Responsa #2

(8) Fruit-bearing trees must not be cut down outside of the city⁴³Under siege in order to pain them. nor do we block their irrigation water causing the trees to dry up, as it says, “do not destroy her trees” (Deut. 20:19). Anyone who cuts down a tree receives lashes. This is not only at times of a siege, but anyone at anytime who chops down a fruit-bearing tree by for destructive purposes receives stripes. The tree may be cut down if it is damaging other trees or it is damaging another’s field, or because the tree is more valuable for its wood than its fruit. The Torah only forbids wanton destruction.

(14) Rabbi Shimon ben Elazar says: have you ever seen a wild beast or a bird with a profession? Yet they are sustained without trouble. Now, were they not were created only to serve me, while I was created to serve my master: surely then I should make a living without trouble! But my evil acts have done me in and withheld my livelihood.

The root of the question is this: A certain man, who God has graced with a large estate, has villages and forests – forests in which all the beasts of the forest prowl. May he go himself to shoot with a rifle (lit. “fire stick”) to trap game, or is it forbidden for one of Israel to do this deed, whether because it causes pain to creatures (“tza’ar ba’alei hayim”), because it violates “you shall not destroy” (“bal tashhit”), or because it is customary to regard it as tza’ar ba’alei hayim?

It is explained in Tosafot on Tractate Avoda Zara, that is, in Piskei Hatosafot, and in Issur Ve-hetter 59:36, which states in the name of Rosh (R. Asher b. Jehiel) that anything medicinal does not constitute a gentile custom (“darkei ha-Emori”) and in the name Tosafot in Avoda Zara that although tza’ar ba’alei hayim is a Torah prohibition, if it is helpful in some way, it is permitted.

Indeed, there is no need for us to write at length about this, because R. Israel Isserlein has already written at length, in his Pesakim U-khetavim (Terumat Ha-deshen Vol II) §105, that anything that is for man’s needs does not constitute tza’ar ba’alei hayim, and moreover, tza’ar ba’alei hayim is only applicable when one causes it pain but leaves it alive. However, to kill livestock, beasts, and all sorts of animals does not constitute tza’ar ba’alei hayim.

[This can also be shown from Hullin 7b: “Shall I mutilate it? It constitutes tza’ar ba’alei hayim. Kill it? It constitutes bal tashhit.” Thus, even though the response to his proposal to mutilate is that it would constitute tza’ar ba’alei hayim, he nevertheless asks if he may kill it.]

Thus, there is no tza’ar ba’alei hayim in the subject of this question.

And there is no bal tashhit because one benefits from the pelt, and further, is not acting in a destructive manner.

Furthermore, the main prohibition of bal tashhit, though rabbinic, is nevertheless rooted in the Torah’s prohibition of cutting down fruit trees. And there it is written: “For you shall eat it and not cut it down…” (Devarim 20:19). Thus, since whatever the rabbis instituted was modeled on Torah law, one may not destroy something that man can benefit from; one may not destroy and debase that benefit. Perhaps this even applies to something ownerless. However, bal tashhit does not apply to something whose loss that will not cause the loss of benefit to any man. Therefore, those animals of the forest, while they are alive, give benefit to no man. Their main benefit is in their death—through their pelts and meat. So how can we say that it is forbidden to kill them because of bal tashhit?

However, I am surprised by the matter itself. We find no hunters other than Nimrod and Esau, and this is not the way of the children of Abraham, Isaac, and Jacob.

Go and look, regarding the congratulation “let it be worn out and renewed” – R. Jacob Weil writes in his rulings, cited by Rema in Orah Hayim at the end of §223, that one does not say this on something made of animal skins, because “His mercy extends over all His creations” (Psalms 145:9).

(And even though Rema writes on this that it is weak reasoning, because it is not necessary for an animal to be killed on his behalf, as there are many pelts and skins that are already prepared, and many of them die of natural causes but can still be used for their pelts. Nevertheless, Rema concludes that many are careful about this.)

For how can a man of Israel actively kill beasts needlessly, simply to pass his leisure time by engaging in hunting?

Secondly, even according to Rabbi Eliezer, we maintain the view of Resh Lakish, namely, that only when [the beasts] have already killed [is it permitted to kill them], as made clear by Maimonides.

(yet a party to the debate may still find grounds to say that this applies when they have an owner and are tame, as detailed in Sanhedrin 15b, which concludes regarding the statement of R. Shimon b. Lakish [=Resh Lakish], “We see that he maintains that they are tame and have owners.” This is also the formulation of Maimonides loc. cit.: “A lion, bear, or panther that are tame and have owners…” Thus, those which were not domesticated are not tame and are usually destructive, and so even on Shabbat it is nevertheless permitted to trample them innocuously, as detailed in Shabbat 121b and Shulhan Arukh [Orah Hayim] 316:10.)

And we can also say as a reason for slaughter from the neck with a checked knife, [that it is] in order that we not cause too much pain to living beings. As the Torah [only] permitted man - due to his status - to derive nourishment from them for all of his needs, but not to cause them pain for no reason. And the Sages have already spoken much about the prohibition of pain to living beings in Bava Metzia 32a and in Shabbat 128b, [as to] whether it is a Torah prohibition. And it appears to come out that it is a Torah prohibition (See Mishneh Torah, Laws of Murderer and the Preservation of Life 13:13).

(4) Cases concerning offenses punishable by death [are decided] by twenty three.

The wolf, the lion, the bear, the leopard, the panther, or serpent [that have killed a human being] their death is [adjudicated] by twenty three. Rabbi Eliezer says: “Anyone who kills them before they come to court merits.” But Rabbi Akiva says: “Their death must be [adjudicated] by twenty three.