In 1457, an unusual defendant was brought to trial in France. Though her name has been lost to history, the accused was found guilty of killing a five-year-old boy and sentenced to hanging. What made this defendant particularly unusual is that she was a pig. And while the sow was convicted and ultimately executed, her human owner was accused only of negligence and not punished.
There is a long history of animal trials, from recent tragic cases of dog maulings, to early modern American trials against donkeys and roosters, to cases like the oxen who gore in the Hebrew Bible (Exodus 21:28). And while the Talmud is going to offer us an extensive discussion of which oxen can be found guilty and what their punishment should be when we get to Tractate Bava Kamma, on today’s daf the rabbis focus on the implications of convicted animals on betrothal.
The mishnah on today’s daf includes a list of items that cannot be used to betroth a woman, including an ox that is sentenced to be stoned. The Talmud is going to try to understand why such a betrothal doesn’t work. After all, presumably in the case of a public trial of a goring animal, the woman knows that the ox will be stoned, so it’s not a question of false premises.
But the rabbis are clear that a man still can’t use it to effect a betrothal because that would be “benefiting” from an animal sentenced to be killed. How do we know that you can’t benefit from such an animal? The Talmud walks through several steps to get there.
As it is taught by inference from that which is stated “And if an ox gores a man or a woman and they die, the ox shall be stoned, and its flesh shall not be eaten; but the owner of the ox shall be clear.” (Exodus 21:28)
The verse in Exodus states that the animal should be stoned and not eaten. But isn’t the second part of the verse obvious? After all, stoning is not a kosher form of animal slaughter, so obviously an animal stoned to death is not kosher. The Talmud explains:
If one slaughtered after its verdict had been reached it is prohibited to eat it.
The verse is teaching that if the ox happened to be slaughtered after it was convicted, it still cannot be eaten. But the verse says nothing about using it for betrothal or some other purpose. So the Gemara shifts to discussing where we learn that you can’t get benefit from such an ox at all.
The verse states: “But the owner of the ox shall be clear.” From where may it be inferred? Shimon ben Zoma says: This is like a person who says to another: So-and-so was left clear of his property, and he has no benefit from it at all.
Shimon ben Zoma reads the rest of the verse as saying that while the ox’s owner is considered blameless for the animal’s violence, that blamelessness has a cost. The owner can no longer use the ox for anything —including to effect a betrothal.
The Gemara continues by offering another source for the prohibition on benefiting from the convicted ox:
As Rabbi Abbahu says that Rabbi Elazar says wherever it is stated: “It shall not be eaten”; or “you (singular) shall not eat”; or “you, (plural) shall not eat” – both a prohibition against eating and a prohibition against benefit.
Rabbi Elazar thinks that this one phrase can actually come to teach two principles — that the animal cannot be eaten and that its owner cannot benefit from it. Usually, the rabbis will only learn one law from one verse (or phrase), but either way, Rabbi Elazar agrees that the owner of the ox cannot benefit from it.
Putting an animal on trial is part of a larger process of trying to determine who is at fault for harm, and (ideally) what society needs to do to repair as much of the harm as possible. For all these rabbis, the fault lies with the oxen who gored, not their owners. And yet, their owners still experience consequences for their actions — the loss of an expensive farming animal, a good steak dinner (or 20), a financial asset that could be used to betroth a woman.
The flip side of this formulation is that animals are treated as legal actors who are ultimately responsible for their own actions. Of course, with great responsibilities, might we also see great rights?