12 June 2015

Animal Personhood and Morality

‘Not All Dogs Go To Heaven: Judaism's Lessons In Beastly Morality’ by Mark Goldfeder in (2013-2014) 20 Animal Law 107 considers the moral status of animals and the definition of humanity under traditional Jewish law, as contained in Biblical texts and commentaries by ancient and historical Jewish scholars.
Examining whether animals are capable of moral behavior, it provides examples from various Judaic sources to support the idea that animals are capable of making conscious, moral choices. This Essay goes on to investigate the effect that morality has on the rights and rewards given to animals under Jewish law, and whether, as conscious moral actors, animals have souls. Turning more broadly to the definition of humanity, this Essay discusses whether there might be an expansive contextual definition that would encompass animals with the cognitive ability to communicate and interact like people. Possible tests for humanity under Jewish law, all of which could include animals, such as the contextual/functionality test, or the moral intelligence test, suggest that from a Jewish law perspective, animals that possess the ability to make moral choices may be more human than not.
Goldfeder comments
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 the Jewish faith.' It is intricately connected to the idea of free will, and the ability to choose rationally between morally acceptable and unacceptable behaviors-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 too 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. In light of recent findings, including the work of Frans B. M. de Waal and the research of Steven M. Wise, 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, noting the traditionally accepted views while pushing back to see if there might also be other extant traditions. 
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 to both know and respect that. The Bible makes specific mention of the moral lessons that man should learn from the other members of the animal kingdom. 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 in Genesis Rabbah notes, oftentimes God performs his wondrous actions through the agency of animals. 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. In a case where an animal kills a person, such as 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 as in any human capital case. By requiring a searching examination before killing an ox, the Torah demonstrates the severity of this matter. 
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 it 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.
Similarly, Nachmanides, an influential medieval authority, adds that animals sometimes even make behavioral choices based upon their feelings 
Lest one thinks 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!"
Returning to our original discussion, 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, 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, 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 Midrash 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 they 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.
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. In typical 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? 
Rabbi Moshe Chaim Luzzato (commonly referred to as "Ramchal"), a very influential Kabbalist and philosopher of the eighteenth century, wrote that animals do in fact have souls. Ramchal asserted that
[o]ne 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.
If they do have souls, then one would expect animals 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 (literally, Geniuses, a period roughly from the sixth to the eleventh centuries), 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." 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 Gaonim did. The Midrash tells us that animals will even have the ultimate reward, and 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.
Considering the amount of literature that is available within the Jewish 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 -even if the animals' choices are of somewhat lesser degree - we would have to rely on an obscure reference to make the case. 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 shifts to focus on that mystery, and attempts to answer the question of the great lacuna in the text of 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. The rabbis, as legal theorists, were not scientists, and were more interested in how to classify them than 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 the rabbis used in determining what exactly it was that gave a creature that elusive thing 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, etcetera. However, this Essay argues 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 to not harm 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." That might explain the dearth of specifically animal-focused discussion 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.