if it's easily accessible. That would also indicate a "if you come across it" obligation as opposed to "go out and find one".

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  31. Great, now I get a chance to ask Rabbi Slifkin again to address my comment above (the first one on the list.)

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  32. And are there tzaddikim who go out of their way to go to war and find a non-jewish girl so that they can do the mitzvah of yefas toar?

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  33. Simon, well said.

    Michapeset.. instead of looking in R. Aryeh Kaplan's book on Meditation, I would look at his introduction to Sefer Yetzirah. It gives a different history than the one in his book about Meditation.

    His second history seems to come from having more intimate knowledge of the details at that point.

    Also his introduction to the Bahir has a slightly different history as well.
    http://www.amazon.com/Bahir-Aryeh-Kaplan/dp/0877286183

    http://www.amazon.com/Sefer-Yetzirah-Creation-Aryeh-Kaplan/dp/0877288550/ref=sr_1_1?s=books&ie=UTF8&qid=1315560687&sr=1-1

    I believe you can read some of the pages online.

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  34. RNS: A fair question (but I'm sure I could come up with a distinction). Still, did you use that source from Nedarim in your essay? And do you think it's relevant to the discussion?

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  35. Reuven & Ameteur - Thank you. However, my question on AUGUST 19, 2010 1:22 AM asking for something written in English from an Orthodox perspective which talks about the history of Kabbalah and the associated controversies, was written over a year ago. (When Rabbi Slifkin reposted this, all the comments from that original post were transferred as well).

    I have since done some reading on the subject and found the following two items in particular to be very informative:

    #1:
    http://www.mesora.org/ToharHayihud.pdf

    This first link had the following text before it:

    "I recently received the attached paper written by an elderly Rav and Maggid Shiur who wishes anonymity. He realizes the venomous attacks others suffered through the ages when opposing what is popular. He only wishes to shield his family by concealing his name. He cares none about his own battles.

    He cites so many fine arguments and authoritative sources, refuting Kabbalah and its heretical tenets.

    Please study it, and enjoy, as he wishes to spread the truth. If you are in chinuch, or know of others who would also benefit from this tremendous research and documentation, please share this work without restraint, as he wishes.

    I strongly suggest all mechanchim make copies, distribute, and also email this to others."


    #2:
    http://www.zootorah.com/controversy/ZoharEnglish.pdf

    This second link had the following text from Rabbi Slifkin written with it from:
    http://www.rationalistjudaism.com/2010/10/you-dont-mess-with-zohar.html

    Personally I have never really explored the issue, beyond the aforementioned view of the Chassam Sofer. There was an article on this which was floating around the net a few years ago, which you can download at this link. I can't give it a haskamah, since I'm not nearly knowledgeable enough in this area to evaluate it, and I haven't even read it carefully; just enough to see that it needs quite a bit of editing! But the quotations at the end, from unnamed Charedi gedolim, are fascinating and show just how divisive and explosive this issue is.

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  36. The suffering caused by shiluach hakein, while deplorable and unecessary, is insignificant compared to the torture inflicted upon the hundreds of millions of animals in factory farms -- businesses which nearly all frum Jews patronize continually without thinking twice about it. Shechitah is a mitzvah, and it is a mitzvah to separate milk and meat, but like shiluach hakein, divorce and yefas toar, these are optional mitzvot that cause considerable suffering. Some Jews do eat meat specifically for mystical reasons -- to help elevate the souls of the animals -- but most do it out of habit or conformity. Most people don't want to hear about the suffering of farmed animals, or doubt that it is so bad, but suffering is extremely well documented and this information is easily accessible (including through numerous examples of undercover video footage), and we have no real excuse to close our eyes to the consequences of our own actions in supporting these industries. As affirmed by the American Dietetic Association, it is also extremely well-documented that wholly plant-based diets are healthy and safe for virtually all people.

    "Whoever has compassion for other creatures is shown compassion from Heaven; whoever does not have compassion for other creatures is not shown compassion from Heaven" (Shabbos 151b). This is not mysticism, but a the basic a-turn-for-a-turn principle.

    While sometimes mysticism may lead to cruel practices, this isn't necessarily so. The shiluach hakein issues seems to arise because of entrepreneurs taking advantage of people's beliefs in segulot, not because of a widespread mystical tendency to cause suffering to others in hopes of good results. In the mystical school of thought with which I am most familiar -- Breslover chassidut as taught by R' Brody and Arush -- there is rarely a mention of segulot (none of which cause suffering to other beings), but the most prominent emphasis is on how developing emuna and bitachon helps one to overcome negative character traits such an anger -- and this is seen as the ultimate purpose of all the mitzvot. So even if the rationalist view is that mitzvot are meant mainly for character development, some mystical sects see character development as paramount as well. As an additional example, the kabbalist (and student of the Arizal) Chaim Vital said that a "person should therefore be more meticulous about eliminating bad character traits than fulfilling the positive mitzvos and the prohibitions," since bad character traits cause sin.

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  37. Haven't read the essay, but in case you missed CR Hertz, see his Chumash and this from R. Hirsch..........
    "The mother bird, brooding over its chicks, presents an awe-inspiring image. This simple act of nature conveys the most important ethical imperative. The Mitzvah speaks to man as he encounters nature. "Observe carefully a lowly creature faithfully fulfilling its life's purpose by protecting and rearing its young. Act at your peril before you disrupt such an awesome sight of nature. And remember at the same time to ponder and take the lesson to heart."

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  38. I would point out that at leas some Achronim learn that the Rambam's shitta is that shiluach hakein is actually a lav hanitak lasay. There actually is no mitzvah to do unless you've violated the aveira of taking the eggs with the mother, similar to the mitzvah to return stolen property after you've stolen it. One such Acharon is Rav Yehuda Fishel Perlow, writing on Rav Saadia Gaon. If you'll take a peek in the Rambam, I think you'll find this to be rather clear, actually.

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  39. R' Slifin, is my question too objectionable to answer?
    (If you choose to answer it, you need not post this particular post I'm typing now.)

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  40. I was wondering if this applies to chickens, and presuming yes do people actually send the chickens away to get the eggs? If they don't do it can we eat them? And would this case be different since the chickens are not slaughtered and eaten on the same day (the one's who are producing eggs). Or the other rule that it is distressful to the bird to even see it, apply.

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  41. It appears to me that the source I found by accident, from Nedarim 10a, is eminently related to the topic of people who way out of their way to fulfill a certain mitzvah. And you missed it! (Sorry to sound so harsh, but you weren't responding to my questions when I asked politely.)

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  42. I already responded. It depends what kind of mitzvah it is. Nobody ever divorced their wife in order to do the mitzvah of remarrying her. So IF you take the Zohar's approach to Shiluach hakein, you'll try to do it, but otherwise, not.

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  43. The thing is, you responded to my question with questions, but you never answered the question. Nedarim 10a, did you use that source in your essay, and, whether you did or didn't, do you think it is relevant?

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  44. What, you didn't even read the essay???!!

    No, I don't think it's relevant.

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  45. I'm cheap.
    Frankly, I think the Talmudic source is extremely relevant. You should ask others what they think.

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  46. I was just recently reading RSRHirsch's Horeb, and he seems to suggest a whole different rationale for the mitzvah that has nothing to do with the eggs.

    Unfortunately, I forget what it is. All I remember is that it is very different from what most people say.

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  47. Tzvi Ben Roshel, the Mishnah says (Chullin, perek Shiluach Haken, first Halacha) that the mitzvah applies only to birds that one happens upon, but if one raises birds in a particular spot indoors, one is exempt from the mitzvah.

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  48. Nobody ever divorced their wife in order to do the mitzvah of remarrying her.

    Not yet, but the idea is really appealing. The true believer could work in another mitzvah en route by first hating his wife so that he can do the mitzvah of giving her a get. The beauty is that, even if afterwards the wife refuses the second kidushin from the mamzer, at least he gets eternal reward for giving her a get.

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  49. Interesting post, i may have missed something in your essay but did not see you explain if we are to understand it in a purely rational commandment, why then did chazal give certain instances when one would be pottur eg: hekdesh, bird not hefker, etc etc

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  50. Don't know if someone posted this, but I always thought the approach viewing it as an obligation would be like saying one should go around and shecht animals even if he doesn't need the meat to fulfill shechita.

    Clearly, shechita is a humane way of slaughtering. However, it is even more humane to let the animal live, if you don't need the meat.

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  51. See Dor Revi'i on Hulin 139b where he refutes the position of the Havot Yair that shilu'ah ha-kein is an absolute requirement. The Havot Yair does not say that there is an obligation to look for a nest, accepting that the obligation is contingent on coming across a nest. However, the Havot Yair says that if one does come across the nest, one is absolutely required to send the mother away and take the eggs for himself. The Dor Revi'i argues that the entire obligation is contingent both on coming across the nest and on wanting the eggs. But if one doesn't want the eggs, one is not required to send away the mother and to take the eggs even though he doesn't want the eggs.

    http://hebrewbooks.org/pdfpager.aspx?req=37184&st=&pgnum=387

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  52. Natan Slifkin said...
    No, it's shiluach ha-KEIN. (in contrast to when "nest" is a prefix, when it's "kan".)

    I would suggest it's actually shiluach ha-EIM (or perhaps shiluach MIN ha-kein)

    Mark Symons

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  53. Rationally IrrationalJanuary 17, 2013 at 4:57 PM

    Would love to read this but only have a shekel account - can you add the NIS option in Paypal (if there is)?

    Thanks

    (I meant add! Not ass!!!)

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  54. Sorry, don't know how... but you can just use the 'send money' option and send it to my email address, zoorabbi@zootorah.com

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  55. The great Rosh hayeshiva and mequbal has often been heard to bemoan the fact that chasing segulot has become an alternative to dikduk bemitzvot,emunah and bitachon.

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