The sugya on Daf 32b debates whether צער בעלי חיים is a Torah law or not, but gives no indication where it is mentioned in the Torah, nor is it included as one of the 613 mitzvos.  Shita Mekubetzes says that its source is unclear, but most Rishonim conclude that it is a Torah mitzvah. Radvaz (#1542) writes that although it is dorayso, it is neither a לאו or עשה, but just an איסור, but Rabbi Akiva Eger here says it is איסור עשה. Some infer this teaching as implicated by the law of unloading one’s enemy’s donkey, or others see it in the angel’s stricture against Bilam striking the ass. Nimukei Yosef suggests that the Torah forbids one to cause an animal significant pain, and the Rabbonon extended this and forbade less substantial pain as well. 

ANIMAL RIGHTS

Judaism places great stress on proper treatment of animals and forbids unnecessary cruelty. This concern for the welfare of animals is rare in other religions and has only recently been been brought to the forefront by animal rights activists. Animals have sensations and instincts like man, but the Creator made their bodies and powers subservient to man (Bereshis 1:26) וירדו בדגת הים ובעוף השמים . Nonbelievers deny creation and deem man evolved from apes, so they naturally regard man and animals as equals, with equal rights, whereas in Jewish Law rights are dependent on obligations, something irrelevant to animals. Ramban (Bereshis 1:26) notes that an additional utterance was devoted to the making of man, separate from the animals, because of his exalted status over animals. Whilst the whole world was created in the image of Hashem, man posseses a divine soul that animals do not have. Saadia Gaon (Ha’emunos Ve’hadeos-4) asserts that man is the intended and ultimate purpose of creation. Rambam (Guide-3:13) challenges this view, maintaining that all parts of the world are equally intended by the divine will, but acknowledges that animals also have an instrumental purpose for the service of others. Numerous pesukim evidence that man is granted license to utilise animals as beasts of burden, for agricultural and transportation purposes and the like. Man has been bestowed dominion over the terrestial world, but he must answer to Hashem for the use to which he puts his position of power. Terumas Hadesheshen 105 regards the permissibility of causing suffering to animals for the benefit of mankind to be inherent in man’s right to use animals for his needs.

ENGENDERS CRUEL PERSONALITY

Halacha sanctions the infliction of pain on animals when the act furthers a legitimate human purpose. Rema (EH-5:14) writes: “Anything which is necessary in order to effect a cure or for other matters does not violate the issur of צער בעלי חיים. Therefore it is permitted to pluck feathers from live geese and there is no concern of צער בעלי חיים. Nevertheless, people refrain from doing so because it constitutes cruelty.” This Rema provides an insight into the question: Why should inflicting pain to animals be permitted just because it is of benefit to man, when it is still צער בעלי חיים? Feathers could be obtained from dead geese, so plucking them from live birds is a cruel practice. The rationale governing צער בעלי חיים restrictions is the underlying concern for the need to eliminate inclinations of cruelty and to develop compassion in human beings. Rambam (Guide-3:48) states that the reason for the prohibition against אבר מן החי is because this would make one acquire the habit of cruelty. Ramban (Devarim 22:6) explains the prohibition to slaughter an animal and its offspring on the same day is that we should not have a cruel heart and lack compassion. Hashem’s mercy does not extend to creatures that have just an animal soul to prevent their function of serving man’s needs, for if so, Hashem would have forbidden slaughtering of animals altogether. Rather the reason not to slaughter both on the same day is in order to teach us the trait of mercy and that we should not become cruel to our fellow man. For cruelty spreads through the soul of man, expanding from cruelty to animals to cruelty toward humans. By permitting shechita, but conditioning that slaughter is done by a method that mitigates pain, it engenders compassion. Eating humanely shechted meat thus inculcates us with the concepts of mercy.

A HIGHER LEVEL OF MORAL EXCELLENCE

The above-cited Rema is based on Terumas Hadeshen (Pesakim Ukesavim 105) who provides a reason why people refrain from plucking feathers from live geese, even though it is permitted. He writes: perhaps the reason is that people do not wish to act with the trait of cruelty to animals for they fear lest they receive punishment for that, as we find in Bava Metzia 85 regarding Rebbi. The anecdote related there concerned a calf that was being taken to be slaughtered when it broke away and hid its head under Rabbi Yehuda Hanassi’s cloak and bowed in terror. Said Rebbi: “Go, for this you were created.” Thereupon they said in Heaven, “since he has no pity, let us bring suffering upon him.” On another occasion, Rebbi’s maidservant was sweeping the house; seeing some weasels lying there, she started to sweep them away. Said Rebbi: “Let them be, for it is written ורחמיו על כל מעשיו.” Thereupon they said in Heaven: “Since he is compassionate, let us be compassionate to him.” This account is instructive in teaching the difference between halachic requirements and ethical conduct which is לפנים משורת הדין. Not every person succeeds in perceiving the need to conduct himself with the higher degree of moral excellence. Those that reach that level are judged in Heaven in accordance with that standard and may be punished if they fall below the level they have attained. Thus, Rema comments that people refrain from plucking live geese even if it halachically permitted.

ANIMAL EXPERIMENTATION

R’ Yechiel Yakov Weinberg (Seridei Esh-3:7) points out that the Rema’s chumra should not apply to halachically permitted forms of animal experimentation. He argues that chumras are personal and one may not impose stringencies of piety on others. One cannot weigh the cost of foregoing a private benefit against public benefit. Furthermore, the elimination of pain and suffering of human beings takes precedence over that of animals. R’ Waldenberg (Titz Eliezer-14:68) agrees but urges that pain be minimised as much as possible. R’ Yakov Breisch (Chelkas Yakov-1:30:6) concurs that animal experimentation is halachically permitted but is concerned about preserving oneself from the trait of cruelty. This would be addressed to the person performing the experiments. R’ Eliyahu Klatzkin (Imrei Shefer 34) draws a distinction between procedures of direct value and experimentation which is undertaken on the mere possibility of benefit through medical science. Other authorities, such as Daas Kedoshim (YD24:12) permits procedures even where there is only the mere possibility of a satisfied need. However, R’ Yoel Schwartz (Verachamav al kol Maasav-p.56) points out that these heterim do not apply to painful procedures performed on living animals by students enrolled in laboratory classes as part of their general education. Where the person is directly involved in inflicting the pain, there is more reason to be concerned about him being influenced by the cruelty involved. We have seen that although generally avoidance of pain to animals is viewed from the perspective of animal welfare, the Torah perspective is focused primarily on the affect cruelty will have on the person. The person should have respect for the sensitivities of animals which have similar nerve sensations and instincts to man. Where the person is conscious of a positive purpose for his action, that preoccupation will obviate registration of any perception of cruelty in his personality, providing he takes steps to mitigate pain wherever possible, such as utilising euthanasia.

WISHING TISCHADESH

There is an interesting custom associated with this concept brought in connection with making ברכת שהחיינו over new shoes.  Rema (OC223:6) notes the custom to wish a person תבלה ותתחדש when he is wearing a new garment. He then quotes Mahari Weil that one should not do this in respect of shoes or leather garments, because that would involve killing another animal first, and it is written ורחמיו על כל מעשיו. Rema comments that this is a very weak reason and unlikely, but even so many are particular not to say it. Nowadays, we use an abbreviated form and just say תתחדש, which is mistakenly understood to be congratulating the wearer on his new garment. However, the full version תבלה ותתחדש has a different meaning; one is blessing the person for a long life, that he should wear the garment until it wears out and then will have to buy another new garment. If it is a leather garment this will involve killing another animal and for that reason it is not a full blessing. Rema argues that it is a weak reason, possibly because skins are available anyway from animals slaughtered for meat. We detect in this custom of refraining to give the blessing an inborn sensitivity to animal suffering.