Dear Kollel,
The gemara has been discussing when it is possible and how to punish with death by Beis Din. The gemara discusses situations where death cannot be rendered by Beis Din for various reasons and the solution is rather than let the murderer go free is to "kill" him by sticking him in the kippa. The same is true for animals in specific situation.
I understand that because beis din cannot kill him, this is a way of punishing him without doing it byadaim. However it seems that there should be other methods of accomplishing this. This seems like a gross violation of tzaare baalei chayim. Letting the animal (or human) starve to death in cramped quarters, or let him eat barley, so as to explode his stomach, seems inhumane. Why is this not a problem of tzaar baalei chayim? Furthermore, if you asked the person what he would prefer - he would probably request the skilla/sayif, etc. rather than get stuck in the kippa..
Thank you,
Rafi Goldmeier
We are including here a copy of a response Rabbi Pearlman wrote for a similar question. I am hoping that this will resolve most of your questions on this subject.
Best wishes,
Kollel Iyun Hadaf
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Yoma 050: Chatas Mesa
Joseph Neustein, M.D. asked:
How do we reconcile the status of a chatas mesa which ostensibly appears
quite cruel with the injunction against tzaar baaleh chayim?
Respectfully yours,
Joseph Neustein, M.D., El Paso, Texas USA
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Rav Joseph Pearlman replies:
Animals exist for the service of mankind and are for food or sacrifice or for other positive function. This includes the performance of Mitzvos and also reasonable experimentation for medical purposes for the benefit of mankind (Rema, Even ha'Ezer 5:14).
Thus, the goat to Azazel of the Avodah on Yom Kipur (Vayikra 1610) was necessary for the sake of Hash-m's commandment, however cruel it might seem to us. Another good example is in the Shulchan Orech, Yoreh Deah 24:8, Rema and Shach (#8), quoting the Mordechai and others, and see also the Pri Megadim in Sifsei Da'as there, regarding plucking the wool or feathers from an animal that interfere with the Shechitah.
It should be noted also that the Noda b'Yehudah (Mahadura Tinyana, YD #10) holds that Tza'ar Ba'alei Chayim, the prohibition against cruelty to animals, has no application where the animal is being put to death. Others, though, disagree.
Hence, there is no problem with Chato'os ha'Meisos, as there is no alternative possibility with sound Halachic reasons as to what to do with the animal. (Since it is being left to starve for the sake of serving a Halachic purpose as mandated by G-d, it is not considered Tza'ar Ba'alei Chayim.)
However, where these considerations do not apply, one is certainly obligated to treat animals with kindness, as a number of sources in the Gemara and Halachah clearly indicate. Moreover, apart from all of the specific Mitzvos in the Torah (such as lifting the heavy burden off of an animal that has fallen down, the prohibition against muzzling an animal to prevent it from eating while working, letting one's animal rest from work on Shabbos, the prohibition against working two different types of animals together, the requirement to feed one's animals first before eating, and Tza'ar Ba'alei Chayim), there is the general overriding principle of emulating G-d's trait of "v'Rachamav Al Kol Ma'asav," Hash-m "is merciful upon all of His creations."
Joseph Pearlman
I think we have satisfactorily dealt with the animal issue but not yet the human one. The answer to the latter is already to be found in the Rambam, Hilchos Rotze'ach 4:8-9: "One who murders, and there are not two witnesses who together see him, or one who murders in front of two witnesses but without a proper Hasra'ah (warning)... all of these murderers are placed into a 'Kipah' ... and we do not do this to any of the other transgressors who are punishable with Misas Beis Din.... Even though there are transgressions that are more severe than murder, they do not involve a corruption of the social order, as does murder. Even Avodah Zarah, and it goes without saying that Arayos or Chilul Shabbos are not like murder, for these transgressions are transgressions between man and Hash-m, while murder is a transgression between man and his fellow man, and anyone who is guilty of this transgression is an absolute Rasha, and none of the Mitzvos that he did in all of his life can outweigh the severity of this sin" (see there).
However, in Hilchos Sanhedrin 18:4-5, the Rambam rules in accordance with the Mishnah (Sanhedrin 81b), which states that the law of Kipah applies also to all Aveiros which a person flagrantly and repeatedly flouts.
See Rabeinu Y. F. Perlow on the Sefer ha'Mitzvos of Rav Sa'adyah Gaon (vol. 3, Pesichah ch. 22 (on p. 55)) who reconciles the two statements of the Rambam (copy attached). See also Imrei Chen on the Rambam there (copy attached).
Thus we see that Kipah is only for repeated, wanton transgressions, or for a single murder where the culprit would get off on a technicality.
The Margoliyos ha'Yam in Sanhedrin (81b, #26) explains why this punishment which is more horrible than the usual capital punishments is given in these cases (copy attached).
Joseph Pearlman