THE PROHIBITION OF RITUAL SLAUGHTERING(KOSHER SHECHITA AND HALAL) AND FREEDOM OF RELIGION OF MINORITIES

THE PROHIBITION OF RITUAL SLAUGHTERING (KOSHER SHECHITA AND HALAL) AND FREEDOM OF RELIGION OF MINORITIES
“His tender mercies are over all His works”1
Pablo Lerner* and Alfredo Mordechai Rabello**
* Senior Lecturer, Ramat Gan School of Law, Ramat Gan, Israel.** Professor of Law, Hebrew University of Jerusalem (emeritus); University of Haifa, Haifa, Israel.
INTRODUCTION
The statutory prohibition against ritual slaughter, which does notstun the animal prior to slaughter, as required in most Western nations,poses a significant challenge for the international right to freedom ofreligion or belief in European nation-states. 2 This prohibition isimportant not only in Europe, or because of the prohibition itself, butbecause it implicates the legal status of two minority religiouscommunities in these nation-states, those of Judaism and Islam. Someanimal rights advocates have objected to ritual slaughter withoutstunning because, in their view, it causes needless suffering by theanimal,3 and they have been successful in getting their views enactedinto law in a number of European countries. Indeed, some countriesprohibit ritual slaughtering altogether, as we shall discuss below.This paper argues that the right to freedom of religion or beliefrequires nation-states to respect the rights of religious minorities thatengage in ritual slaughter, even if they recognize the importance ofavoiding unnecessary suffering4 of animals. Following a review of thelegal status of animals in rights discourse generally, we will show whythe prohibition of ritual slaughter needlessly results in discriminationagainst religious minorities, and why it is important that nation-statesattempting to reduce animal suffering more clearly specify realisticalternatives for avoiding such suffering that are compatible with currentreligious mandates about animal slaughter. We will also considerwhether the alternative of importing kosher or halal meat in place ofritual slaughtering, proposed by some nation-states as a method ofalleviating the harm to religious minorities, is an effective and fairalternative.
I. THE CONCERN ABOUT ANIMALSSince the usual claim raised by animal rights advocates againstritual slaughtering is that it is cruel to animals, it is worthwhile to beginour discussion with a brief examination of the historical development ofthe concepts of cruelty and animal welfare, including the major religioustraditions’ views5 that influence the Western approach to the status ofanimals. We want to distinguish the question of slaughtering per sefrom the legitimate concerns that have been raised about thedevelopment of farm factories and related slaughtering practices. Wewill show that, while the Western traditions have traditionally viewedhuman beings as having dominion over creation, that view has beenaccompanied by a consistent demand for ethical treatment of animals, aview which does support claims against many farm factory practices andhas also informed religious slaughtering practices as described in thenext section.
A. Historical Philosophical and Religious Views about the EthicalTreatment of Animals
Concerns about animal welfare are certainly not new, nor unique tothe Western tradition. In ancient Greece, we find some advocates ofvegetarianism, 6 although Greek philosophy, and perhaps its mostprominent representative Aristotle, did not devote too muchphilosophical attention to questions of the ethical treatment of animals.7The same might be said of Roman philosophy, which rarely consideredwhat human communities owe animals.8Jewish attitudes toward animals are based on Biblical texts. TheScripture says that the Almighty bestowed on human beings the right tocontrol animals, according to Genesis, where it is written that humanbeings shall “have dominion over the fish of the sea and over the fowl inthe air and over every living thing that creepeth upon the earth.” 9According to Jewish tradition, however, at the time of creation, man wasonly permitted to eat fruit. In the Biblical test, God said:Behold, I have given you every herb yielding seed which is uponthe face of all the earth, and every tree in which is the fruit of atree yielding seed—to you it shall be for food; and to every beastof the earth . . . .10Rashi explains the phrase: “to you it shall be for food; and to every beastof the earth” to mean that the Scriptures regarded man and beasts asequals who were both to subsist on herbs and vegetables and that Goddid not permit Adam and his wife to kill any creature to eat its meat.11However, by the time of the children of Noah, the text shows that Godpermitted human beings to eat meat: “Every moving thing that livethshall be food for you, as the green herb have I given you all things.”12 InRashi’s exegesis, God’s permission to mankind to eat meat was givenonly after the Deluge; he explained that this text is God’s announcementthat everything . . . “shall be food for you—I did not permit Adam to eatmeat but only herbs and vegetables, but as for you (i.e., Noah) . . . I letyou have everything.”13Even though the Jewish Scriptures regard animals from ananthropocentric viewpoint,14 that does not prevent Judaism from beingcompassionate toward them. Jewish precepts drawn from the Biblicaltext explicitly forbid cruelty to animals. 15 For example, Exodusprescribes that animals must not be put to work on the Sabbath. 16Similarly, Leviticus dictates that “whether it be a cow or ewe, ye shallnot kill it and its young both in one day.”17 Maimonides explains thistext as honoring animal mothers’ relationship with their young:It is also prohibited to kill an animal with its young on the sameday (Leviticus 22:28), in order that people should be restrained andprevented from killing the two together in such a manner that theyoung is slain in the sight of the mother; for the pain of theanimals under such circumstances is very great. There is nodifference in this case between the pain of man and the pain ofother living beings, since the love and tenderness of the mother forher young ones is not produced by reasoning, but by imagination,and this faculty exists not only in man but in most living beings.18We can see further recognition of human responsibility to avoid needlesssuffering to animals. Biblical laws like “Thou shalt not plow with an oxand ass together”19 and “If a bird’s nest chance before thee in the way, ina tree or on the ground, with young ones or eggs, and the dam is sittingon the young ones or upon the eggs, thou shalt not take the dam with theyoung”20 are clear examples of Judaism’s attitude toward the humanetreatment of animals.21Islam also stresses the importance of kindness to animals. Thoughit is similarly anthropocentric in its attitude, Islam also advocates theprotection of animals and restrains man from being cruel to them. Thereare numerous passages in the Qur’an urging Muslims to take an interestin the welfare of nature and particularly animals, implying that allcreated life is important to Allah.22 By contrast, at least early Christianattitudes toward the fate of animals are not so clear.23 It is true that wefind notable exceptions such as Francis of Assisi (1181-1226), whoshowed a strong empathy toward animals. Yet, while generally there arefew, if any, references to animal rights in early Christian doctrines, thetexts show that many Christian writers also objected to the abuse ofanimals.24 For example, Thomas of Aquinas (1225-74) writes that hedoes not doubt the right of man to exploit animals for his own use, butstates that he opposes cruelty toward animals in order to prevent manfrom becoming brutal to his fellows.25 Perhaps because the three mostimportant religions in the Western tradition adopted this anthropocentricconcept, it has become part of the general tradition in Westernphilosophy. And, while the Renaissance and humanism brought a newvision to our understanding of man, this change fell short of influencingthe philosophical status of animals in any major Western philosophicaltraditions through the eighteenth century.
B. The Modern Debate about Humane Treatment of Animals
By the nineteenth century, however, political activists werechanging national attitudes toward the status of animals. Animalactivists spoke out for the prevention of unnecessary suffering ofanimals and demanded punishment for their abuse. Legislation was alsopassed to protect animals in some Western nations. In England, forexample, starting in 1800 there were several attempts to pass legislationprotecting animals (e.g., forbidding dog-fights and bear-baiting).Finally, in 1822, the “Horse and Cattle Bill,” the first piece of legislationspecifically intended to prevent cruelty to animals, was introduced.26Gradually, most Western-influenced countries passed laws protectinganimals in various ways, outlawing cruelty and abuse toward animals,27regulating scientific experiments 28 and hunting, 29 preventingabandonment of animals30 and protecting endangered species.31 Thenecessity of protecting animals is not seriously questioned in anymodern Western nation-state today, even while its scope still remainsunclear and the legal profile of animals is being defined even inlegislation that does not protect their rights.32Despite this consensus about the need to ensure a degree of animalwelfare there is unfortunately no consensus about the proper scope ofprotection. Those more radical in their defense of animals(“abolitionists”) debate “legal welfarists,” who strive for the protectionof animals but realize that it is not realistic to avoid at least some use ofanimals in the daily lives of human beings. Legal welfarists argue thatthe struggle for animal protection should focus on regulating humanactivities utilizing animals to diminish the number of animals involvedand the magnitude of their suffering. Abolitionists respond that legalwelfarism falls short of affording acceptable solutions, particularly onthe context of “farm factories,” which are important in the slaughteringindustry.C. Setting Aside the Question of Farm Factory Practices
It is important to distinguish the debate about ritual slaughteringfrom the question of modern farm factory practices, which do raiselegitimate concerns about the humane treatment of animals. Theproblems created by industrial animal husbandry are diverse and includeissues about the humane feeding and transportation of animals as well asthe ways in which animals are killed. All farm animals are bred to bekilled for food (or similar human uses) and unlike other domesticatedanimals, their owners’ emotional involvement or sentiments play no rolein their fate.In previous generations, the attention paid to farm animals did notstem from any concern for their welfare but from practical concernssuch as ensuring sanitary conditions for public health, 33 economicstandards for producing meat and other products, proper businesspractices, consumer protection, etc.34 The gradual move from traditionalfarming to industrial husbandry has aggravated the suffering of animalsbecause economic expectations have resulted in crowded environmentsand poor living conditions for these animals. It is from thesedevelopments that the struggle against abuses was largely born.35 In thiscontext, it is almost superfluous to cite Singer’s best known book,Animal Liberation,36 a clear manifesto against industrial husbandry. Inpointing out the ethical problems in the raising of animals for food in amodern industrial farm setting,37 Singer notes his clear opposition to anyanimal breeding, concluding that only vegetarianism can provide asolution for the inhumane treatment of animals.An important phase in the development of Western law on thetreatment of agricultural animals, which is relevant to farm factoryabuses, is marked by The Brambell Report (U.K. 1965), whichrecommended certain principles to serve as a basis for Europeanlegislation.38 Ever since this report came out, the concept known asanimal welfare has gained more public acceptance. Those who debatethese issues are generally agreed that it is not enough to prevent singularinstances of abuse but that the aim of public legislation should be toestablish decent conditions for all farm animals.39In Europe the practice of raising farm animals has in recent timesbeen regulated by the European Convention for the Protection ofAnimals Kept for Farming Purposes.40 Though the Convention was notadopted by the European Community, but rather by the EuropeanCouncil, its regulations were adopted by the Community in Directive78/923. 41 Despite the dissatisfaction of animal welfare lobbies thatbelieve that little has been done for farm animals, this directivedemonstrates that Europe has taken a positive step toward meeting thedemands for better conditions.On the other hand, U.S. law is more limited in protecting farmanimals. Farm animals are not protected by the Animal Welfare Act42and there is no unified national policy on animal welfare due to, amongother things, the opposition of the agricultural lobbies in the U.S.43We have to approach the problem of kosher slaughtering with somecare in light of these discussions about industrial husbandry becausewhile the “suffering”44 imposed by slaughtering is the same as whenslaughtering is done privately45 or in the context of traditional farming,kosher slaughtering does not entail these more universally denounced,and less religiously controversial, practices involving keeping, raising ortransportation46 of animals. Despite the firm commitment to animalwelfare of countries such as Switzerland, which bans ritual slaughter,and the importance of limiting animal abuse in industrial settings, thediscourse on ritual slaughtering needs to be clearly distinguished fromthe debates about the farm factory because of the very different interestsit entails. In order to underscore that the basic principles of humanetreatment in the raising and slaughtering of animals are shared by thoseengaged in religious slaughtering and legal welfarists, it is important tounderstand the basics of Jewish and Muslim law regarding slaughtering,a question to which we will now turn.
II. RELIGIOUS (KOSHER AND HALAL) SLAUGHTERING
Modern attempts to regulate ritual slaughtering of farm animalsvary in their understanding of what is entailed in ritual slaughtering.After describing these rituals in Judaism and Islam, we will cataloguethe various statutory approaches that European states, as well as the U.S.have taken toward regulation of ritual slaughtering, and discuss in somedepth a recent Italian Commission report on this question whichdemonstrates more understanding and sensitivity to the conflicting rightsinvolved than most national legislative debate about the question.A. Jewish and Muslim Law Regarding SlaughteringWe define religious or ritual slaughter as a procedure carried outaccording to rules originating from ancient religious laws. 47 Thereligious nature of slaughtering48 relates primarily to Jewish and Muslimslaughter, and as was indicated earlier, kosher and halal slaughtering aredone without stunning. The relevant precept originates from Scriptures:If the place which the Lord thy God shall choose to put His namethere be too far from thee, then thou shalt kill of thy herd and ofthy flock, which the Lord hath given thee, as I have commandedthee, and thou shalt eat within thy gates, after all the desire of thysoul.49As a matter of fact, Scriptures do not give details of the technique ofslaughtering—rather, they are expounded by Oral Law.50According to the Halakhah, the killing of an animal for purposes ofeating its meat must be performed by an expert 51 who severs theanimal’s gullet and wind-pipe with one slash, after making sure that theknife is sharpened according to halakhic specifications.52 Maimonidesregards these specifications of slaughtering as proof that the law calls fora painless and easy death for the animal.53[F]or as it has become necessary to eat the flesh of animals, it wasintended by the above regulations to ensure an easy death and toeffect it by suitable means; whilst decapitation requires a sword ora similar instrument, the shechita can be performed with anyinstrument; and in order to ensure an easy death our Sages insistedthat the knife should be well sharpened. [. . .] Since, therefore, thedesire of procuring good food necessitates the slaying of animals,the Law enjoins that the death of the animal should be the easiest.It is not allowed to torment the animal by cutting the throat in aclumsy manner, by pole-axing, or by cutting off a limb whilst theanimal is alive.54of slaughter among the positive commandments:[T]he 146th precept is that we were commanded to slaughter cattle game or fowl beforepartaking from their meat, which is not permitted except by the proper method ofslaughter. And the Exalted One said “and thou shalt kill of thy herd and of thy flock . . .as I have commanded thee.” The Midrash explains that the term used for slaughter isidentical to that of the sacrificial procedures. This teaches us that the gullet and windpipemust be severed for animals and at least one of them for fowl. The details of thisprecept are explained in the Talmud in its designated Tractate—Chulin.Moses Maimonides, The Book of Precepts Positive Precept # 146 (Robert Young 1849). See I.M.Levinger, Meor le-Masekhet Hulin (Guide to Masechet Chulim), vol. 1, 1 (Yerushalayim 1994).Although these texts emanate from a time when stunning was notuniversally practiced, they show a clear animal-welfare orientedapproach in Jewish thinking regarding slaughtering.For Muslims,55 there are four sources of Muslim law concerninghalal (permissible meat): the Qur’an, the hadith, 56 the sunnah57 andfiqh.58 Islamic rules for slaughtering resemble the Jewish approach inmany respects, while differing in others. Apart from the obviousdifferences in the prescribed prayers (the Hebrew benediction and theArabic ‘bismillah Allahua akbar), there is no requirement that theMuslim slaughterer should be a trained expert. According to someopinions, Muslim law is not as strict with regard to the prohibition ofprior stunning as Jewish law. While according to Jewish law stunningmay impair the perfection of the animal and not allow the consumer todiscern whether it is trepha,59 there are those who claim that the positionadopted by Muslim law is a bit different. For example, it is possible tofind fatwa accepting stunning since it is enough that the animal remainsalive. 60 The fatwa of the Mufti of Dheli in 1935 stated that it ispermissible in ritual slaughtering to stun the animal as long as the animaldoes not die during the process.61 A similar view was exposed by theRector of the Al-Azhar University of Cairo in 1982.62 Furthermore,certain authorities maintain that Muslim law permits partaking of nonhalalmeat when halal meat is not available.63 But these opinions are, toa certain extent, controversial and there are those who rely on thesedecisions as applicable only to Muslims living in countries where thereis no freedom of religion for them.64Either way, any framework for the protection of religious beliefsand practices should not be sought in the “correct” interpretation of thereligious text, especially where there is controversy. Theologicalarguments trying to adopt a narrow or broad interpretation afford no realsolution to this problem; the concern of this article is rather to explainwhy a ban on this practice may be seen by Muslims or Jews as being atodds with their faith.65
B. Modern National Laws Concerning Ritual Slaughtering
Generally speaking, contemporary nation-states regulate ritualslaughtering using three distinct approaches:
1. Some countries permit slaughter under regulations whichinclude stunning, but also to enable religious communities, i.e., Jews andMuslims, to slaughter according to their religious specifications. Thisapproach of adapting the law to the special needs of minority groups isquite commonly adopted as the most suitable way to keep the balancebetween religious freedom and protecting animals,66 as seen in Westerncountries such as France, 67 Italy, 68 Spain, 69 England, 70 Scotland, 71Germany,72 Netherlands,73 Finland74 and Denmark.75 This policy wasadopted as the European standard in the Convention for the Protection ofAnimals for Slaughter in 197976 and the Directive 93/119 of 1993—Protection of Animals at the Time of Slaughter or Killing, 77 whichdefines stunning as the proper method of killing animals with theexception of religious slaughter.78 In the U.S., the Humane Methods ofSlaughtering Act, 79 made stunning compulsory 80 but recognizedreligious slaughtering as “humane.”81 In fact, U.S. law uses the methodof kosher slaughtering as a model for religious slaughter, and otherreligions using a similar method are permitted to engage in ritualslaughter.82However, it should be noted that legislative permission to engagein ritual slaughtering does not mean that religious slaughtering officialsare free of official supervision.83 For example, in England, religiousslaughtering must take place in licensed premises under veterinarysupervision84 and in the presence of a stunner for emergencies.85 Danishlaw has similar requirements.86Second, religious slaughter is not the only exception to the standardslaughtering regulations. Italy, for example, permits slaughterers toforego stunning where the slaughtering is done for the family (and not incommercial slaughterhouse), and also when fowl are slaughtered,enshrining a distinction between large animals such as cows and smallfowl.87
2. Many countries outside Europe, some of which have tribalcustoms, take a broader view of ritual slaughter. For example, whileFilipino law deals with the protection of animals, it permits animalsacrifice for religious ends completely unconnected with consumption.The law permits the killing of animals “as part of the religious ritual ofan established religion or sect or a ritual required by tribal or ethniccustom of indigenous cultural communities.” 88 In America, severalstates also allow traditional slaughtering.89
3. A third category, which we will focus upon in this paper,consists of countries that altogether prohibit ritual slaughter not carriedout according to regulations (stunning or electric shock and so on).Currently, Switzerland and Sweden, which both lay great stress on thewelfare of farm animals, along with Norway, Liechtenstein and Iceland,prohibit ritual slaughtering.90 These national laws are influenced bynineteenth century objections to ritual slaughter, presumably directedtoward Jewish slaughter, on the basis that such slaugther causedunreasonable pain to animals. As early as 1855, the British RSPCAtried to bring about the prohibition of Jewish slaughtering because it wasnot “humane,” 91 although there was hardly any evidence that ritualslaughtering was more cruel than other methods. In Switzerland, it hasbeen forbidden by law since 1893 following a referendum. 92 Eventoday, in Switzerland there are voices that want to strengthen theprohibition by forbidding imported kosher meat, while others incountries where the prohibition is in force are urging acceptance of ritualslaughtering.93 In Sweden, the prohibition dates from 1937, and in 1988it became an integral part of the law for the protection of animals.94 InNorway, the prohibition dates from 1929.95 From time to time, otherproposals have surfaced to restrict or limit the ritual slaughtering inother countries,96 but it is unclear whether these countries will join thosethat completely prohibit ritual slaughtering, especially given Europeancalls for a new debate on the need to restrict or prohibit kosherslaughtering to prevent animal cruelty.97 Given these new calls foraction, which extend even outside of Europe, a discussion of the opinionof an Italian commission called to consider the question is worthpondering at some length.
C. The Italian Report on Ritual Slaughtering
On September 19, 2003 the Italian Comitato Nazionale per laBioetica (National Commission on Bioethics) published a documententitled Macellazioni Rituali e Sofferenza (Ritual Slaughter andSuffering), a report which is especially worth considering since itreflects current trends in European discussion of this topic. 98 Italypermits ritual slaughter, and perhaps for this reason, the approach of theComission is more tolerant toward religious slaughtering than theopinion of the Swiss Institute of Comparative Law, which tries to findjustifications for the prohibition.99The Italian Commission points out that it has already consideredthe issue of animal rights in the past, and that it recognizes thesuperiority of man which, to a certain extent, justifies the subordinateposition of animals to humans. In the words of the report, however, thisposition implies “responsibility [on the part of mankind] and does notjustify acts of cruelty to animals.” 100 In the light of these basicassumptions, the Commission believes that the primacy of human beingsin the created order leads to the conclusion that Jewish and Muslimslaughter is “an expression of the freedom of religion, a basic value ofhuman life.” In the Commission’s view, the principle of responsibilityrequires human communities to try to minimize or completely abolishanimal suffering as far as it affects all forms of pole-axing orslaughtering.The Commission emphasizes that there is a dialectical differencebetween “the respect for certain universal values and the properconsideration for the uniqueness of each individual culture.”101 In theCommission’s view, this consideration prevents a nation-state fromrejecting a custom which is deeply rooted in the culture and tradition ofa community simply because it is different from that of another religiousor secular sector of the population, even though that may be themajority. If there is no specific justification for imposing an injury on aminority religious group, each state should prefer the dignity of theother, which can only contribute to social integration, “an integrationwhich is understood as respect for the religious and cultural traditions ofthe community as long as they accord with the basic principles whichpromote a harmonious social life.”102The Commission briefly describes shechita, stressing the fact that itmust be carried out by an expert and that the animal must be in perfectcondition, i.e., not ritually unfit. It underscores that there is a reason forthe prohibition of stunning: neither Judaism nor Islam accepts stunningbefore slaughter as legitimate, since it impairs the perfection of theanimal.103 The ethical aspect of these religious proscriptions is alsoconsidered in the report, which explains that the aim of shechita as areligious act is to remind mankind that it is not at liberty to make use ofanimals arbitrarily and that their exploitation is restricted by Divineordinance. The report similarly notes the significant detail with whichthe Halakhah specifies the quality of the knife to be used for ritualslaughter, with the aim of minimizing the suffering of a living creature.The express desire in Halakhic sources to make death as instantaneousas possible is an additional factor that leads the Commission torecommend protecting ritual slaughtering methods. In particular, thereport notes, the Christian world ought to stress that freedom of religionis expressed not only by ritual but also in behaviors and actions that thefaithful believe to be obligatory. Shechita certainly takes its placeamong such actions, as it is recognized by the decision of theconstitutional court of the Federal German Republic.104The Italian Commission determines that shechita does notadversely affect the basic principles of legislation attempting to protecthuman treatment of animals so long as there is no proof that thesuffering caused to animals when ritual slaughter is used is no greaterthan animal slaughtering methods permitted by law. Because, in theCommission’s view, there are no currently reliable means to determinewhich slaughtering methods result in what amounts of suffering byanimals, it is impossible for nation-states to make unequivocalstatements on these matters. While there is an assumption that stunningbefore pole-axing or schechita causes less suffering than slaughterwithout stunning, a minority of authorities reject that assumption.Ethically, the Commission notes, all animal suffering, great or small, issignificant; but by taking a balanced view, governments considering thisissue can assign the proper importance to the freedom of religion andpermit kosher shechita under the appropriate supervision. This debatedoes not, in the Commission’s view, implicate the concerns ofvegetarians since they are against all killing of animals; rather, theimportant question is the nature of religious freedom as applied to thequestion of animal slaughter.While it is difficult to predict how Europeans will react to theItalian Commissions’ report, it is a reasoned illustration of the fact that itis difficult to adopt a clear-cut position against ritual slaughter unlessnation-states are prepared to put the protection of rights of animals on ahigher plane that the right of human beings to freedom of religion. Inthe next section, we will attempt to illustrate the hazards involved inbalancing the rights of animals with the right of religious freedom.
III. ANIMAL RIGHTS, RELIGIOUS FREEDOM AND DISCRIMINATION
The crucial problem embedded in the prohibition of ritual slaughteris that it clearly restricts the freedom of religion. From a broadperspective, the permission of ritual slaughter does not apply only toJews or Muslims, and the problem is not limited only to practitioners ofritual slaughtering. 105 Rather, this controversy implicates the basicprinciples defining the boundaries of religious freedom within modernsociety. We will show that ritual slaughtering is clearly religiousexpression as understood in the international human rights documents,and then briefly consider whether an exemption for religiousslaughtering would violate the basic principle in most secular nationsagainst the intermingling of church and state.Even conceding the importance of ritual slaughtering of religiousexpression, however, we must respond to the legal reality that religiousfreedom rights are not absolute and can be qualified where there is astrong enough state interest.106 The debate over the prohibition againstthe use of religious symbols in French public schools, such as the hijabfor Muslim girls, only goes to show that the fundamental principles of aparticular society (in this case, the principle of laicité that shapes thesecular character of France) are able to outweigh the principles offreedom of religion.107 We will argue that the prohibition of ritualshechita, ostensibly to protect animals from unnecessary sufferingcannot be isolated from the issues raised when slaughtering rules restrictthe freedom of religion of a minority group.In the next section, we will show why recognition of this right isvery important in a religiously pluralistic nation-state. This, in turn, willlead us to consider the deeper philosophical question, debated evenamong those engaging in ritual slaughter, about the nature of suffering inslaughtering and the distinction between necessary and unnecessarysuffering that drives these debates.A. Ritual Slaughtering as Religious Expression
Freedom of religion is accepted as a basic right in all Europeanconstitutions108 and has been recognized in international conventions,such as the International Convention on Human Rights (sec. 18) and theInternational Covenant on Civil and Political Rights (1966) (sec. 27).109The European Convention on Human Rights110 states in Section 9 (1):Everyone has the right to freedom of thought, conscience andreligion; this right includes . . . freedom, either alone or incommunity with others and in public or in private, to manifest hisreligion or belief, in worship, teaching, practice andobservance . . . .Clearly, the international conventions embrace more than the rightto belief, but also include the right “to manifest [one’s] religion orbelief.”111 Indeed, Section 9 (2) of the European Convention, makesclear that:Freedom to manifest one’s religion or beliefs should be subjectonly to such limitations as are prescribed by law and are necessaryin a democratic society in the interests of public safety, for theprotection of public order, health or morals, or for the protection ofthe rights and freedom of others.Just as clearly, the practice of kosher schechita falls within thecompass of the right to manifest belief, and thus, if a nation-state isgoing to abide by these covenants, it is not acceptable to prohibit koshershechita.112 To maintain, as some animal rights advocates have done,that the prohibition does not impinge on the freedom of religion becauseit does not restrict the consumption of meat but only its slaughtermisunderstands the complexity of the problem. The “religious issue”involved is not in the eating of kosher meat,113 but the actual freedom toperform shechita since shechita is not simply a way to provide permittedfood but a manifestation of a religious belief and a way of life.114In making an argument that the right to ritual slaughter must carrythe most weight, one might try to pre-empt any argument by observingthat in most countries, animal rights are not recognized while freedom ofreligion is. Hence, on a universal constitutional level, religious freedomcurrently is preferred over the prevention of cruelty to animals.However, there is a growing national trend, not yet very marked, torecognize the constitutional protection of animals, with one recentexpression of that right in Germany. 115 Reliance on constitutionalarguments to justify ritual slaughtering may be considered tooformalistic, 116 and those who strongly advocate for the defense ofanimals are not easily convinced by such positivist arguments. Thus, wewill consider whether arguments beyond these positivist arguments arevalid.
B. Does a Religious Slaughtering Exemption Threaten the Separationof Church and State?
If we were to catalogue the arguments against permitting anexemption for ritual slaughter, the most common argument againstreligious exemptions—that neutral laws are necessary to ensure thesecular nature of the state—does not seem apposite in the case of ritualslaughter. No current advocates of a ritual slaughter ban claim thatprohibition of ritual slaughter is necessary to preserve the secularcharacter of society or to ensure the separation of state from religion.Indeed, there seems to be no correlation between secularism andreligious slaughter prohibitions: a number of countries that arehistorically fiercely secular and separate religion from state (U.S. andFrance, for example) are permissive with regard to ritual slaughtering,117while other countries such as Sweden, where formal separation betweenChurch and State was accomplished only a few years ago, completelyprohibit ritual slaughtering.However, if we were to consider the question of ritual slaughterfrom a separationist perspective, the most logical conclusion we mightdraw is that separation would entail non-interference by the state intoreligious practices such as ritual slaughter. Moreover, whensecularization affects only minorities within the society, particularlywhen those minorities have little chance of gaining political ascendancy,we must recognize that the ritual slaughter ban does nothing by way ofseparating church and state, but rather has the sole effect of restrictingthe basic freedoms of the minorities. Because the acceptance of a fullysecularized society which allows no exception for religious differencecan easily lead to the negation of pluralism and become a means forminority persecution, the question of why and to what extent therestriction is justified must be explored.Part of the problem in understanding the ritual slaughter ban is thatit rests upon unreflective majoritarian assumptions about the nature ofthe act of providing food to the community by slaughtering animals.Since shechita is in no way a religious issue for Christianity, thedominant religion in Europe, many Christians may find it hard tocomprehend that the Jewish and Muslim view of shechita isfundamentally different, that it plays such an important part of theirreligious life.
C. Does Ritual Slaughtering Invade the Rights of Animals?
One way to approach the problem of ritual slaughtering is todescribe it as a conflict between two rights-holders, the religiousindividuals and the animals that are being slaughtered. If we pay carefulattention to the language of the European Convention on rights, weought to ask who, then, are these “others,” whose rights and freedomsshould be protected, and whether animals are included among these“others.”118 This requires us to answer a basic question—is it possible atall to talk about “the rights of animals”? While it is not our intention toadopt a position about the question whether animals can be consideredholders of rights at all, and a deep analysis of the philosophical issuesinvolved is beyond the scope of this paper, it is necessary to advancesome remarks on the topic, since it is not possible to see the guidelinesof this debate without them. Yet, as we will show, we do not think thatthe determination that animals are rights-holders ultimately contributesto the solution of the problem of ritual slaughtering.The debate over whether animals may be rights-holders is nothingnew. We might begin with Descartes (1596-1650), who held theabsolute view that animals had no rights whatsoever, and comparedanimals to machines (automates) without emotions. 119 In his view,animals were incapable of suffering in the human sense, or, in any case,they had no consciousness of suffering, because they had nothing butreflexes.120 Descartes’ position has been repeatedly assailed and todayno one can seriously support it.121 A more balanced view, which takesinto consideration the need to have compassion for animals, is expressedby Kant, who recognizes that human beings have obligations towardanimals, but no direct duties. In his view, animals have no selfawareness,and they are not regarded as an end in themselves but asmeans for the purposes of man.122During the nineteenth century, Bentham took into consideration thesuffering of animals123 but did not consider them holders of any rights.It is during the twentieth century that we see a more radicalphilosophical trend that is not content with the protection of animals(legal welfarism), but proposes to recognize a special rights-bearingstatus for animals. We note the views of two leaders of the intellectualmovement supporting the cause of animal welfare, Peter Singer, whoargues that utilitarianism requires taking into consideration the interestsof animals, 124 for “otherwise we fall into speciesism,” 125 and TomRegan, the most prominent advocate of what we might call “the doctrineof rights.” 126 According to Regan, both human and non-human“subjects-of-a-life” have a basic moral right to respectful treatment, haveinherent value, and thus enjoy an equal moral status.127 Accordingly, inhis view, animals should be considered to have inherent rights. Stillother scholars advocate against any exploitation of animals,128 thoughthey derive their opposition to abuse of animals from differenttheoretical groundings.129On the other side, there are many philosophers who deny theconcept of animal rights arguing that in order to have rights, one mustbelong to “the same moral community” as those who have the authorityand power to recognize rights, and only those belonging the samecommunity are entitled to rights. In this view, since animals do notbelong to the human moral community, they do not have rights.130 Stillothers, particularly those who hold the “choice theory of rights,” believethat in order to have rights, an entity must have the capability ofconscious choice between options for action and intentionally implementthis choice. For them, an animal cannot choose; therefore, it has norights.131There are many potential inconsistencies in the arguments of thosewho deny a special status to animals, as well as those who want to treatthem as equal to human beings in terms of rights. For example, thosewho claim that one who has rights must be able to implement themcannot fully account for the fact that many human beings (babies, thementally handicapped, etc.) cannot themselves make a legal appeal fortheir rights and yet most societies would hold that they still have rights.On the other hand, the recognition that some human beings not capableof conscious choice or of advocating for their rights still have rights doesnot require that a dog or a cat must always be treated under the law as ababy or as the mentally handicapped. The granting of rights to animalsdoes not entail the conclusion that they have the same rights ashumans132 or suggest that their rights are more absolute than humanrights.133 To make a facile equation between the two is tantamount toanthropomorphism134 an approach that surely should be avoided.135Notwithstanding the difficulty in assessing the moral rights ofanimals, and even assuming that they have no natural rights similar tohuman beings, there are cases where the law seems to recognize thatanimals have a certain sort of rights. In our view, however, thisrecognition in positive law cannot contribute very much to finding aclear framework for defining the status of animals. A positive lawapproach creates even more theoretical difficulties because to say that ananimal has only those rights recognized by positive law leaves room toquestion whether there are animal rights not yet recognized by law. Thisapproach leads to cumbersome discussions involving distinctionsbetween “natural rights” and “positive rights,”136 and will add nothing tothe effective protection of the animals. Such debates simply divert usfrom finding the criteria we should use to determine whether certainanimals are owed certain treatment by humans. The protection ofanimals should not become a debate about rights. As Dworkinexplained, to talk about having rights is like claiming to have trumpcards that enable rights advocates to control government or individualaction toward them.137Even if we denied the recognition of animal rights, this does notmean that human beings would have an unlimited privilege to harmthem or expose them to cruelty. Even if animals have no rights, thatdoes not entail that we deny our obligations to them.138 For example,Peter Singer, a utilitarian, is reluctant to use the concept of “rights” tojustify the obligations to defend and protect animals.Others have argued that the reason we protect animals is notbecause they have rights, but because we are protecting feelings of thosehumans who suffer from the suffering of animals,139 feelings which, ofcourse, are shared by Jews and Muslims. However, governments musttake the greatest care in moving from a focus on cruelty to animals to afocus on protecting the emotions of humans who suffer with them, notbecause it is improper to take into account the distress caused to humanswhen animals suffer, but because this interest does not always constitutea sufficient reason to impinge upon human freedom, particularlyreligious freedom, and specifically the religious freedom of minoritieswho have different views about the religious significance of animalslaughtering practices.140Even if there were a good case for comparing religiousconsiderations to the emotional response of animal advocates, thoseadvocates must produce very strong reasons indeed to explain why thefeelings of someone who suffers when animals suffer should bejuridically preferred over the right of someone to act according to hisreligious beliefs. From the point of view of the secular state, it might bepossible to suggest that religious “feelings” are the same as culturalsentiments or national traditions, such as bullfighting in Spain.141 Evenif it were possible to equate religious “feelings” to cultural or individual“feelings,” however, in the ritual slaughtering case we are consideringthe majority’s imposition of its religious beliefs and practices on aminority, rather than, as in Spain, the animal protection minority’sadvocacy to combat the practice against a democratic majority’sdecision to preserve the tradition.142 It is that majority-minority rightsdynamic that is particularly problematical, as we will see.
IV. RITUAL SLAUGHTERING AND MULTICULTURALISM
In a multi-cultural democratic culture, it is very critical that thereligious faith of particular groups is regarded as a valuable expressionof particularism143 that should be respected by the majority. For onething, sensitivity to the value of religious particularism will requirereligious majorities to come to understand what is involved in ritualslaughter and to prevent the ritual alsughter problem from being framedas a clash between the universal value of cruelty to animals and theparticularist views of Jews and Muslims.144 Jews and Muslims, who areminorities in other societies, also share universal values about theprevention of cruelty to animals and simply differ with animal rightsadvocates about the definition of cruelty and the relationship betweenreligious obligation and duties owed to animals.
A. The Need for “Legal Accommodation”
Religious slaughtering implicates questions about the definitionand value of healthy pluralism in secular societies. In one view ofpluralistic societies, the so-called cosmopolitan alternative, 145 thecultural make-up of a society is composed of different components.National concepts of rights are components or expressions of such aculture, so that the range of rights and their relevance to social lifedepends on the cultural codes which define what is permitted and whatis forbidden.146In most modern countries, these codes signal democratic leaders toadopt a system of accommodations to permit the minority to carry out itsreligious obligations, such as ritual slaughter, through what is termed the“rule-and-exception approach.”147 This means that after the majority hasdecided upon the appropriate regulation applicable generally to allpersons engaged in the practice (in this case, the requirement of stunningthe animal prior to slaughter), the law provides an exception whichpermits the minority to deviate from the ideal practice in order torecognize the minority’s interests, beliefs or cultural background as longas the society’s fundamental principles and critical concerns, such aspublic order, are not seriously affected. This rule-and-exception systemis part of what might be called the multicultural concept of social life.148In this system, accommodation is practiced quite extensively, 149especially in matters of religion.150Of course, this does not resolve the problem of whether ritualslaughter should be permitted as “an exception.” Just as one citizen insuch a culture is entitled to support pluralism, freedom of religion andthe need to preserve the primary ways of life that constitute theminority’s identity, so another may maintain that the prevention ofsuffering to animals is one of the prime values of society. Accordinglythere is no reason to permit injurious practices simply because they arerooted in a minority religion, even conceding generally the “rule-andexception”system. We will discuss this issue below.In the case of religious slaughter, the need for accommodationstems from the fact that these traditional religious beliefs about theproper method of slaughtering cannot be harmonized with thepreferences of the majority that require stunning. At this juncture, wewant to re-emphasize that the ritual we are discussing implicates aminority right, and not just an eating preference. Although it may annoyanimal protectors and vegetarians alike, there is no escaping the fact thathuman society exploits animals for many purposes, including food,151and human utilization of animals for their purposes is accepted aslegitimate, at least in the eyes of the majority of the population152 that isnot vegetarian. However, let us assume that somewhere the “VegetarianParty” wins the elections and as part of a change in the legal regimefavoring animals vegetarianism is defined as an obligatory lifestyle forall citizens and the slaughter of animals is absolutely forbidden. No onecan deny that this step is good for animals—they would then live in asociety where they do not encounter suffering from slaughter and aculture that does not kill.153 Yet, while part of the population, those whoare vegetarians and those who are willing to become vegetarian, willaccept this directive, the non-vegetarian minority that lost the electionswill find it unreasonable and unjustified.To make an analogy to the current situation in countries whichpermit animal slaughtering but only using stunning, Jews or Muslimscould say that this prohibition puts upon them a burden like the burdenplaced upon meat-eaters in a vegetarian society. They will argue, likethe meat-eaters, that this is a burden that they should not have to bear forthe sake of protection of animals. Concededly, the dilemma aboutanimal suffering can exist even for the observant Jew who may find thatindeed, ritual slaughtering causes too much suffering to the animal.154Certainly a Muslim or Jew who must observe the religiouscommandments and feels that shechitah causes too much suffering thenhas no choice but to become vegetarian.155 However, this choice shouldbe made freely—indeed, a Jew might argue that this choice is requiredto be made freely to be religiously significant—just as no other person inthe society is coerced into vegetarianism.156 In this sense, while eatingmeat is not an obligation157 not being forced to be a vegetarian may bestill understood as a right.158 Thus, we do not accept the claim made byauthors such as Barry, that eating kosher is tantamount to choosing meatof an expensive quality and that it can be foregone by an observant Jewor Muslim in favor of “lesser quality meat” or that the prohibition doesnot hamper freedom of religion but only the ability to eat meat.159As this analogy suggests, unfortunately, sometimes it seems thatthose who oppose ritual slaughtering use their scruples about thesuffering of animals as an excuse not to enter into a dialogue withreligious minorities about the limits of tolerance in liberal anddemocratic societies.160 Similarly, we would reject the claim that thestate prohibiting ritual slaughter is only being neutral in that it isprohibiting every practice that causes suffering to animals, regardless ofwhether the motivation is religious, under accepted standards of theprevention of cruelty to animals. According to the neutrality principle,in their view, religious slaughter should be forbidden just like cockfightingand similar “sports.”161 However, not only does the factualanalogy between religious slaughter and cock-fighting seem to us to beextreme—and there is good reason to distinguish between Jewish andMuslim slaughter and sporting rites that kill animals—but the neutralityprinciple violates the basic values of multiculturalism that we areadvocating.Of course, we concede that multiculturalism does not grant alicense for any and all behaviors of religious minorities, and anyparticular society is not obliged to accept all the values of other culturesthat contribute to its population. Nor should every religious or mysticbelief be a justification for cruelty to animals. 162 We realize thatmulticulturalism debates can quickly deteriorate to cultural relativism,and we do not mean to suggest the fact that a particular practice is rootedin religious belief justifies any injury to animals. We do not think thatritual slaughtering should be justified by an argument from moralrelativism, and do not call for moral anarchy in this particular matter.163The accommodation of Jews and Muslims may open the gates to allsorts of considerations regarding traditions and usage. Just as, forexample, the prohibition of whaling is waived for certain aboriginalpeoples in order to conserve their tradition with appropriate limits,164 sowe concede the propriety of limits on ritual slaughter, including the needto improve animal welfare.Though we respect those who turn to vegetarianism to avoidanimal suffering, it is important to separate the concern from animalsuffering from other concerns at issue in this case which are unrelated tothe struggle for animal welfare. As we have suggested, given that thecountries we review have not adopted mandatory vegetarianism as thenational standard, the sweeping prohibition of religious slaughter isproblematic both because of its results and also because it is based uponan unjust distinction based on religion which also is not rational from theaspect of cruelty to animals. Indeed, we think that the way that thedebate about ritual slaughtering is conducted may lead to a distortion ofthe discussion about animal suffering. As we will discuss, theprohibition on religious slaughter actually adversely affects the principleof the prevention of cruelty to animals, or more accurately, runs counterto the need to clearly define the limits of cruelty to animals in two ways.First, as we will discuss in Part B, the prohibition of religious slaughtercan act as a subterfuge for attempts to harm religious minorities, usingthe “banner” of preventing cruelty to animals to justify religiousdiscrimination. The use of this issue to justify religious discriminationcan create a backlash against the struggle for animal welfare or animalrights by those who are suspicious that it is being used as a pretext tocover discriminatory intentions by the majority. As long as thedefinition of suffering involved by slaughtering is based on differentconsiderations than those used in other cases, there is the potential riskof raising increasing suspicions about the laudable goals of thosestruggling for animal welfare (or animal rights). Second, as we willdiscuss in Section V, the complete ban on religious slaughter does notdistinguish between religious practices which are actually inhumane andshechita, which is in fact a form of humane slaughtering.
B. Prohibition of Ritual Slaughtering: Does it Create Discrimination?
With regard to slaughtering, there is currently no way to justify arealistic abolitionist position since the majority of the public accept thenecessity of killing animals for food. But there is clearly a need to adopta regulatory policy, so that slaughterhouses will provide more acceptableconditions for animals, notwithstanding that, or precisely because, theyare going to be killed. The question is what values and orientations aregulatory framework should have, and what interests it should prefer.Animal protection regulations are bound to impinge on the interests ofsome sectors of the population, particularly those who will bear theeconomic effects of regulation. For example, regulations that specifyhow meat must be kept for sale in shops impose expense on shopowners,which they might consider an illegitimate restriction of their ownershiprights and their freedom of occupation. Similarly, a prohibition againstforce-feeding geese that occurs to produce pate of a certain kind andquality hurts farmers who make a living from the practice.165 But theserestrictions are different from the religious slaughter prohibition,because they apply to all shopkeepers and all farmers regardless of theirreligion or nationality, while the prohibition against religious slaughterapplies only to certain groups with particular religious identities.Using the ruse that one is attempting to protect an importantvalue—the prevention of cruelty to animals—in order to attack aminority is not such a difficult thing to do and even if lawmakers arewell-intentioned, the prohibition of ritual slaughtering will still fallunder a certain degree of suspicion as reflective of anti-Jewish or antiMuslim sentiment, so we should be cautious before accepting argumentsat face value or conceding them too quickly.
1. Persecuting Minorities and Antisemitism
Any regulatory framework that prohibits ritual slaughtering islikely to be infected with elements of religious discrimination166 since itis easy for those who would use the cloak of animal protection for otherends, such as attacking those whose religious beliefs differ from theirown. One can see such examples in other contexts, such as when atenant’s keeping pets is used as an excuse for evicting him because thelandlord does not like him,167 or when a local population objects to adam that interferes with the status quo in their community using theexcuse that they are protecting fish that are in danger of extinction.168Certainly today, instances can be found where those opposingkosher shechita have a clear anti-Semitic (or anti-Islamic) ideology.Though this may not be generally true, some opponents of kosherslaughter tend toward an ideology historically tainted with anti-Semitism. As we have pointed out before, the decrees against Jewishritual slaughter began to be common in the mid-nineteenth century, andthere are those who argue that behind the prohibition in Switzerland169and Sweden,170 it is possible to discover anti-Semitic motivations.While there is room to discuss whether anti-Semitic or anti-Muslimsentiment is behind the growing movement to prohibit ritual slaughter inEurope, we prefer to avoid this particular discussion and assume that theprohibition in Switzerland and Sweden were adopted for reasonsunrelated to anti-Seminitism. Indeed, it would be equally problematicalto go to the other extreme and suggest that every attempt to preventreligious slaughter is an expression of racism or xenophobia. The onecase where it is difficult to deny the anti-semitic motivation of theprohibition against ritual slaughter is in the case of the Nazis. The directconnection between anti-shechita legislation and antisemitism wasclearly expressed in the late Dr. Zerach Warhaftig’s article TheHistorical and Legal Battle over Jewish Shechita.171 In Germany, a kindof “scientific antisemitism” evolved which formed the theoretical basisfor the “final solution.” The pretexts and special pleading againstshechita found in the Nazi state have their roots in hatred for Jews andthe Torah and (in Russia particularly) economic jealousy. The concernfor the prevention of cruelty to animals was very selective and did notapply to killing animals outside the slaughterhouse, for example, to poleaxingpigs and to hunting. But it did apply to slaughtering fowl, wherethere is no issue of suffering.172The tragic situation which ensued from the use of the ritualslaughter prohibition to separate and punish Jews found expression inthe works of many rabbinical authorities at that time. It is well-knownthat observant Jews simply went without meat that came from a stunnedanimal during the Nazi period.173 Though we cannot explore the fullHalakhic argument, we might cite the words of Rabbi Uziel thatunderscore how this demand was used to offend and injure Jews:It is perfectly clear that the phrase “prevention of cruelty toanimals” is nothing but a pretext to attack the Jews wherever theylive, to make them change their religion or to cause them towander from country to country in their Diaspora. If they werereally concerned about preventing cruelty to animals, they wouldnot constantly insult the whole people of Israel with curses andmockery, shed their blood and embitter their lives and try to killthem. There should never be worse cruelty to human beings thanthere is to animals at the moment of shechita.174Similarly, the first volume of the Responsa “Seridei Esh” of RabbiJ. Weinberg is devoted to the discussion of the Rabbinical authorities onstunning and their decision to veto it. Rabbi Jehiel Jacob Weinberg175was one of those people who felt the immense responsibility of being arabbinical legal authority during the tragic time of Nazism. His wisdomand sensitivity led him to reject compromise, but he was very consciousof his obligation to the sick and to simple Jews who could not alwayswithstand the terrible trials of the time:They are simply looking for an excuse to add another insult to theTorah and another way to oppress our people. The Sages ofblessed memory have unanimously commanded (BT Sanhedrin74) us that at a time of anti-Jewish decrees by the regime, evenconcerning the smallest matter, a Jew should rather give his lifethan transgress the Torah. It is superfluous to state that a Jew mustnot eat meat (that is not kosher) (Shulhan Arukh YD/157) and hemust do everything in his power not to give in to these evil decreesand in this way “sanctify the name of God.” The oppositebehavior is considered blasphemy as the Rabbis say, “he who actsaccording to the enemy’s laws is like one who raises his handagainst the Torah of Israel.” (Shulhan Arukh HM/26)176Rabbi Weinberg continues to describe his own personal arduousstruggle with the problem:I knew from the outset that none of the great men of Lithuania andPoland and the other outstanding personalities, the leaders ofOrthodox Judaism would ever agree to permit any change in thetime-honored form of shechita, adhered to in Israel for generationupon generation. As for me, my heart told me not to approach thisserious matter, the very foundation of Jewish life. Many times Itold the righteous teacher, Rabbi Ezra Munk, the Rabbi of theAdas Yisro’el congregation of Berlin who was also the head of theshechita board of Germany that we had no right to look for waysto permit changes in the ancient form.177 The very assertion thatshechita causes suffering to animals is a painful attack on thehonor of the holy Torah, which was the very first to cautionagainst cruelty to animals. In the end the hatred and cruelty ofthese people will become clear to all. They wish to starve Jews todeath with their false, pretended compassion for animals.178Due to demographic changes in Europe, the debate that onceexclusively affected Jews is now affecting Muslims as well. Muslimcircles are maintaining that behind the attempt to forbid Muslimreligious slaughter lie tainted motives with an intention to offendMuslims. 179 We must be concerned about the possibility that suchprohibitions were framed in order to drive people from their newhomelands in Europe.The United States has faced this very question in Church of LukumiBabalu Aye, where a religious majority used the pretext of compassionfor animals in order to attack a minority religious group that they wishedto drive from their community. 180 Notwithstanding the differentcircumstances, including the particulars of the relationship betweenreligion and state in the U.S., the decision helps us to understand theproblem in a wider context. A sect called Santeria, whose faithoriginated in Africa, came to Cuba with slaves imported for Americanmarkets. Their religion is a mixture of Christian and pagan practices;and as part of their ritual, believers first kill animals (fowl, ducks, hares,sheep and so on) in a symbolic sacrifice and then eat them.181 A groupof members of Santeria settled in Hialeah, South Florida. Theirreligious way of life, and perhaps some of the members, offended thelocal populace. 182 The municipality passed an ordinance selectivelyforbidding ritual killings of animals in the manner of the Lukumi BabaluAye Church, while permitting kosher slaughter, the slaughter of animalsfor food by mainstream licensed facilities, and other animal killings.183The Lukumi Church claimed that the real aim of the ordinance was toprevent them from living in Hialeah in violation of their right to FreeExercise of Religion, and convinced the the Supreme Court that, indeed,they were being discriminated against because of dislike of theirreligion.184 Even though, arguably, the practice of animal sacrifice wasproblematical, since the municipality did not exhibit concern for thehumane treatment of animals being slaughtered in other contexts, theCourt accepted that the purpose of the ordinance was to drive the sectfrom the city. One wonders whether the Court would have reached adifferent decision had the city really evidenced its true concern foranimals.Even carving out an exception for kosher and halal slaughteringinvolves questions of the limits of slaughtering regulations. We mightnote that the U.S. Supreme Court compared the Santeria rituals withkosher shechita, and next ask whether it follows that protection ofkosher shechita and halal must necessarily imply the carving out of anexception for the animal sacrifice practices of other faiths.
2. Religious Slaughtering Exemptions and Discrimination BetweenMinorities
When governments are attempting to devise slaughteringexemptions, they need to consider two sorts of religious freedomdilemmas. One of them which the Lukumi Babalu Aye case raises, assuggested, is whether the state may permit the slaughtering practices ofsome religious minorities and not others without engaging indiscrimination. The second is the situation in which members of a
religious minority are themselves in conflict over proper religiouspractice, which we will consider in this section.a. Minority vs. Minority Rights in a Religiously Pluralistic StateStates that are considering exemptions for ritual slaughtering mustbe serious about the need to ensure equality between minorities and notdeny one minority rights enjoyed by another minority. Some countrieslike Germany, for example, accept Jewish slaughtering but are morereluctant to exempt Halal.185 This distinction may, on its face be quiteunderstandable. First, the German public is particularly sensitive to theneed to ensure religious freedom to Jews as a consequence of the traumaof the Holocaust.186 Second, Muslims in Germany clearly outnumberJews187 and therefore, the potential for animal suffering is more manifestin the case of Halal slaughtering. At this juncture, as we will discussfurther, the Constitutional Court of Germany has not accepted thesedistinctions as a basis on which to treat Muslim slaughtering differentfrom shechita.However, the prohibition of religious slaughter is not confined toMuslims or Jews but can also affect other religions not so well-known inEurope or small religious groups which have only a loose structure,which raises the question of their entitlement to an exemption as well.Although in Church of Lukumi Babalu Aye,188 shechita was comparedwith the Santeria ritual, in the end, the Supreme Court did not have todetermine whether the distinction between shechita and the Lukumiritual could be justified under neutral criteria because it invalidated theordinance based on the city’s intent to discriminate against followers ofthe Church. Smaller religious groups might argue that the exemptiongranted Jews and Muslims should be interpreted as discriminationagainst cults or sects whose particular method of slaughtering animals isan expression of their religious feelings, or as discrimination in favor of“large” religions and against “small” ones.189 To be sure, one mightjustify Jewish and Muslim slaughtering practices as centuries-oldtraditions in European countries, rather than strange new customsintroduced by new immigrant groups, but this is no basis to justifydistinctions between religions, any more than the size of theirmembership can be used to do so. Accordingly a small religious group,even if it has recently arrived, should be entitled to its own ritualslaughter as long as it abides by the same rules applied to Jews orMuslims, i.e., that the slaughtering is done under supervision with thesame permit, and conforming to the same standards for the prevention ofcruelty to animals.However, freedom of religion does not justify an attack on basicvalues including the respect for animals. If we want to avoid cruelty toanimals, we need to distinguish between slaughtering for consumptionand all other kinds of “ritual” killing involving esoteric practices. Theacceptance of killing of animals for food is necessary, given that mostpeople do not accept vegetarianism as a way of life, but it is nottantamount to accepting every type of animal killing based upon aminority’s faith. The line between acceptable and unacceptableslaughtering must be guided by the basic values of the society regulatingit, and it is not problematical for practices accepted as valid in onesociety to be condemned in other societies if they violate fundamentalnorms of that society.190b. Minority within the MinorityA second problem in establishing ritual slaughter exemption, whichmight be termed the “minority within a minority” problem, relates to thefact that religious minorities might not be cohesive in terms of theirviews about the methodology of religious slaughter or, indeed, who isauthoritative in establishing mandatory religious practices. In manycountries, minority religions are represented by a central body in theirrelationships with government authorities. In France, for example, in1995 the government recognized the Great Mosque of Paris as the onlybody qualified to appoint Muslim slaughterers. This governmentacknowledgement was opposed by those believers who did not acceptthe Great Mosque’s status as sole authority for slaughtering.191In France, the umbrella organization for slaughtering practice forthe orthodox Jewish community is the Association ConsistorialeIsraelite de Paris (ACIP).192 However, some years ago, the orthodoxorganization “Sha’arei Shalom” applied for permission to slaughter intheir own, slightly different way to ensure what they style “glatt kosher”meat; but the government did not consent to recognize them, since thegovernment had already granted an exclusive license to theAssociation.193 Sha’arei Shalom brought this case to the European Courtof Human Rights, where the French government argued that theAssociation represented many more Jewish members than Sha’areiShalom, 194 and that Sha’arei Shalom’s reasons for asking for theexemption were partially economic, because they wanted to undercut theAssociation’s prices. In addition, the government maintained that it didnot interfere in the internal affairs of a religion and that the Orthodoxhad other means at their disposal for obtaining glatt kosher meat.The European Court of Human Rights reviewed the Frenchregulations in light of the European Convention on the Rights of Manprovisions on freedom of religion and the principles of traditional koshershechita relative to those of glatt shechita. The majority on the Courtconcluded that the French were within their rights in refusing torecognize the glatt shechita of the Sha`arei Shalom and in giving ageneral permit to one agent for the Jewish community as a whole. TheCourt confirmed that religious shechita was included in Section 9 of theConvention, which affirms the right of practical expression of religiousbelief, and concluded that the exclusion of stunning provided by FrenchLaw adequately ensured the freedom of religion. At the same time, theCourt held that the Sha’arei Shalom orthodox community could onlyclaim injury if it could not obtain glatt kosher meat. In this case, glattkosher meat was readily available from Belgium195 or by means of anagreement with the Association, the umbrella organization to which themajority of French Jews belonged.In our view the minority opinion in this case, however, betterexpresses the principles that define freedom of religion and conscience.This opinion held that withholding permission from Sha’arei Shalom toengage in glatt shechita ran counter to the basic freedoms set down bythe European Convention. The minority judges, noting that it wasinsufficient to say that orthodox Jews of Sa`arei Shalom could obtainglatt kosher meat in other ways, held that the fact that the petitionerswere a minority within the minority community did not deny them theright to be considered a religious body. The fact that the FrenchGovernment might prefer to deal with representative bodies was not theissue, for Sha’arei Shalom did not challenge the status of the ACIP;rather, the permission to pursue a certain religious activitiy, glattshechita, was at stake and its denial constituted discrimination. In theminority’s view, permitting a second method of schechita couldcertainly not interfere with public order.We recognize that the way that the majority in this case chose tograpple with the problem was probably guided by the same principles asin other cases where the Court has preferred not to intervene in thedecisions of any specific country denying religious freedom claims.Indeed, some maintain that the European Court of Human Rights is notvery enthusiastic about applying Section 9 of the Convention; and as aresult, the Court either avoids dealing with religious freedom petitions orsides with national governments on religious freedom matters.196Nevertheless, in this particular case, it seems that the Court leanedtoward an interpretation that was too restrictive by granting religiousrights only to the central stream of orthodox Judaism in France. Theresimply does not seem to be any evidence that recognition of the rights ofother streams of Judaism to carry out their religious rituals according totheir own beliefs would harm the public order in France, as the Courtconcluded, or that recognizing the rights of Sha’arie Shalom to engagein glatt kosher slaughtering would cause more suffering to animals,since there is no difference between ordinary kosher shechita and theultra-orthodox with respect to this issue. Even if this decision wasintended to square with other precedents of the European High Court byleaving more “room to maneuver”197 to the individual countries withregard to local conditions, as the minority report notes, this legitimateconcern cannot substitute for the proper defense of religious pluralismwhich is at the foundation of a democratic society.We might compare the French decision to the more protectivereligious freedom decision handed down by the Constitutional Court ofGermany on the religious slaughtering question.198 In this case, a SunniMuslim owned a butcher shop in the town of Hessen, and performedhalal under a permit for many years. In 1995, this permit was revokedby the Federal Court of Administrative Affairs after it received anauthoritative opinion from the University of Cairo that a Muslim livingin a non-Muslim country is not obliged to eat halal meat.199However, the University of Cairo opinion is not universallyaccepted by Muslims, 200 and was not accepted by the butcher shopowner, who argued that the prohibition of slaughtering not onlyimpinged on his freedom of religion (and that of his customers) but alsoon his freedom of occupation. The Constitutional Court accepted hisplea, stating that religious slaughtering was “religious expression” andtherefore deserved protection in accordance with the principles of theGerman Constitution, whether or not the petitioner was a Germancitizen.201 The German judges stressed the difficulties that might arisefor the shopkeeper himself and for his customers who followed hisbeliefs, irrespective of the fact that alternatives, such as imports,202 couldalleviate the religious conflict in this case. The Court also viewed it asinappropriate for a secular court to consider and resolve differencesbetween the various streams of Islam (e.g., Sunnis and Shiites) withregard to the importance, significance or scope of obligations attendingreligious slaughter. For the Court, it was enough “that the claimantbelonged to a Muslim group which could be distinguished from otherMuslim groups with regard to its religious convictions” onslaughtering.203 Interestingly, the Court vaguely implied that it would bepreferable not to make an unequivocal statement about whether stunningdid indeed cause less suffering to the animal than religious slaughtering.There are some voices that argue that the judgment could lead toviewing/slaughtering without stunning as the norm and not theexception. 204 Although this may be a somewhat far reachinginterpretation of the judgment, it is not unreasonable to ask whether theCourt’s decision does not leave a loophole that would permitslaughtering that causes suffering to animals, in derogation of legislativeintent. Since the German Constitution has been revised to establish theresponsibility of the State for animal protection,205 we can predict thatthere will be further developments in this controversy in the comingyears.There are significant enough differences between the French andGerman constitutional circumstances that a clear conclusion about whatthese cases might mean for religious slaughter is difficult to reach. Forexample, the juridicial question, “What is a ‘religious community?’”never arose in France as it did in Germany as a result of Section 137 ofthe Weimar Constitution still in force under the Basic Law of 1949.206Similarly, the French case deals with a petition to grant a permit in thefirst instance to an additional religious body, while the German caseinvolved the cancellation of a permit that the owner and his customershad relied on to fulfill their religious obligation. Moreover, the case ofSha’arei Shalom involves a dispute entirely within the confines of theJewish community, and the French court’s opinion might charitably betreated as an attempt to reconcile the halakhic differences between themajority and the minority. In the case of the Hessian butcher, bycontrast, the German Court was protecting the rights of a minority groupagainst the authorities who were denying those rights.207 In both theFrench and German judgments, the burden of the decision rests on theissue of the freedom of religion (and the freedom of occupation, in theGerman case), but these Courts interpreted that right and its priority asagainst animal welfare differently. While the German ConstitutionalCourt did not ignore the special status of animals in German law,including the special status that Section 90a of the Civil Codex accordedthem,208 in the end that Court preferred the freedom of religion andconscience and the prevention of religious discrimination as the mostimportant important concerns of the state. In the final analysis, theGerman Court’s approach seems more liberal and tolerant towardminorities, and more respectful of religious liberty because it avoidsinterpretations of religious precepts which are really the province of thereligious authorities and not the Government.In summary, it seems clear that the prohibition of ritual slaughterimpinges upon the freedom of religion and protection of religiousslaughter is required to prevention religious discrimination, as both theGerman and French courts imply in their opinions. However, both casesseem to stand for the proposition that legal permission for religiousslaughtering is entailed in the concept of freedom of religion and ofprevention of religious discrimination, even though it might causeslightly greater suffering to animals. Therefore from the point of viewof animal defenders, these decisions could be criticized not only becauseof the priority that the courts have placed on religious freedom over thesuffering of animals, but because the fact of suffering does not play amajor role in these opinions.We believe that it is important not to neglect the suffering ofanimals but it is clear that the prohibition of ritual slaughtering impingesupon the freedom of religion. The point is that traditionally the problemof ritual slaughtering is analyzed in terms of freedom of religion and hasnot considered the question of the suffering of the animal. In our view ifwe analyze the question of suffering of the animal according to thepatterns which dominate the field of animal protection, the contradictionbetween the two approaches is not as great as it may appear. It is to thisissue that we will next turn.
V. SOLICITUDE FOR THE SUFFERING OF ANIMALS
The argument for prohibition of shechita is based on the contentionthat it causes unnecessary suffering to the animal. By contrast, othermethods of slaughter, most prominently the practice of stunning animalsbefore slaughter, are called “humane slaughter.” However, we willshow that arguments that kosher shechita, at least, is not “humane” aremisplaced.
A. “Humane” Slaughter
The phrase “humane slaughter,” which is common in the U.S.209refers to methods of slaughtering involving minimal suffering toanimals. But the use of the word “humane” with regard to slaughteringanimals is problematical. Animal advocates would ask, can killing anyanimal be called “humane”? 210 Surely, the very act is cruel,“inhumane”!211 However, unless we believe in strict vegetarianism,212there is no way of avoiding suffering to animals if we wish to eat meat.Therefore, the question that political communities must face is whatmethods of slaughtering are acceptably “humane,” given that we doslaughter animals. We will attempt to describe shechita as “humane” bydrawing on scientific and ethical criteria,213 recognizing that science isevolving much more rapidly than ethics.214
1. Is the Question of Humane Slaughter a Question of Science?
Jews have traditionally regarded ritual slaughtering as less cruelthan other methods. Proponents of a ritual slaughter exceptionsometimes argue that there is no scientific way of determining that othermethods, such as stunning or electric shock, cause less suffering toanimals than kosher shechita. Most religious authorities do not admitthat stunning is more humane than shechita.215 Many in Jewish circleswho have studied this problem argue that cutting the neck of the animalcauses less pain than stunning, with some adducing scientific evidencefor their views.216 As they note, with stunning, there is the danger ofpreventing the flow of blood to the animal’s brain, or damage to themuscles and problems of coagulation of blood.217Rabbi Dr. R. di Segni has written:Many contemporary writers have tried to attack shechita on thegrounds that it causes suffering and torture to animals and thatthere are better ways to ease this. Starting from this statement theyend up by prohibiting Jewish shechita. In fact many scientistshave debated the issue and produced evidence in the defense ofshechita. The medical view and considerations of the preventionof cruelty to animals, all points to the fact that shechita is the idealdeath.218According to Dr. Zichron Chason:Shechita is intended to extract the maximum amount of blood,(blood=soul) while stunning may reduce the flow of blood fromthe body. Various forms of stunning cause reduced bloodpressure, with the result that more blood remains in the body.Cows have many traumas in their lives, and the level of painexperienced during shechita is not greater than one of thosetraumas. The cow does not feel any special pain. This may beproved from the experience of the trauma units of hospitals whichadmit patients with lesions of which they are unaware. We knowabout the motorcyclist who did not feel that his legs were cut. Thesame applies to animals. Conversely, electrical stunning causesgreat suffering for the animal, since it involves a kind ofunfamiliar pain. In some methods, a minor error may causetremendous pain, so from this aspect too, shechita is preferable.219Rabbi Shalom Yitzchak Ha-Levi has similarly made an extensiveargument against stunning as a “humane” practice:220Re: stunning the animal before shechita:On the face of it, it might be possible to allow stunning beforeshechita if it were possible to be completely sure that the effect ofthe application of electricity to the animal throughout did not runcounter to the Sages’ views regarding the fitness of the animal foreating. The problems involved in stunning are complex and of theutmost importance to all Jewish communities. They may be listedunder six headings:1. the fear of “nefulah” (the case of an animal falling from aheight);2. the fear of “mesukenet” (the case of an animal in mortaldanger);3. the fear of limbs being crushed;4. the fear of internal organs being scorched;5. the reliability of the doctors;6. stunning as an aspect of cruelty to animals.The way an electric current works in the body needs to be clarifiedand here I quote the words of a number of doctors I haveconsulted.Passing an electric current through the body of an animal maycause:a. Painb. Cramp in the musclesc. Loss of consciousness lasting from a number of minutes tohours, and when consciousness returns, it is accompanied by painand cramps as well as depression, mental disturbances andneurosesd. Loss of consciousness may also lead to death as a result ofshock or sudden arrest of the heart or of breathinge. At the point of entry of the current, the body may be burnt,there may be local hemorrhages in the brain, the spinal cord, thelungs, the pericardium and the dura materf. The cells of the ganglia often show signs of degeneration.Considerable congestion can arise in the internal organs as a resultof heart paralysis. The blood often appears thinner and moreliquid than normal as a result of haemolysisg. The animal immediately loses consciousness and all feelingh. The current may destroy brain cells or simply paralyze themi. Because of the immediate loss of consciousness the animal mayfall heavily to the floorj. There is always the possibility of cardiac or pulmonary arrestSome doctors believe that changes in the weather and other outsidecircumstances have an effect on stunning. [. . .] All the above areincluded in my six headings above and require further elaboration[. . . .] Therefore, in light of all that has been said and the changesthat take place in the animal’s body from an electric current and allthe uncertainties that arise, it is quite obvious that meat from astunned animal cannot be permitted for consumption and it fallsinto the category of unfit carrion. May the Lord save us fromwrong decisions and reveal us the miracles of His Torah.221In his book, Dr. Levinger similarly discusses in detail the scientificproblems associated with shechita in all its stages and the variousmethods of stunning and comes to the conclusion that “in comparisonwith other methods of slaughter, shechita is at least as humane as anyother.”222Thus, virtually all Jewish authorities are firmly convinced thatstunning might even cause more suffering to the animal. However,these are certainly not the only voices on the subject. Antagonists toritual slaughtering find support in the report prepared in 1985 by theFarm Animal Welfare Council (FAWC) about religious slaughter. Thatreport states that there is insufficient scientific evidence to determinejust when the animal ceases to feel pain, but that the loss ofconsciousness which occurs after the cut is not immediate. Accordingly,the Council concludes:[U]p-to-date scientific evidence available and our ownobservations leave no doubt in our minds that religious methods ofslaughter, even when carried out under ideal conditions, mustresult in a degree of pain, suffering and distress which does notoccur in the properly stunned animal.223In FAWC’s 2003 report, the Council criticized ritual slaughtering,denouncing it as unacceptable; and Recommendation 201 suggested thatthe Government repeal the current exception. According to this report,with ritual slaughtering, it may take up to two minutes for the animal tobleed to death, which amounts to abuse and cruelty toward the animal.The British Government accepted the claim that animals that receive aneffective pre-cut stun do not experience pain at the time of slaughter;however, it rejected the Council’s recommendation to prohibit ritualslaughter due to its commitment to respect the right of religiousgroups.224In our opinion, the discussion about pain to the animal is certainlyvery important in adopting a position regarding the question of ritualslaughtering. However, by itself, the evidence about the relative pain ofritual slaughter vs. slaughter with stunning is insufficient to come to adefinite conclusion about which methods are sufficiently humane. Aslong as it is not possible to determine with certainty that the amount ofsuffering caused by one method is considerably greater than that causedby another, and realizing that some permitted methods involve evenmore suffering than ritual slaughtering, it is difficult to accept anyreason whatsoever why kosher shechita should be banned.However, we need to recognize that the issues involved inslaughtering are not only physiological, i.e., about measuring the amountof pain experienced by the animals. They are also moral and ethical.225To state that shechita is humane implies that it also meets certain moralcriteria, a question to which we will now turn.2. Can the Question of Ritual Slaughtering Be Resolved Morally?In common with many others, we believe that mankind is obligedto treat animals morally since they are by definition, the equivalent of a“moral patient” upon which226 man, as a “moral agent,” acts. As a moralagent, man has a moral responsibility toward those who have a differentmoral status. 227 Jews and Muslims believe that they are properlyaccepting moral responsibility toward animals when they engage inritual slaughter, and that it is thus not immoral. For a Jew, shechita mustbe pure, clean and humane,228 and he must constantly be on the lookoutfor the best way of preventing suffering to the animal. Jewish lawimposes strict demands regarding the professionalism of the slaughterernot required in other cultures. The Jewish slaughterer must haveextensive training,229 and above all, he must have moral integrity andmust exhibit right conduct.230No Jew or Muslim would see in kosher shechita or halal a wantonact of cruelty, but rather, both would consider this act a manifestation ofreligious ethics. It is in this spirit that Jews and Muslims could easilymaintain that kosher shechita or halal slaughtering ought to berecognized as an acceptable method to be practiced by society as awhole, but this is probably going too far. For most Europeans andAmericans, schechita or halal is simply a ritual identified with particularreligions and it would be difficult to conceive it as part of the Europeanor American cultural pattern. Still, religious slaughtering can bejustified as no less legitimate from a moral standpoint than themajority’s preferred methods. The moral approach of Jews can bediscerned from the description of the late Rabbi Kook of his vision ofthe future:231The free inclination of morals concerning animals in general andthe demand for their rights from humankind is rooted spirituallyand naturally in the depths of the Torah. In the treasure house oforiginal man the seed of spiritual light (which later was to befound in Israel) was scattered among unmarked individuals in thenational fabric. Even before the languages were confused, moralsdemanded the rights of animals and “Adam was not permitted toeat meat.” “Behold, I have given you every herb yielding seed,which is upon the face of all the earth, and every tree, in which isthe fruit of a tree yielding seed—to you it shall be for food.”Indeed there is a hidden rebuke within the folds of the Torahregarding the eating of meat for it was only after “. . . you shall say‛I will eat meat’ because your soul desires to eat meat . . . then youshall sacrifice and eat” (Deut XII). [. . .] So the commandmentswere given one after the other and eating meat was one of the stepsleading to the supreme end. The living creatures that are permittedfor food are restricted to the more suitable to man’s nature. Theblood of the slaughtered animal or fowl is covered so that theiniquity done to them should be recognized and noticed.Admitting the disgrace is the beginning of the moral healingprocess “that you may remember and be ashamed” (Ezek 16:63).Cover the blood! Hide your shame! These actions will yield theirfruit, in the course of time the generations will learn. Today’ssilent protest will become a loud and mighty call that will succeed.The laws of sacrifice, in a particular order, easing the pain, allthese strengthen the impression that this is not anarchy, that youare not dealing with an automaton that has no living spirit but witha soul. This animal which serves man’s table—the Divine protestcannot withstand man’s rights until the time comes.232Rabbi Kook continues his didactic essay with references to othercommandments in the field of eating meat:[M]ixing meat with milk is a serious transgression, an actionintimately mingled the oppression of life, soul and property rights;milk which is so natural for the newborn infant to get pleasurefrom the milk of its mother, was not created to soak your stomach.Though you are so hard and cruel as to eat meat, the right of thesuckling has a natural precedence for the milk, it precedes you.Just as covering the blood (after shechitah) associates “Thou shaltnot kill” to all life forms, and the prohibition of meat and milk andmixed seeds is tied to “Thou shalt not steal” and “Thou shalt notoppress,” so does the prohibition of eating the meat of a sickanimal is associated with the obligation to support and visit thesick of all living things. At least have mercy on the forlorn if yourhard heart does not pity the healthy and the strong!233Ultimately, of course, the very best situation would be to preventall suffering to animals. As Peter Singer puts it:If a being suffers there can be no moral justification for refusing totake that suffering into consideration. No matter what the natureof the being, the principle of equality requires that its suffering becounted equally with the like suffering—in so far as roughcomparisons can be made—of any other being.234However, this view has its opponents in those who maintain that therecannot be horizontal equality between animals and humans, and that anymoral approach should assume a vertical view regarding the relationshipbetween animals’ interests and human interests.235 Moreover, takingpreferences and needs of animals into account does not mean that theymust always be given exactly the same weight as the preferences andneeds of humans.236 It is interesting to note here that thinkers like PeterSinger, who are active on behalf of animals, are not bothered byaccepting kosher shechita as such, but rather by their view that its resultis unnecessary suffering when it is carried out without previous stunningor by other procedures thought to be cruel, such as holding the animal ina hanging position as performed in U.S. slaughterhouses.237As we move the question of slaughtering from the scientific to themoral realm, we widen the field for discussion since, until not long ago,kosher shechita was without doubt more humane and morally acceptablethan other “secular” methods of slaughter. Certainly, the prevention ofcruelty to animals is not a static concept but must evolve as scientificresearch sets different parameters for animal suffering and foralternative ways to prevent it.238On the other hand, religious belief is fixed and immutable.239 TheJews practiced humane and moral shechita at a time when other nationsgave little thought to such matters. 240 Obviously, from a religiousstandpoint, the issue of stunning did not have to be grappled with untilthe issue arose in the last century,241 as new techniques, rather thanchanging moral standards, called for re-consideration of the issue by thereligious authorities who determine the Halakhah.We would suggest that these new techniques should cause allpersons who are concerned about humane treatment of animals,whatever their religious beliefs, to approach the problem from a newangle. If we can agree that the chief issue which has created thecontroversy is the common goal of avoiding unnecessary suffering, wemight ask, to what extent can the suffering caused by kosher shechita beregarded as “unnecessary”?B. “Unnecessary Suffering”The distinction between necessary and unnecessary suffering ofanimals is without doubt one of the thorniest points in the struggle forthe defense of animals, since the very distinction encompassesacceptance of the fact that a certain measure of pain is inevitable whenwe slaughter animals. The acceptance of this pain underscores theinstrumental character of animals in our culture, a reality which certainlymay jeopardize the protection of animals precisely because it is alwayspossible to argue that every human consideration, including economicefficiency, justifies the suffering of animals. Defining the line betweennecessary and unnecessary suffering is difficult, though it is perhapsmore difficult for most modern people to accept the fact that thisdistinction rules out some human behavior toward animals as improperand even immoral.For example, the distinction between necessary and unnecessarysuffering has been described by the Colorado Supreme Court:Every act that causes pain and suffering to animals is prohibited.Where the end or object in view is reasonable and adequate, the actresulting in pain is, in the sense of the statute, necessary orjustifiable, as where a surgical operation is performed to save life,or where the act is done to protect life or property, or to minister tosome of the necessities of man.242This description of the distinction between necessary and unnecessarysuffering is certainly far from expressing an ideal situation or ethicalprinciple. Rather, it refers to the current reality in which man usesanimals for his own ends and determines the measure of acceptablesuffering only according to needs, preferences and values of humans.This description is extremely problematic because it implies that undercertain circumstances, mankind is at liberty to cause suffering to animalswhen it suits his purposes, whereas when an action affects humanbeings, there can be no justification for causing suffering irrespective ofany benefit it might bring to another.243 We can see that in this view, theonly criteria for determining what is owed animals are utilitarian (nottaking animals into account as subjects whose pain is considered in theutilitarian calculus)244 whereas with human beings, a more deontologicalapproach is demanded.In this view, man’s relation to animals is based on what isgenerally defined as a balance of convenience, that is, the interests of theanimal are a function of its use to man, who will justify animal sufferingwhen human interests are perceived to be more valuable.245 To be sure,thinkers like Tom Regan and Peter Singer are up in arms against thisviewpoint, but it reflects the state of reality in animal husbandry today.Even in countries such as Switzerland with their “extensive protection ofanimals,” a certain amount of animal suffering is permitted.The most notable expression of this preference for human interestsis to be found in the use of animals in experiments, where in striking themoral “balance,”246 ethicists have concluded that there needs to be nooutright prohibition against the use of animals in experiments. Ratherexperiments should concentrate on ethical procedures to ensure thatexperiments are carried out with minimum suffering, with a commitmentto refining methods and seeking less painful alternatives whereverpossible.247 The reality of animal experimentation today is the practicalapplication of the theory known as R-R-R, i.e., “Reduce-Refine-Replace.” 248 However, until now, ethicists have not been able toestablish criteria that would require the replacement of animals inexperiments. For example, they have been stumped by the question ofwhether moral considerations for the suffering of animals shouldoutweigh economic ones if it turns out that the replacement of animalswith other experimental objects is too expensive to make the proposedproduct marketable.Of course, we should be cautious about comparing animalexperimentation with slaughter because they differ in purpose, meansand values; and Jews and Muslims cannot accept the idea that ritualslaughter should be “replaced or refined” because of religious mandates.At the same time, there is no reason why a similar kind ofbalancing of moral alternatives might not be sought with regard toreligious slaughter. The very idea of unnecessary suffering is based to acertain extent on the dialectics between ends and means. Thedesignations “unnecessary” or “exceptional” apply not only to theanimals but also to the purpose for which the animal suffers.In order to decide what is permissible and what not, a distinctionmust be made between an acceptable purpose and one which isunacceptable, in which case the animal’s pain is unjustifiable. Forexample, killing a fowl or a cow for food is acceptable (except forvegetarians), whereas killing that occurs during an animal contest suchas cock-fighting is not because its sole purpose is the amusement ofhuman beings. Suffering that is imposed on animals in order to enhancea public performance, such as in a movie, is not acceptable, while thesame amount of pain might be considered legitimate in the case ofanimal experiments which are designed to prolong life.Similarly, when the purpose is a proper one, care must be takenthat the methods used are also properly tailored. The theory behind theprevention of cruelty to animals maintains that a specific practice canlegitimately be described as causing unnecessary pain as soon as anothermethod can be substituted without interfering with the legitimatepurpose of the practice or other legitimate, overriding interests.Moving from these general principles to the particular case weconsider, how does religious slaughter fit in with the conflict betweenfreedom of religion and prevention of cruelty to animals in this model?One whose premise is that religious slaughter causes more suffering thanother slaughtering methods still concedes that the basic purpose ofslaughtering, killing for human consumption, is legitimate (or at least isaccepted as legitimate by the majority). It is the means that he or sheclaims are not acceptable because as long as it is possible to use adifferent technique which seems to cause less pain, the sufferinginvolved is unjustifiable. However, this calculus ignores the fact thatritual slaughter involves not just the purpose to feed human beings, butthe protection of freedom of religious expression for a particular group,which is certainly a fitting principle. If we were to illustrate thisrelationship as the two sides of this debate see it, it might looksomething like this:
End MeansNeed To Provide Food249 SlaughterFreedom of religion→→→→→→→→religious slaughter allowedProtection of animals→→→→→→→prohibition of ritualslaughter because if causesunnecessary suffering250
Those who wish to abolish religious slaughter examine the meansof slaughtering in the light of only one end, the need to provide food;but they ignore the second aim, the need to protect the freedom of beliefof those who believe they are compelled by God to slaughter in aspecific way. Without taking into consideration this important value,they are essentially equating the Jewish or Muslim slaughterer who isdoing his job according to the religious law in which he believes to onewho slits an animal’s throat for his own amusement. The prohibition ofshechita defines both acts as maltreatment by using different criteriafrom those used to define cruelty to animals.By contrast, our proposed approach tries to put the essence of theproblem within a wider framework of the ethical and religiousperceptions about the suffering of the animal. When animals are usedfor human purposes in other cases, the moral decision-maker takes forgranted that certain amounts of suffering should be permitted. In suchcases, he bases his decision not on “animal” considerations but onethical-human ones. The determination a priori that a method runcounter to animal protection without consideration of all interestsinvolved marks a departure from the ethical criteria used to prohibitunnecessary suffering in general.Protection of freedom of religion and avoiding an attack on afellow citizen’s right to religious expression do not stand in oppositionto the suffering caused to the animal, but are part and parcel of theprocess of deciding whether the suffering is excessive or not. The apriori assertion that the right to religious practice is offset by theprevention of pain caused by religious slaughter ignores the values of,and benefits to all parties involved. While it may be difficult, at first, toaccept that the judgment that action cruel to animals must be governedby different criteria in one case than in another, it seems to us thatanimal protectionists should not jeopardize their goals by ignoringreligious obligations that are an essential part of determining whetheranimal suffering is unnecessary or not. Conversely, Jews and Muslimsshould be open to understanding the feelings of those who care aboutanimal suffering, and take their concerns seriously as they deal with allanimal life, including in ritual slaughter and the consumption of meat.Ultimately, the final decision on permitted animal suffering mustinclude a serious consideration of values and religion within and notoutside the definition of “unnecessary suffering.” Otherwise, there is thethreat that when animal suffering is the subject of moral reflection,society will adopt a utilitarian approach to all questions of animalsuffering except for religious slaughter, where only the inherent rightsof animals will be considered, resulting in moral inconsistency at theexpense of a minority religious group.To recognize a current exception for traditional ritual slaughterdoes not entail that the decision about acceptable slaughtering practiceshas to be made for all time. All moral reflection must consider thepromise of technological advance; and on the future, it may be possibleto talk about some system that produces no pain at all in slaughtering, orto discover a method of stunning that will be congruent with thereligious principles of Judaism or Islam. But at present, this is only atheoretical possibility. When scientific advances offer a way ofunequivocally preventing animal suffering, Jewish and Muslim religiousleaders will have to sit down and discuss whether religious law can beharmonized with science and adapted to the new knowledge.251 On theother hand, while much remains to be done to improve the attitude andefforts of mankind toward preventing animal suffering, so long as wecannot ensure that animal welfare is better served by stunning there is nopoint in making stunning compulsory.252Finally, we might want to ask whether there are any “alternatives”that may afford some sort of leeway to justify the prohibition of ritualslaughtering in those nation-states where a majority feels strongly aboutthese practices, thus cushioning the possible diminishment of freedom ofreligion. We will thus consider the alternative of importing kosher orhalal meat instead of ritual slaughtering in a country with such a ban.
VI. IMPORT OF KOSHER MEAT—A POSSIBLE SOLUTION?
We have noted that in the Sha’arei Shalom case, the French Courtjustified the prohibition of religious slaughter because of the availabilityof imported kosher meat, reasoning that the French ban could not violatereligious freedom if adherents had an alternative to violating the ban.Indeed, most countries that prohibit ritual slaughtering do go to thetrouble of regulating the permitted import of kosher meat;253 and inSweden, it is even subsidized. Certainly, to a certain extent, the importof kosher meat “ameliorates” the prohibition, and is a less drasticinfringement on the freedom of religion than those who would go so faras to advocate forbidding Jews and Muslims to eat even imported koshermeat. But permitting importation is not a true solution to this difficulty,since it is not just the consumption but also the shechita itself that is partof the Jewish way of life, just as the Jewish community, like any otherreligious community, must have its schools, synagogues and cemeteries.Moreover, it is not clear how the importation solution would resolve anyjustifiable concern with animal suffering, since animals still must beslaughtered elsewhere to make kosher meat. Should it make anydifference whether the animal is slaughtered in Switzerland, Italy orIsrael? Is the suffering of a Swiss animal more important than one ofanother country?Of course, one might justify this distinction by noting that Swedenand Switzerland have no right to interfere in the laws and policies ofother countries which permit kosher shechita. Animal rights advocatesmay even distinguish imported meat because they believe theircommunity’s concern is with animals that are found within their bordersand they have no right to meddle in the affairs of foreign countries.Similarly, if shechita does take place elsewhere, there is nothing wrongwith Jews or Muslims consuming such meat in countries that banschechita, for they are not engaging in any act which violates the ban.However, this argument is a bit deceiving because it pays no heed to theissue of supply and demand. A country permitting ritual slaughter willclearly slaughter more cattle knowing that some of the meat is destinedfor citizens of a foreign country, thereby causing suffering to moreanimals.Some might analogize this problem to laws forbidding forcefeedinggeese, which are meaningless if the sale and consumption ofpatè de foie gras is not also prohibited, but we should be extremelyreluctant to compare force-feeding with kosher shechita since thepurpose for these actions and the amount of suffering are so different.Force-feeding, which entails considerable maltreatment of geese, issolely a commercial matter aimed at satisfying the discrete demands of aparticular public that wants to partake of a non-essential delicacy. Theramifications of forbidding kosher shechita are far greater—if one wereto imagine that all the countries of the European Union were to agree onforbidding the consumption of any meat slaughtered by shechita orhalal, the potential human rights violation with regard to Jews andMuslims would be considerable.In considering the acceptability of a kosher import alternative, wemust also consider the economic implications of this alternative, just asthe case of the ultra-orthodox Jewish community in France raised thisconsideration. We would need to consider the effect of the significantcost of importing kosher meat on the religious freedom of Jews andMuslims.254 This cost would be borne by Jews and Muslims, whetherbecause they ate non-kosher meat in violation of their religious beliefsbecause of cost, or because they were forced to pay higher prices toconform to religious mandates. Either alternative represents aninfringement on religious freedom, albeit a somewhat lesser one thanwhere there is a complete ban on the import of kosher meat. In banningschechita, Sweden has offered a more palatable alternative bysubsidizing the import of kosher or halal meat,255 so that the economicburden of preventing cruelty to animals falls upon the whole populationinstead of the minority which needs to be protected. Of course,subsidies may have other paradoxical consequences. For example, theymay even encourage the consumption of meat and thus more animalswill be slaughtered abroad. Or, subsidies might lead to even morereligious discrimination, since the larger the religious minoritypopulation, and thus the greater the general burden of subsidizing koshermeat or halal, the more public opinion might oppose the entry of Jews orMuslims.Besides the question of religious freedom for meat consumers,importing does not provide a satisfactory solution to the problem offreedom of choosing an occupation since the prohibition of koshershechita does not allow anyone whose job is kosher slaughtering to earna living.256 In the case of the Muslim butcher shop in Hessen, theGerman Constitutional Court considered this concern and decided thatthe prohibition was not justified for just that reason, since the slaughtererhad no other business. This suggests that the freedom to choose one’soccupation will trump animal rights arguments in most cases. Sincemost suffering by animals in agriculture occurs in the context of theslaughtering livelihood, the effect of a ritual slaughtering ban is toeliminate a number of slaughterers, which produces a rise in prices andpossibly a lowering of profitability and customer base. In fact, in somecountries, such as Italy, ritual slaughter is permitted to enable Italianfarmers to export meat to Muslim countries.257
* * *
This article has focused on the issue of ritual slaughter in the lightof the legal situation in Europe. However, it is impossible to concludewithout wondering whether Israel, too, should not forbid koshershechita. Unlike countries which forbid kosher shechita but permit theimport of kosher meat, Israel, where kosher slaughter is obviouslypermitted, forbids the import of non-kosher meat. This situation poses apossible offense to animal supporters, who for ideological reasonssupport stunning but cannot obtain access to meat produced bystunning.258 It is possible to wonder whether Israel, too, should notforbid kosher schechita!259 Clearly, this debate is inseparably linkedwith the ongoing debate in Israel about the relationship between thesecular and religious sectors and the Jewish character of the state; andany abolition of religious slaughtering would adversely affect not onlyobservant Jews but also the Muslim population.We must concede that, just as a far-reaching prohibition on ritualslaughter creates a conflict for observant Jews and Muslims in Europe,where they are minorities, non-vegetarians in Israel who believe theyshould not eat the meat of an animal killed by methods at odds with theirbeliefs about animal protection pose a valid challenge to the state ofIsrael. And, certainly, there are those in Israel who believe that kosherslaughtering creates unnecessary suffering for animals and would like tocompel stunning. However, no operative proposals have been put forthto create non-kosher alternatives for such people, and since kosher andhalal slaughtering will not be banned in a Jewish state, we do not foreseesuch a likelihood. This is particularly true since there is not unanimityon this issue as there was in the case of force-feeding geese for pate,which was banned by the Israeli Supreme Court. Given that thereappears to be more cruel treatment of animals in Israeli agribusinessthan in slaughtering, this issue is also not likely to play a central role onthe agenda of animal welfare groups in Israel. However, it may in thefuture assume much more importance if new methods that cansignificantly diminish the suffering of slaughtered cows are discovered.There is no doubt that if the issue came up for public debate or before acourt, the European experience would carry significant weight; and forthis reason, the Israeli public needs to be conversant with the situation inother countries.
SUMMARY
We have argued that the struggle on behalf of animals needs tobalance the prevention of cruelty to animals and religious freedom froma broader perspective. It is doubtful whether such a balance can bereached by a comprehensive prohibition of kosher shechita. Moreover,permitting schechita and halal does not exclude the advisability ofbringing Rabbis, Jewish halakhic authorities and Muslim clericstogether for creative thinking about how we might minimize thesuffering of animals while observing the religious values which are thebasis of a pluralistic and tolerant society.Where the proper treatment of animals is concerned, we too hopeto walk in the way of perfect goodness: “On that day I will make acovenant with the beasts of the field and the fowls of heaven and withthe creeping things of the ground, and I will break the bow and thesword and the battle out of the land” (Hos 2:20).260 In the meantime, wewould do well to remember the words of the contemporary halakhicauthority Rabbi Isaac Jacob Weiss in his book of Responsa MinchatYitzchak, warning us not to be satisfied with deciding the law. As heconcludes, “All the above relates to the law itself but there remains themoral aspect and we have seen how much emphasis our revered sages laidon the prevention of cruelty to animals[.]”261 Rabbi Weiss then goes on tostate that “as explained at length in Sefer Chasidim (The Book of thePious)”:Be kind and compassionate to all creatures that the Holy One,blessed be He, created in this world. Never beat nor inflict pain onany animal, beast bird or insect. Do not throw stones at a dog or acat, nor kill flies or wasps.262If the debate on animal rights is going to become part of theinternational discussion of human rights generally, then it will only befruitful if all interested parties refrain from statements that clearly offendgroups who may hold the same ethical principles as they do but applythem differently, including those who believe in practicing these ethicalprinciples consistently with their religious faith. We hope that theinternational community of persons involved in these discussions, bothreligious and secular, can agree to treat other people, not just the animalsthat are the focus of these discussions, with kindness and compassion.263261. Responsa, Minhath Yitzhak # 155. This Responsum is presented (in Hebrew) in the BarIlan University Responsa Project CD; see supra n. 176.262. Id. Also see Rabbi B. Lao Teudath Kashruth, Behinath Hamuzar Vemah Shesaviv Lo, 1Maagalei Zedek 20 ff. (2004) (Hebrew) (discussing ethical problems in the context of crueltytoward animals and suggesting that the grades of Kosher licensing should take in to considerationthe element of animal suffering). “So far we have stated our objections from the humane point ofview, and these objections in themselves are of a religious character since it is an integral principleof the Jewish religion to be humane to animals.” Soloman David Sassoon, A Critical Study ofElectrical Stunning and the Jewish Method of Slaughter (Schechita) 21 (2d ed., Soloman DavidSassoon 1955). “Schechita seems to us to be more humane, and certainly not less humane, thanthe method of stunning.” Id. at 34.263. See Animal Welfare in Europe, supra n. 31, at 8.

NOTE
1. Ps 145:9. All quotations from Hebrew sources are the authors’ translations, unlessotherwise noted.2. We chose to focus on this problem as it surfaces in Europe, where Jews and Muslims (themost injured parties of this prohibition) are minorities. Obviously some parts of the presentanalysis are appropriate if and when the subject is raised, for instance, in Israel. We decided toprepare this paper in view of the renewed interest in the subject, as expressed by the decision ofthe Italian authorities who appointed a special commission to prepare a report on the topic. Wedeal with this report below.3. As will be explained later, this is an equivocal issue. Many experts are of the opinion thatthere is no scientific evidence that ritual slaughter causes more suffering than other methods.4. On the problems involved in the definition of animal suffering as unnecessary see infraSec. V(B).
5. See e.g. J. Bazak, Vandalism and the Prohibition of Wasteful Destruction (Deut. 20:19), 1Techumin 329, 336 (1980); Ray S. Aviner, Crop Dusting and Cruelty to Animals, 6 Techumin 432(1985); S. Rosenfeld, Destroying Surplus Live-stock, 11 Techumin 258 (1989); A. Meisels,Scientific Experiments on Animals, 14 Techumin 366 (1994); A. Steinberg, Cruelty to Animalsand the Halakhah, 1 Assia 263 (1989).6. For example Pythagoras who, according to some accounts was opposed to animalsacrifices and was a vegetarian advocate, as was testified to by Plutarch. See Plutarch, Plutarch’sMoralia vol. 12, 541 (Harold Cherniss & William L. Helmbold trans., Harv. U. Press 1957); seealso James A. Serpell, Attitudes Toward Animals: Pre-Christian Attitudes, in Encyclopedia ofAnimal Rights and Animal Welfare 76, 77 (Marc Bekoff ed., Greenwood Press 1998).
7. See Peter Singer, Animal Liberation 188 (2d ed., Pimlico 1995) [hereinafter Singer,Animal Liberation]; Zeev Levy & Nadav Levy, Etikah, regashot u-và ale-hayim (Ethics, Emotionsand Animals) 25 (Hotsaat ha-sefarim shel Universitat Hefah 2002).8. It is worthwhile to point out that thinkers like Seneca (who was a strict vegetarian overhis youth) and Plutarch showed due concern for animal welfare. See Plutarch, supra n. 6, at vol.12, 541; Lucius Annaeus Seneca, Ad Lucilium Epistulae Morales vol. 3, 243 (Richard M.Gummere trans., William Heinemann 1953); see also Miriam T. Griffin, Imago Vitae Suae, inSeneca 1, 7 (C.D.N. Costa ed., Rutland & Kegan Paul Ltd. 1974); D.A. Russell, Letters toLucilius, in Seneca, supra at 79; Italo Lana, Luicio Anneo Seneca 72 (Loescher 1955).9. Gen 1:28; see also Levy & Levy, supra n. 7, at 57.10. Gen 1:29-30.11. Rashi to Gen 1:29-30. Rashi’s comment is based on BT (Babylonian Talmud) Sanhedrin59b. Rashi (1040-1105) is an important Jewish commentator of the Bible and the Talmud. For anEnglish translation of Rashi’s commentary to the Pentateuch, see Rashi, Pentateuch with TargumOnkelos, Haphtaroth and Prayers for Sabbath and Rashi’s Commentary vol. 1, 7f (M. Rosenbaum& A.M. Silbermann trans., Shapiro, Vallentine & Co. 1946).12. Gen 9:3.13. Rashi to Gen 9:3, also based on BT Sanh. 59b. See Rashi, supra n. 11, at vol. 1, 37.
14. See J.B. Sermoneta, L'antropologia biblica nella Guida dei Perplessi di MosesMaimonides e il suo capovolgimento nel Trattato teologico-politico di Benedetto Spinoza, inAnnali di Storia dell'esegesi' 7/1, at 80 ff. (1990) (regarding the duties of man to serve God).15. See S. Many, Animaux, Dictionnaire de la Bible Supplement 603 ff. (Paris 1928); S.J.Sierra, Il rapporto con il mondo animale e l'Ebraismo, in Gli Animali e la Bibbia: i Nostri MinoriFratelli 27 (Piero Stefani ed., Garamond 1994); see also Yitshak Nahman ben Avraham Eshkoli,Tsa ̀ar ba ̀ale hayim (The Prohibition Against Causing Pain to Animals) (Ophakim 2002). It mustbe noted that the Halakhah does not permit attendance at bull-rings and similar spectacles whereanimals fight each other. R. Obadia Josef, Responsa Yechave Daath Pt. III, § 66 ff., p. 207 ff.(Jerusalem 1980). This Responsum is presented (in Hebrew) in the Bar Ilan University ResponsaProject CD; see infra n. 176. See Levy & Levy, supra n. 7, at 33; Noah J. Cohen, Tsàar ba ̀aleihayim—The Prevention of Cruelty to Animals: its Basis, Development and Legislation in HebrewLiterature (Cath. U. Am. Press 1959). Also see Nahum Rakover, The Multi-LanguageBibliography of Jewish Law 536-537 (Lib. Jewish L. 1990) (for a bibliography).16. Exod 20:10; see Deut 5:14 (regarding the ownership status of animals as comparable, inseveral aspects, to that of slaves); see e.g. Levy & Levy, supra n. 7, at 62.17. Lev 22:28.18. Moses Maimonides, The Guide for the Perplexed 371 (M. Friedlander trans., DoverPublications 1956) [hereinafter Maimonides, The Guide for the Perplexed].19. Deut 22:10. Rashi explains: “It applies to any two different species, and it is alsoprohibited to tie them together to carry a burden (hitch them to a wagon).” See Rashi, supra n. 11,at vol. 5, 109 ff.20. Deut 22:6; Maimonides, The Guide for the Perplexed, supra n. 18, at 370 (explaining thislaw); see also Elijah Judah Schochet, Animal Life in Jewish Tradition: Attitudes and Relationships
148 (Ktav Publg. House 1984).21. We should also note the consideration for animals required at meal times. The Talmudsays that one must not start a meal before feeding his animals. BT (Babylonian Talmud),Berakhoth 40a.22. G.H. Bousquet, Les animaux et leur traitement selon le Judaisme, le Christianisme etl’Islam, 9 Studia Islamica 31 (1958); Al-Hafiz B.A. Masri, Animal Experimentation: The MuslimViewpoint, in Animal Sacrifices: Religious Perspectives on the Use of Animals in Science 171, 184(Tom Regan ed., Temple U. Press 1986); Paul Waldau, Religion and Animals: Islam, inEncyclopedia of Animal Rights and Animal Welfare, supra n. 6, at 291.23. See Richard D. Ryder, Animal Revolution: Changing Attitudes towards Speciesism 28 (2ded., Berg 2000).24. Charles Wesley Hume, The Status of Animals in the Christian Religion (2d ed.,Universities Fedn. Animal Welfare 1957); Andrew Linzey, Religion and Animals: Christianity, inEncyclopedia of Animal Rights and Animal Welfare, supra n. 6, at 286.25. See e.g. Mike Radford, Animal Welfare Law in Britain: Regulation and Responsibility 16(Oxford U. Press 2001).
26. It was also known as Martin’s Act. See Radford, supra n. 25, at 39; Simon Brooman &Debbie Legge, Law Relating to Animals 141 (Cavendish Publg. 1999).27. See e.g. Cruelty to Animals Act (Animal Protection), 5754-1994, L.S.I., 1447, p. 56(1994) (Isr.) (forbidding abuse or cruelty to animals); Protection of Animals Act, 1911, 1 & 2Geo. 5, c. 27 (Eng.); Wild Mammals (Protection) Act, 1996, c. 3 (Eng.).28. See e.g. Cruelty of Animals Act (Experiments), 5754-1994, L.S.I., 1479, p. 298 (1994)(Isr.). Cf. Animal Welfare Act, 7 U.S.C. §§ 2131-2159 (2000); Animal Protection Act, 1988, SFS1988:534 (Swed.); Animal (Scientific Procedures) Act, 1986, c. 14 (Eng.).29. See e.g. Jordan Curnutt, Animals and the Law: A Sourcebook 290 (ABC-CLEO 2001).30. Abandonment of Animals Act, 1960, 8 & 9 Eliz. 2, c. 43 (Eng.).31. See e.g. Convention of International Trade in Endangered Species of Flora and Fauna(CITES) 1973; see also Julian Palmer, Animal Law 49 (3d ed., Shaw & Sons 2001); AnimalWelfare in Europe: European Legislation and Concerns 45-46 (David B. Wilkins ed., Kluwer L.Intl. 1997).32. For example, a number of laws in Israel relate to animals, without precisely dealing withthe question of animal protection. Those laws include the Ordinance of Tort which includesdamages caused by animals (Sec. 40) The Public Health Act (The Animal Disease Ordinance(New Version) 1985; Business Licensing Act (Sanitary Requirements for selling food) 1973;Rabies Act (1934).
33. See e.g. Approvazione del regolamento per vigilanza sanitaria della carni, regio decreto20 dicembre 1928, n. 3298.34. T. Ercoli, “La Macellazione,” in Per un Codice degli Animali: Commenti sullaNormativa Vigente 199, 200 (Anna Mannucci & Mariachiara Tallachini eds., Giuffrè 2001).35. Cf. Tom Regan, The Case for Animal Rights 355 (U. Cal. Press 1983) [hereinafter Regan,The Case for Animal Rights].36. Singer, Animal Liberation, supra n. 7. Regarding the question of farm animals, see alsoPeter Singer, Ethics Beyond Species and Beyond Instincts: A Response to Richard Posner, inAnimal Rights: Current Debates and New Directions 78 (Cass R. Sunstein & Martha C.Nussbaum eds., Oxford U. Press 2004); David J. Wolfson & Mariann Sullivan, Foxes in the HenHouse, in Animal Rights: Current Debates and New Directions, id. at 205, 212.37. See Regan, The Case for Animal Rights, supra n. 35, at 97 (expressing a similar view).38. See Council Directive 1999/74/EC, Laying Down Minimum Standards for the Protection of Laying Hens, 1999 O.J. (L. 203) 53 (EC) (concerning battery hens, defining the rules forappropriate living space for each hen, separation between rows, and appropriate flooring).Similarly, with regard to pigs, rules were set out about the requirements of illumination,ventilation, sanitary conditions and abuse of the animals. See Council Directive 1991/630/EEC,Laying Down Minimum Standards for the Protection of Pigs, O.J. (L. 340) 33 (EEC) (amended byCommission Directive 2001/93/EC, 2001 O.J. (L. 316) 36 (EC)).39. Radford, supra n. 25, at 264 ff. The Farm Animal Welfare Council in Britain set outthese principles in the form of “five freedoms” (on the model of the four freedoms of the RomeConvention 1957): the freedom from hunger and thirst; the freedom from discomfort; freedomfrom pain, injury and disease; freedom to express normal behavior; and the freedom from fear anddistress.40. Animal Welfare in Europe, supra n. 31, at 11.41. Brooman & Legge, supra n. 26, at 190.42. See HCJ 9232/91 “Noah” (Israeli Federation of Animal Protection Organizations) v.Atty. Gen., IsrSC 57(6)212 (Aug. 11, 2003) (providing a comparative discourse); see also AnimalWelfare in Europe, supra n. 31, at 3 ff.43. Andrew N. Rowan et al., Farm Animal Welfare: The Focus of Animal Protection in theUSA in the 21st Century 46 (Tufts Ctr. Animals Pub. Policy 1999).44. See Radford, supra n. 25, at 272 (explaining the distinction between animal pain andsuffering).45. We shall see below that, according to numerous learned opinions, kosher slaughteringdoes not cause more suffering than any other method. See infra Sec. V.
46. Sometimes it is questionable whether the transportation of poultry in harsh conditionsdoes not render them unfit for kosher slaughter.47. We chose to omit the discussion about the meaning of the term “religion.” See WolfgangSchluchter, The Future of Religion, in Culture and Society: Contemporary Debates 249, 249-250(Jeffrey C. Alexander & Steven Seidman eds., Cambridge U. Press 1990).48. See Paul Waldau, Religion and Animals, in In Defense of Animals: The Second Wave 69,77 (Peter Singer ed., Blackwell Publg. 2006).49. Deut 12:21. Rashi explains “and thou shalt kill . . . as I have commanded thee”—“Welearn from here that the mode of killing is prescribed; they are the laws of slaughtering as theywere told to Moses on Sinai.” Rashi, supra n. 11, at vol. 5, 68. Maimonides indeed lists the laws
50. BT Chullin (passim); R. Josef Caro, Shulhan Arukh (passim); R. Josef Caro, Yore Deah(passim). Perhaps this is the reason that particularly in non-Jewish circles, it is argued that theJewish law does not oppose stunning. This interpretation of Jewish law, which ignores theTalmud, is clearly mistaken.51. Id.52. See e.g. Sefer Hahinukh Precept 451.And slaughtering has to be performed at the throat, with a knife that has been examined,in order to spare the animal from suffering, because Scripture permitted man to eatanimals and use them for his needs, but not to impose upon them unnecessary suffering.Cruelty to animals was extensively discussed by the Sages of the Talmud, who concluded that itwas a Scriptural prohibition. BT Baba Metzia 32b; BT Sabbath 128.53. Maimonides, The Guide for the Perplexed, supra n. 18, at 311; Schochet, supra n. 20, at162.54. Maimonides, The Guide for the Perplexed, supra n. 18, at 371; cf. Ramdan(Nachmanides), Commentary on the Torah: Deuteronomy Det. 12:21:[A]s I have commanded thee—The Sages say that this teaches us that Moses had beentold that slaughtering was to be performed by cutting the esophagus and the wind-pipe(or at least most of them) for cattle and one of them for fowl. Indeed, the word“Shechita” in Hebrew denotes the cutting of these two organs. Do not be misled by “Hehad slaughtered them in the wilderness” (Num 14:17). It is a mere figure of speech
meaning that He had slain them like sheep. The commandments concerning thesacrifices use the terminology of “slaughter” i.e., cutting the organs at the throat. Atfirst, He commanded them that all meat to be eaten should bear the quality of perfectionof the sacrifices, and the animals killed according to the procedures of the sacrifices.This is the plain meaning of Scripture. It may well be that the Sages meant to say this(Sifre Reeh 39)—as I commanded thee—both sacrificial and other animals must bekilled by shechita.For an English version of Nachaminides’ work, see Nachamanides, Commentary on the Torah:Deuteronomy 150 (Rabbi C. Chavel trans., Shilo Publg. House 1976).55. See Curnutt, supra n. 29, at 180.56. That is, instructions by the prophet Mohammed.57. That is, religious tradition.58. That is, a Summary of Islamic learning.59. See infra Sec. V(A)(2).60. B. Cottier & S. Aldeeb, Avis sur l`Étourdissement des animaux avant leur abattage,Institut Suisse de droit comparé 4 (Lausanne 2001). This is the method known as “reversibleelectric stunning,” from which the animal could potentially recover. According to Shimrit Golan,in Sweden this method is accepted by the majority of Muslims, although not by orthodox Jews.Shimrit Golan, Current Challenges for Religious Freedom in Europe: The Case of RitualSlaughter of Animals 22 (Working Paper 47/2005, Hebrew U. Jerusalem, July 2005).61. W.A. Shadid & P.S. van Koningsveld, Legal Adjustment for Religious Minorities: TheCase of Ritual Slaughtering, in Islam in Dutch Society: Current Developments and FutureProspects 2, 13 (W.A.R. Shadid & P.S. van Koningsveld eds., Kok Pharos Publg. H. 1992). It isnevertheless important to point out that if the animal’s death is caused by the electrical shockbefore having been duly slaughtered, the meat is banned for consumption. Sometimes this part ofthe opinion has been omitted to show a liberal approach of Islam toward ritual slaughtering, anapproach that runs counter to the view of all those who want to stick to the religion provisions. Id.62. Id.
63. See Patrizia Conforti, Religion et Loi: L`Abattage Rituel sans etourdissment resterainterdit en Suisse 1, 5, http://www.religioscope.com/info/notes/2002_029_abattage_ch.htm (lastmodified Mar. 18, 2002, accessed Dec. 31, 2006). See also text accompanying nn. 200 ff, infra,the decision of the German Constitutional Court about the Islamic community in Hessen.64. Id.65. See Conforti, supra n. 63, at 4 (quoting Urs Peter Müller: “[Il] importe peu de savoir si leTalmud ou le Coran interdisent ou non les méthods d`abattage industrielles. Juifs et musulmansestiment que ces méthods sont incompatibles avec la practique de leur religion, et c`est la seulechose dont la loi doit tenir compte.”).66. See infra Sec. IV.67. Decree No. 80/-791 of Oct. 1, 1980 § 9, J. Officiel de la République Française (J.O.)(Official Gazette of France) (Fra.).68. Macellazioni Rituali e Sofferenza Animale 14, 16 (Comitato Nazionale per la Bioetica2003) (available at http://www.governo.it/bioetica/testi/macellazione190903.pdf). A law of June20, 1980 permits religious slaughter for Jews and Muslims. Another law from 1927 requires thatanimals should be killed by a swift and painless method: “usando apparecchi esplodenti aproiettile captivo, oppure la recisione del midollo allungato (enervazione) ovvero altro sistema dariconocersi odoneo dall`autoritá prefettizia, sentito il consiglio provinciale di sanitá.” Id. at 21.69. The matter was settled by an agreement between the Spanish authorities and the Jewishand Muslim communities in 1992. Decreto Real 53 15-2-1995.70. Welfare of Animals (Slaughter or Killing) Regulations, S.I. 1995/731 (U.K.).71. Slaughtering of Animals (Scotland), 1928, 18 & 19 Geo. 5, c. 29 (Eng.).72. Tierschutzgesetz (Law for the Protection of Animals) § 4a 2 (2), July 24, 1972, BGBl. I(Federal Law Gazette) at 1277 (Ger.). In the state of Saxony, Kosher slaughtering had beenbanned in 1892 but the law was rescinded in 1910. Cf. Michael L. Munk, Eli Munk & I.M.Levinger, Schechita: Religious and Historical Research on the Jewish Method of Slaughter 17-26(Inst. Adv. Jewish Scholarship 1976).73. 1920 Livestock Act, § 74.74. Law about Animals 1971, § 11, Säädoskokoelma (SDK)/Förfatningssamling (FörfS)333/1971. There is an exception on the island of Aland, where stunning is compulsory. SeeMacellazioni Rituali, supra n. 68, at 30.75. See P. Garde, Die Religionsfreiheit in den Skandinavischen Landern, 47 Zeitschrift furEvangelisches Kirchenrecht 315, 330 (2002). Danish law requires stunning immediatelyfollowing the incision. This method may serve as an alternative for the integration between theswift cessation of pain and religious freedom (because perhaps such stunning is not against theHalakhah) and it might well be adopted by other countries.76. European Convention for the Protection of Animals for Slaughter § 17 (1), 1988 O.J. L.(137) 27 (authorizing contractual parties to derogate provisions as to prior stunning in case ofslaughtering in accordance with religious rituals).77. Council Directive 1993/119/EC, Protection of Animals at the Time of Slaughter orKilling, 1993 O.J. (L. 340) 21 (EC) (replacing Council Directive 1974/577/EEC, On the Stunningof Animals Before Slaughter, 1974 O.J. (L. 316) 10 (EEC)).78. See Council Directive 1993/119/EEC § 5(2).79. 7 U.S.C. § 1901 et. seq. (2000) (enacted as Humane Methods of Slaughter Act of 1958,72 Stat. 862 (1958)). This law was passed much later than in most European states. See Curnutt,supra n. 29, at 169.80. 7 U.S.C. § 1902(a) (requiring the stunning requirement only for livestock, not poultry).Some states e.g., California, have special legislation on this matter. Cf. Rowan et al., supra n. 43,at 59; Farm Sanctuary, Inc. v. Dept. of Food & Agric., 63 Cal. App. 4th 495, 508 (Cal. App. 2dDist. 1998).81. 7 U.S.C. § 1902(b); see also Jones v. Butz, 374 F. Supp. 1284 (S.D.N.Y. 1974); infra Sec.V(A) (discussing the definition and usage of “humane”).82. Perhaps the American approach to religious methods is due to the separation betweenreligion and state, and a completely different view of farm animals.83. Cf. Farm Sanctuary, Inc., 63 Cal App. 4th at 508.
84. In fact, the absence of licensing and supervision create the problems for groups without apermit. See infra Sec. IV(B).85. See Radford, supra n. 25, at 339.86. See Garde, supra n. 75, at 47; Comitato Nazionale per la Bioetica, Macellazioni Rituali eSofferenza Animale. (Documento approvato nella Seduta Plenaria del 19 settembre 2003).87. See Decreto legislativo 333/1998, 1 settembre 1998 n. 333: “Attuazione della direttiva93/119/CE relativa alla protezione degli animali durante la macellazione o l’abbattimento,”pubblicato nella Gazzetta ufficiale n. 226 del 28 settembre 1998,http://testo.camera.it/parlam/leggi/deleghe/testi/98333dl.htm (accessed Feb. 2, 2007). In Denmarktoo, a distinction is made between cattle and poultry, the killing of which does not require licensedpremises.88. Animal Welfare Act, Pub. Act No. 8485, § 6(1) (Phil. 1998).89. See Wolfson & Sullivan, supra n. 36, at 212.90. K.H. Kastner, Das tierschutzrechtliche Verbot des Schechtens aus der Sicht desBundesverfassungsgerichts, 57 JuristenZeitung 491, 492 (2002).91. See Schochet, supra n. 20, at 283.92. Dany Rothschild, Das Schächverbot der Schweizerischen Bundesverfassung 59(Buchdruckerei M. Lande 1955); Munk et al., supra n. 72, at 16.93. See Conforti, supra n. 63, at 1.94. Golan, Current Challenges, supra n. 60, at 20; Macellazioni rituali, supra n. 68, at 25.95. See Macellazioni rituali, supra n. 68, at 11.96. The European Parliament has repeatedly called for banning ritual slaughtering. SeeGolan, supra n. 60, at 58.97. Brian Carnell, UK Proposes Banning of Halal & Kosher Slaughter,http://www.animalrights.net/archives/year/2003/000246.htlm (June 29, 2003) (accessed Aug. 23,2006).98. The first part of the Rocella report (4-11) discusses the issue and sets out the conclusions.The Appendices (12-80) deal with various aspects of the problem and are mainly concerned withJudaism and Islam.99. See Cottier & Aldeeb, supra n. 60. This opinion is based on the premise that slaughteringwithout stunning is not obligatory for Jews or Muslims. The opinion is given on the basis of aparticular religious interpretations given by the authors of the opinion and not by religiousauthorities. This approach reminds us of periods of intolerance when religious interpretationsgiven by the State replaced religious opinions. This was, for example, the way of the EmperorJustinianus (Codex 1.9.8; Novella 146). See Alfredo Mordechai Rabello, Giustiniano, Ebrei e
Samaritani v. 2, 814 ff. (Milano 1979).100. Macellazioni rituali, supra n. 68, at 7.101. Id.102. Id. This question should be understood as part of the question of multiculturalism.103. But see supra n. 61.
104. See nn. 200 ff & accompanying text.
105. Cf. Brian Barry, Culture and Equality: An Egalitarian Critique of Multiculturism 303(Harv. U. Press 2001) [hereinafter Barry, Culture and Equality].106. See e.g. Barry, Culture and Equality, supra n. 105, at 44. For religious freedom andArticle 9 of the European Convention on Human Rights, see Malcolm D. Evans, Religious Libertyand International Law in Europe 281 (Cambridge U. Press 1997); Carolyn Evans, Freedom ofReligion Under the European Convention 67 (Oxford U. Press 2001); Peter Cumper, The PublicManifestation of Religion or Belief: Challenges for a Multi-Faith Society in the Twenty-firstCentury, in Law and Religion: Current Legal Issues 2001 vol. 4, 311 (Richard O’Dair & AndrewLewis eds., Oxford U. Press 2001); see also Alenka Kuhelj, Religious Freedom in EuropeanDemocracies, 20 Tulane European Civ. L. Forum 1, 2 (2005).107. In our view secularism should not be tantamount to religious intolerance. Truesecularism should be accompanied by admission that people are free to practice their religion,ensuring the right to be different.
108. See e.g. Fed. Const. of the Swiss Confederation art. 8(2) (Switz. Apr. 18, 1999); Const. ofthe Italian Republic art. 8(1) (Ital. Dec. 22, 1947); Basic Law for the Federal Republic ofGermany (Const.) art. 4(1) (Ger. Oct. 3, 1990); Const. of Spain art. 16(1) (Spain Dec. 29, 1978).109. Blackstone`s International Human Rights Documents 51 (P. Ghandi ed. 1995).110. Javier Martinez-Torrón, The European Court of Human Rights and Religion, in Law andReligion: Current Legal Issues 2001, supra n. 106, at 185.111. See C. Evans, supra n. 106, at 103; see also Cha ̀are Shalom Ve Tsedek v. France (GC),no. 27417/95, §§ 59, 74, ECHR 2000-VII (available at http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en) (enter case name under Case Title on HUDOC search page).112. Radford, supra n. 25, at 117. The Farm Animal Welfare Council in England, aprotagonist for the rights of farm animals, proposed to ban religious slaughter because it is notperformed by stunning but this proposition has not been accepted because the law “recognizes afundamental matter of religious belief to communities that are an important part of national life.”Id. at 339; see infra Sec. V(A)(1).113. Barry, Culture and Equality, supra n. 105, at 44; see infra Sec. VI (regarding theimporting of kosher meat).114. See Macellazioni rituali, supra n. 68, at 6.115. See e.g. Basic Law for the Federal Republic of Germany (Const.) art. 20(A) (definingresponsibility of the state to protect national resources and animals). It could be argued, though,that the law was intended in the ecological sense, and does not refer to animal abuse.116. It is arguable that the exclusive consideration of religious freedom might lead to extremesituations, such as sacrificing animals by adherents of various cults. It might raise numerousquestions by animal protectionists and be regarded as so-called “speciesism”—i.e., discriminationon the basis of belonging to different species, analogous to racism which discriminates betweenpeople of different races or nationalities. We do not examine this topic in this article.117. Of course, it is possible to claim that precisely to support the secular character of theFrench state, it is necessary to prohibit ritual slaughtering. See Christophe Marie, FondationBrigitte Bardot, Ritual Animal Slaughtering, http://www.fondationbrigittebardot.fr/site/fbb_a.php?IdPere=199&Id=199 (accessed Oct. 23, 2006). As we have pointed out, we shouldunderstand that secularism should leave room for religious tolerance. Supra Sec. III(A).
118. Cf. Garde, supra n. 75, at 329.
119. René Descartes, Discours de la méthode: suivi de La dioptrique 124 (Frédéric de Buzoned., Gallimard 1991). Voltaire (1694-1778) answered very harshly to this claim: “Answer me,machinist, has nature arranged all the means of feeling in this animal, so it may not feel?”Voltaire, A Reply to Descartes, in Animal Rights and Human Obligations 20, 21 (Tom Regan &Peter Singer eds., Prentice Hall 1989).120. See e.g. Brooman & Legge, supra n. 26, at 8-9.121. See Gary L. Francione, Animals: Property or Persons, in Animal Rights: Current Debatesand New Directions, supra n. 36, at 108, 108-115.122. Immanuel Kant, Lectures on Ethics 239 (Louis Infield trans., Harper & Row 1963); butsee Tom Regan, Defending Animal Rights 12 (U. Ill. Press 2001) [hereinafter Regan, DefendingAnimal Rights] (critizing Decartes’ position); Regan, The Case for Animal Rights, supra n. 35, at174. Kant recognizes that man has an indirect obligation not to be cruel to animals. His opinionis vulnerable to criticism on the basis that animals do not exist to fulfill the needs of man but existby their own right. Levy & Levy, supra n. 7, at 42. The Kantian attitude dominates, to a certainextent, the debate on the status of animals. See generally infra Sec. V(B).123. Jeremy Bentham, An Introduction to the Principles of Morals and Legislation 310(Oxford U. Press 1970). Bentham recognized that different species merit equal treatment. Hisopinion about animals is well known:The day may come when the rest of the animal creations may acquire those rights whichnever could have been withheld from them by the hand of tyranny. The French havealready discovered that the blackness of the skin is no reason why a human being shouldbe abandoned without redress to the caprice of the tormentor. It may one day come to berecognized that the number of legs, the villosity of the skin or the termination of sacrumare reasons equally insufficient for abandoning a sensitive being to the same fate. [T]hequestion is not Can they reason? nor “Can they talk?” but, “Can they suffer?”Id.
124. Singer, Animal Liberation, supra n. 7, at 5 ff. See also Peter Singer, Ethics into Action:Henry Spira and the Animal Rights Movement 45 ff. (Rowman & Littlefield 2000) [hereinafterSinger, Ethics into Action]. Singer is a supporter of utilitarianism, but on the basis of equality.Speaking in terms of utilitarianism may be too sweeping because utilitarianism includes variousconcepts and could be used in different contexts. See Brooman & Legge, supra n. 26, at 91-95(discussing utilitarianism with regard to animals); Regan, Defending Animal Rights, supra n. 122,at 13 (criticizing utilitarianism in the context of animal rights); see e.g. Bentham, supra n. 123, at310; David Lyons, Utility and Rights, in Readings in the Philosophy of Law 243 (Jules L.Coleman ed., Garland Publg. 1999); Anthony Quinton, Utilitarian Ethics 1-10 (St. Martin’s Press1973); see also Joan Dunayer, Speciesisim (Ryce Publg. 2004); Levy & Levy, supra n. 7, at 172.125. That is considered discriminating between a human and non-human animals on theground they belong to different species. Singer, Animal Liberation, supra n. 7, at 213; see alsoPaola Cavalieri, The Animal Question: Why Nonhuman Animals Deserve Human Rights 69(Catherine Woollard trans., Oxford U. Press 2001).126. See e.g. Regan, The Case for Animal Rights, supra n. 35. It is noteworthy to point outthat Rabbi I.A. Kook explicitly refers to “the rights of animals,” e.g., in his TalmudicCommentary. Ein Haia, Shabbat, vol. a, 109 (Jerusalem 1994).127. Regan, The Case for Animal Rights, supra n. 35, at xvii, xxii. His ideas have beenharshly criticized. See id. at preface; see also Carl Wellman, The Proliferation of Rights: MoralProgress or Empty Rhetoric? 108 (Westview Press 1999).128. See e.g. Gary L. Francione, Animals, Property, and the Law 12 (Temple U. Press 1995)[hereinafter Francione, Animals, Property, and the Law] (proposing that we should not relate toanimals in terms of property).129. But see David Favre, Equitable Self-Ownership for Animals, 50 Duke L.J. 473, 476(2000).130. See e.g. Joseph Raz, The Morality of Freedom 176 (Oxford U. Press 1988) [hereinafterRaz, The Morality of Freedom]. According to Raz, rights are based on the principle ofreciprocity. Animals cannot have rights because they cannot claim rights. Furthermore, how canwe maintain that animals have rights if they are the property of man and subject to his will (withcertain limitations)? If so, is not man obliged to honor those belonging to different referentialgroups? And what are the boundaries of “the same moral community?” This does not mean thatman’s sentiments toward animals should not be taken into consideration. Incidentally Raz compares the feelings of man towards animals to his own sentiments towards objects d’art in hispossession. Id. at 179; cf. Alan White, Why Animals Cannot Have Rights, in Animal Rights andHuman Obligations 119, 120-121 (Tom Regan & Peter Singer eds., 2d ed., Prentice Hall 1989).131. Person A can only claim rights from B if A has the choice to demand a certain conductfrom B and is in a position to enforce it. According to this criterion, animals cannot be regardedas having rights because they do not have the choice to implement their rights. Only humans can.This approach does not explain why people with handicaps, who cannot claim their rights arenevertheless regarded as having rights. Cf. L.W. Sumner, The Moral Foundation of Rights 46,203-204 (Oxford U. Press 1989).132. For example no one would argue that animals have a right to education or citizenship.133. See Alan Gewirth, Are there Absolute Rights?, in Theories of Rights 91 (Jeremy Waldroned., Oxford U. Press 1984).134. Cf. A. Sohm-Bourgeois, La personification de l’animal: une tentation à repousser, DallozChronique 33-37 (1990).135. Some theorists try to avoid the problem of comparing humans to animals by using theword “interests” instead of “rights” to describe what animals should be legally entitled to, but thisis purely a matter of semantics. See Joel Feinberg, Harm to Others 58, 70 (Oxford U. Press 1984)(concerning animals “interests”).136. See Margaret Mc Donald, Natural Rights, in Theories of Rights, supra n. 133, at 21;Joseph Raz, The Authority of Law passim (Oxford U. Press 1979).137. Where utilitarianism fails to provide for concern and respect for persons, rights becomenecessary. See e.g. Ronald Dworkin, Rights as Trumps, in Theories of Rights, supra n. 133, at153; Ronald Dworkin, Taking Rights Seriously xi (Harv. U. Press 1977) [hereinafter Dworkin,Taking Rights Seriously]; see also Francione, Animals, Property, and the Law, supra n. 128, at103. The idea of rights as trumps has generated critics. See e.g. Dworkin, Taking RightsSeriously, at 365 (providing a response to Prof. Joseph Raz); see also Jeremy Waldron, Pildes onDworkin`s Theory of Rights, 29 J. Leg. Stud. 301, 303 (2000).138. Raz, The Morality of Freedom, supra n. 130, at 177; see e.g. J.W. Harris, LegalPhilosophies 83 (Butterworth & Co. 1997) (providing criticism about the difficulty of defininglegal relationships in terms of obligations and rights); Wesley Newcomb Hohfeld, FundamentalLegal Conceptions: As Applied in Judicial Reasoning and Other Legal Essays 11 ff. (DavidCampbell & Philip Thomas eds., Ashgate 2001) (concerning the rights-obligations relationship).139. This argument is based on the view that the issue of cruelty to animals concerns theprotection of human feelings, not the enforcement of an ethical norm. See Avinoam Ben-Zèev,The Reason for the Prohibition on Abusing Crocodiles, 4 Mishpat Umimshal 763 (1998)(Hebrew) (arguing that the rationale for prohibiting animal abuse is emotional rather than ethical);Yossi Wolfson, The Moral and Legal Status of Nonhuman Animals, 5 Mishpat Umimshal 551(2000) (Hebrew) (commenting on Zèev’s view).
140. See e.g. Barry, Culture and Equality, supra n. 105, at 131 (suggesting it is easier to acceptthe idea of tolerance than to come to terms with its interpretation).141. The case of bull fighting is justified in countries like Spain on the ground that it is part ofa national tradition, indeed sometimes understood as ritual practice. There is, of course, adistinction in that the discussion on ritual slaughtering is not as much about the practice,(slaughtering) as about the particular method. In the countries condoning bull fighting, the verypractice is at stake.142. We can point out the position of Rabbi Ovadia Yoseph who argues that this practice isprohibited according to Jewish law. See Eshkoli, supra n. 15, at 209.143. Although protection is needed for religious sentiments, the freedom of religion orfreedom from religion are universal values, as we shall see below.144. See Macellazioni rituali, supra n. 68, at 4.
145. Will Kymlicka, Politics in the Vernacular: Nationalism, Multiculturalism and Citizenship210 (Oxford U. Press 2001).146. See e.g. Sally Engle Merry, Changing Rights, Changing Culture, in Culture and Rights:Anthropological Perspectives 31, 38 (Jane K. Cowan, Marie-Benedicte Dembour & Richard A.Wilson eds., Cambridge U. Press 2002).147. Barry, Culture and Equality, supra n. 105, at 33.148. See e.g. Bhikhu Parekh, Rethinking Multiculturalism: Cultural Diversity and PoliticalTheory 196, 264 ff. (2d ed., Palgrave Macmillan 2006) (concerning multiculturalism); AyeletShachar, Two Critiques of Multiculturalism, 23 Cardozo L. Rev. 253 (2001); Yael Tamir, TwoConcepts of Multiculturalism, in Multiculturalism in a Democratic and Jewish State: The ArielRozen Zvi Memorial Book 79 (Menachem Mautner, Abraham Sagi & Ronen Shamir eds.,Universitat Tel Aviv 1998) (Hebrew).149. For example, in certain countries, Sikhs riding motorcycles are exempted from wearingcrash helmets because they wear turbans. Jacob T. Levy, The Multiculturalism of Fear 125-127(Oxford U. Press 2000); see also Kymlicka, supra n. 145, at 163 (listing various adjustments);Tina S. Boradiansky, Student Author, Conflicting Values: the Religious Killing of FederallyProtected Wildlife, 30 Natural Resources J. 709, 727 (1990) (regarding the problems ofaccomodation in the conflict between defense of wildlife and Indian religious practices). Wemight also cite the permission for the church to produce wine during Prohibition in the U.S.,permission for Jews to work on Sundays though it is a day of rest for non-Jews, etc. Cf. J. Levy,
id. at 127.150. See e.g. Jones, 374 F. Supp. 1284 (discussing accommodations of religious practices bygranting exemption from statutory obligations).151. Carl Cohen & Tom Regan, The Animal Rights Debate 3 (Rowman & LittlefieldPublishers 2001).152. According to Jewish tradition, this practice stems from the times of Noah—after thedeluge. See supra nn. 11 & 12.153. Of course, it can be argued that, without the need for meat, the great majority of animalsraised today for food would not exist at all, because they wouldn’t have been needed. From thepoint of view of species survival, it could be argued that domesticated animals are a biologicalsuccess because they survived in greater numbers than wild species. Humans have a vestedinterest in cattle and poultry and promote their proliferation by methods which are not alwaysacceptable. Whether bringing a living thing into the world also gives the right to put it to death isa complex issue outside the scope of this discussion.154. See Jones, 374 F. Supp. 1284 (holding that there was no fault in the use of kosher meatpermitted by U.S. law); see e.g. Pamela D. Frasch et al., Animal Law 403 (Carolina AcademicPress 2000) (explaining that, as in other cases, this decision was based on the principle of religiousfreedom, ignoring the aspect of cruelty to animals).155. See e.g. A.I. Kook, Telalei Oroth, in Mamarè Harayah 26 ff. (Jerusalem 5744) (Hebrew)[hereinafter Kook, Telalei Oroth] (essay on vegetarianism). See text accompanying infra nn. 233-235 (discussing the opinion of Rabbi A.I. Kook).156. See Abraham Isaac Kook, Abraham Isaac Kook: The Lights of Penitence, the MoralPrinciples, Lights of Holiness, Essays, Letters, and Poems 316 (Ben Zion Bokser trans., PaulistPress 1978).157. Barry, Culture and Equality, supra n. 105, at 296.158. For some observant Jews, eating meat should be understood as an obligation on Shabbatand Holidays.159. See Barry, Culture and Equality, supra n. 105, at 35, 40.160. Cf. Dworkin, Taking Rights Seriously, supra n. 137, at 205 (“The institution of rights istherefore crucial because it represents the majority promise to the minorities that their dignity andequality will be respected.”).
161. Barry, Culture and Equality, supra n. 105, at 41.162. It is sufficient to mention certain cults performing unusual actions, including cruel tortureof pets.163. See Barry, Culture and Equality, supra n. 105, at 133.164. The problem here is not the permission for whaling, but the cruel methods used by theaboriginals. See id. at 254.
165. HCJ 9232/91, Noah (Israeli Assn. to Protect Animals) v. Atty. Gen., at IsrSC 57(6)212(2003) (banning the practice of force-feeding geese).
166. See e.g. European Convention on Human Rights art. 9(1), 14 (distinguishing betweenfreedom of religion and freedom from discrimination). Indeed, there are cases in which thefreedom of religion is impaired and it is not deemed discrimination, for example, if the prohibitionof displaying religious expressions was applied to the entire population. See e.g. PoliticalConstitution of the United States of Mexico art. 3(IV) (Mex. Feb. 5, 1917).167. E.g. Nahrstedt v. Lakeside Condo. Assn., 878 P.2d. 1275, 1290 (Cal. 1994); Young v.Savinon, 492 A.2d. 385, 389 (N.J. Super. App. Div. 1985).168. Tenn. Valley Auth. v. Hill, 437 U.S. 153, 158-159 (1978).169. See Golan, supra n. 60, at 14 (arguing that the prohibition in Switzerland had anti-Semiteroots). The prohibition began with the emigration of Jews to Switzerland from Czarist Russia.See also Pascal Krauthammer, Das Schächtverbot in der Schweiz, 1854-2000: die Schächfragezwischen Tierschutz, Politik und Fremdenfeindlichkeit 253 (Schulthess 2000).170. This is the opinion expressed in the report of the Swiss Institute of Comparative Law.See Cottier & Aldeeb, supra n. 60, at 11.
171. Dr. Zerach Warhaftig, The Historical and Legal Battle over Jewish Shechita, 52 Sinai 195ff. (5723) (Hebrew) (our citations are from http://www.daat.ac.il/daat/kitveyet/ sinay/hamavak-4.htm); see also B. Nahmani, The Battle against the Jewish Schechita (Hebrew),http://www.daat.ac.il/daat/kitveyet/mahanaim/hamaavak.htm (accessed Feb. 6, 2007); see alsoKrauthammer, supra n. 169, at 153.172. It is interesting to note that the liberal Italian newspaper La Stampa also found aconnection between the prohibition and antisemitism. The newspaper points out that one ofHitler’s first acts after he took power on Jan. 30, 1933, was to prohibit Jewish shechita as early asApr. 21 of the same year. La Stampa (Italy), Cronologia dell'Olocausto (Chronology of theHolocaust), http://www.lastampa.it/_web/_SERVIZI/speciali/GiornoMemoria/cronologia.asp(accessed Jan. 12, 2007).173. Warhaftig, supra n. 171 (passim). This was the case also for my late grandfather, Prof.Alfredo Michael Rabello (A.M.R.).174. Rabbi B.Z. Uziel, Sefer Mishpete Uziel (Responsa), vol. 1, Yore Deah, ¶ a (Yerushalayim1997) (Hebrew) (Responsa). This Responsum is presented (in Hebrew) in the Bar Ilan UniversityResponsa Project CD; see infra n. 176.175. B. 1885 Russia d. 1966 Switzerland.176. Rabbi J.J. Weinberg, Seride Esh: sheelot uteshuvot, (Responsa) edited by A.A. Weingorth& Sh.A. Hacohen Rapoport, (Havaad lehozaat kitve hagaon harav J.J. Weinberg), Jerusalem,1999, Part II # 4 App. 3 Ltr. 12 (# b), 199. The subject of this Responsum is himum habeemot aliede chashmal (the stunment of animals by electricity). The authors obtained this Responsum (inHebrew) in The Responsa Project of Bar-Ilan University, CD version 14+ (2006), s.v. Sheelotutshuvot (Responsa) Seridei Esh. This project appears on the internet as The Online JudaicResponsa (Bar-Ilan University Responsa), http://www.responsa.co.il/ (accessed Feb. 7, 2007).Seridei Esh appears in the online project as numbers 276-277,http://www.biu.ac.il/JH/Responsa/CDI/bookse.htm#Responsa (accessed Feb. 7, 2007). TheResponsa Project CD is the source of the Hebrew text of all the Responsa quoted in this article.
177. Weinberg, Seridei Esh: sheelot utshuvot, Part II # 4, himum habeemot al iede chashmalPrefation, p. 28 adds:Devoted Jews would not listen to us, they would rather suffer and go hungry than defilethemselves by eating beef slaughtered by the method prescribed by their evil persecutors.The foul tyrant, head of the Nazi regime and thousands more like him will perish fromthis world, but our holy religion will prevail forever. The Jews in Germany must standthis ordeal for our holy religion and for the sake of our brethren all over the world. If—God forbid—we rule to be lenient regarding this type of slaughter, we would endangerJewish kosher slaughter all over the world. We have to show the world that we areprepared to suffer for our religion, and when our enemies see that the prohibition ofkosher slaughter does not divert Israel from religion—perhaps they would let it go.178. Weinberg, Seridei Esh: sheelot utshuvot, Part II # 4, himum habeemot al iede chashmalPrefation, p. 28.179. See e.g. Paul Valley, Muslims Unite with Jews to Defend Animal Slaughter Rites;Government Told to End Religious Exemption from Animal Welfare, The Independent (London) 3(June 11, 2003); BBC News World Edition (BBC June 10, 2003) (TV broadcast) (text available athttp://news.bbc.co.uk/2/hi/uk_news/2977086.stm); Aisha Labi, A Stunning Debate: A Proposal toBan Ritual Slaughter in the U.K. Forges an Unlikely Alliance of Muslims and Jews,http://www.time.com/time/europe/magazine/article/0,13005,901030623-458740,00.html (accessedJan. 12, 2007).180. Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993); Curnutt, supran. 29, at 187.
181. Church of the Lukumi Babalu Aye, 508 U.S. at 525.182. Id. at 526 (“[T]he City Council adopted Resolution 87-66, which noted the ‘concern’expressed by residents of the city ‘that certain religions may propose to engage in practices whichare inconsistent with public morals, peace or safety.’”).183. Id. at 527-528.184. Incidentally, Justice Scalia commented that even if the ordinances only intended toprotect animals, it was illegal. Id. at 559. Indeed, militant defense of animals, even withoutulterior motives, could harm minorities.
185. See infra at text accompanying nn. 200 ff.186. See Golan, supra n. 60, at 32.187. Around 3,500,000 Muslims are living in Germany. See Euro-Islam.info, CountryProfiles: Germany, http://www.euro-islam.info/pages/germany.html (accessed Jan. 12, 2007).The number of Jews is around 100,000.188. Curnutt, supra n. 29, at 187; see David O’Brien, Animal Sacrifice and ReligiousFreedom: Church of the Lukumi Babalu Aye v. City of Hialeah 1-22 (U. Press Kan. 2004)(regarding the history and a detailed survey of the background).189. We do not know of any other religion in Europe with problems regarding the slaughteringof animals for food. A similar problem concerns Confucianism but it is about treatment ofanimals after death. In any case, the question is of theoretical interest.190. We have referred before to the leniency we find in certain non-European legislation as totribal practice. This is the case of Filipino law. See supra n. 88. Conversely, we can take theexample of Hinduism that, unlike other faiths, considers the cow a sacred animal. We certainly donot expect a uniformity of religious attitude to animals, but this does not mean that it is necessaryto abandon improvements in the situation of animals throughout the world and avoid cruelty.191. Brigitte Basdevant-Gaudemet, The Legal Status of Islam in France, in Islam andEuropean Legal Systems 97, 114 (Silvio Ferrari & Anthony Bradney eds., Ashgate 2000).
192. See Cha ̀are Shalom ve Tsedek, 27417/95 at ¶ 2.193. Id. at ¶ 35-36.194. Id. at ¶ 69 (stating that one of the two reasons on which the government based its denialwas that Sha’arei Shalom had about 40,000 adherents compared to 700,000 for ACIP).195. See infra Sec. VI (regarding the issue of imported meat).
196. See T. Jeremy Gunn, Adjudicating Rights of Conscience under the European Conventionof Human Rights, in Religious Human Rights in Global Perspective: Legal Perspectives 305-330(Johan D. van der Vyver & John Witte, Jr. eds., Martinus Nijhoff Publishers 1996) (regarding thelimitations of the Court of Human Rights to administer problems concerning freedom of religionand conscience).197. See e.g. Marie-Benedicte Dembour, Following the Movement of a Pendulum: BetweenUniversalism and Relativism, in Culture and Rights: Anthropological Perspectives, supra n. 146,at 74 (discussing the so-called margin of appreciation).
198. BverfG (Federal Constitutional Court), 1 BvR 1783/99 (Jan. 15, 2002); JZ 10/2002, 500;see Rico Faller, Staatsziel “Tierschutz”: vom parlamentarischen Gesetzgebungsstaat zumverfassungsgerichtlichen Jurisdiktionsstaat? 88 (Duncker & Humblot 2005); ChristineLangenfeld, Germany, 1 Intl. J. Const. L. 141 (2003); Kate M. Nattrass, “ . . . Und die Tiere”Constitutional Protection for Germany’s Animals, 10 Animal L. 283, 291 (2004).199. See supra Sec. II(A). It should be noted that University of Cairo is not a Muslimreligious authority, and there were some misunderstanding as to the exact meaning of this fatwa.See supra n. 62 and accompanying text.200. See e.g. Gerhard Robbers, The Legal Status of Islam in Germany, in Islam and EuropeanLegal Systems, supra n. 191, at 149.201. The case concerned a Turkish resident without German citizenship.202. In Germany, local arrangements have been in force for many years to satisfy the needs ofMuslims, including importing halal meat.203. Langenfeld, supra n. 198, at 144.
204. Cf. Kastner, supra n. 90, at 495.205. See Basic Law for the Federal Republic of Germany (Const.) art. 20a.206. Id. at Appendix (available at www.iuscomp.org/gla/statutes/GG.htm#weimar) (accessedJan. 12, 2007).207. Cf. Kymlicka, supra n. 145, at 22.208. Bürgerliches Gesetzbuch (BGB) (Civil Code) § 90a: “Animals are not things. They areprotected by special laws. The provisions dealing with things shall analogously apply to them,insofar as not yet otherwise provided.” See e.g. Rolf Steding, § 90a BGB: nur juristischeBegriffskosmetik?—Reflexionen zur Stellung des Tieres im Recht, Jus 962 (1996).
209. See 7 U.S.C. §§ 1901-1907; Wolfson & Sullivan, supra n. 36, at 207; see e.g. AnimalWelfare in Europe, supra n. 31, at 6; see also Elizabeth L. Decoux, In the Valley of the DryBones: Reuniting the Word “Standing” with its Meaning in Animals Cases, 29 Wm. & MaryEnvtl. L. & Policy Rev. 681, 682 (2005).
210. I.M. Levinger, Shechita in the Light of the Year 2000, at 12 (Maskil L’David, Jerusalem1995) (“The terms humane and slaughter represent a paradox. Slaughter cannot be humane byany method, for slaughter is cruel. And yet the slaughter of animals being a necessity, must beperformed as humanely as possible.”); Munk et al., supra n. 72, at 107; Rowan et al., supra n. 43,at 18; see e.g. Abraham Isaac Kook, Hazon ha-tsimhonut veha-shalom: mi-behinah Toranit: orotmeha-maamarim Afikim ba-Negev veTelalei Orot 8 (David Cohen ed., Yerushalayim 1960-61)(Hebrew) [hereinafter Kook, Hazon ha-tsimhonut veha-shalom]: “It cannot be conceived that themerciful Maker of the universe prescribed an eternal rule in His goodly works, which does notenable mankind to exist without uprooting its morals by bloodshed, even the blood of animals.”Id.211. In this context, it is interesting to note the Talmudic anecdote (BT Baba Metzia 85a)about R. Judah the Patriarch (editor of the Mishnah). The Talmud inquires the reason for thesuffering which R. Judah has had to endure, and says that they had come and gone as a result ofhis conduct. “They came to him through a certain incident.” What is it?—A calf was being takento the slaughter, when it broke away, hid his head under Rabbi’s skirts, and lowed [in terror].“Go,” said he, “for this were you created.” Thereupon they said [in Heaven], “Since he has nopity, let us bring suffering upon him.” “And [the suffering] departed likewise.” How so?—Oneday the Rabbi’s maidservant was sweeping the house; [seeing] some young weasels lying there,she made to sweep them away. “Let them be,” said he to her; “It is written, and his tender merciesare over all his works. Said they [in Heaven], “Since he is compassionate, let us be compassionateto him.” See e.g. Kook, Hazon ha-tsimhonut veha-shalom, supra n. 210, at 8.212. Regan, The Case for Animal Rights, supra n. 35, at 330.213. See Rowan et al., supra n. 43, at 10.214. Of course scientific developments always involve ethical issues.215. See Weinberg, supra n. 176, at vol 1; R. Z.P. Frank, Beinyan Girushin, hagaalathporcelain, vehimum leschechita Vayita Eshel 5750 # 543 (Hebrew); R. Yosef Razin, HimumBehemah Kodem Schechita, in Atereth Hakahamim 41-46 (Hebrew); R.H. Grodzhinsky, HimumBehemah Leachar Schechita, in Atereth Hakahamim 5697 47-48 [5743] (Hebrew); R.Y.M.Schlesinger, Himum Behemah Lifnei Schechita, in Esh Tamid 5741-5744 [5749] (Hebrew); R.D.Z.Hoffmann, Himum Behemah al yedei Shikrouth, in Hamaayan 34, 5754 9-20 (Hebrew); Eshkoli,supra n. 15, at 607.The works by Frank, Razin, Grodzhinsky, Schlesinger & Hoffman are quoted in theBibliography of the Responsa Project of Bar-Ilan University. See supra n. 176.
216. See e.g. I.M. Levinger, Schechita in the Light of the Year 2000: Critical Review of theScientific Aspects of Methods of Slaughter and Shechita 121-127 (Maskil L’David 1995)[hereinafter Levinger, Schechita in the Light of Year 2000] (discussing in detail the variousmethods of slaughter); L.S. Shore, The Scientific Approach to Resolving Conflicts betweenVeterinary Science and Schechita, 54 (1) Israel Journal of Veterinary Medicine (1999) (availableat http://www.isrvma.org/article/54_1_4.htm).217. Schochet, supra n. 20, at 284.218. Riccardo Di Segni, Noten ta`am Le-shevah: tà ame ha-kashrut be-farshanut ha-Yehudit(The Jewish Interpretation of Dietary Laws) 43 (Lamed 1998) (Hebrew); see also Riccardo DiSegni, Macellazione rituale (Shechitah) Allegato 5, in Macellazioni Rituali, supra n. 68, at 59 ff.219. Authors’ interview with Dr. Zichron Chason, DVM, Denmark, (Apr. 12, 2005). In this interview Dr. Chason argues also that CO2 induced anesthesia was preferable to electric stunning.The efficiency of this method had been proven in killing pigs in Denmark; but it was never usedfor cows, perhaps due to technical difficulties. In any case, it has to be ascertained that thismethod was acceptable by Jewish law. Furthermore, the possibility of acupuncture should beinvestigated, because it significantly reduces pain for men and animals. Id.220. Hakhamim, Yoré Deà § 1. This Responsum is presented (in Hebrew) in the Bar IlanUniversity Responsa Project CD; see supra n. 176. Ha-Levi was born in Yemen, came to Israel in1923, d. 1973.221. The prohibition is reiterated by R.M. Roth: “To conclude, it is clear from the halakhicpoint of view that electric shocks render the animal treifa (unfit to eat) and it is prohibited to use.And observant Jews must not partake in it because it is an abomination.” Responsa Kol MevaserPart I # 81 s. v. ulam; also R. I.J. Weiss (1902-89), Responsa Minhath Itzhak Part II # 27. (ThisResponsum is presented (in Hebrew) in Bar Ilan University Responsa Project CD; see supra n.176.):[C]oncerning stunning before slaughter (a) it is not true that schechita is a more painfuldeath than any other method, it has been ascertained by experts (b) and the religiousprohibition of cruelty to animals does not apply at the time of death . . . and Maimonidesand Nachmanides also state that schechita is the most merciful method . . . .These Responsa are presented (in Hebrew) in the Bar Ilan University Responsa Project CD; seesupra n. 176.222. Levinger, Schechita in the Light of the Year 2000, supra n. 216, at 20:Today a method of slaughter is being sought which will, with certainty, eliminate painperception in the animal and at the same time, ensure good exsanguination. Schechita, ifit is correctly carried out without previous stunning, represents a method which complieswith these postulates. Brain function is eliminated and ceases very rapidly, whereasheart function ceases only later, thus ensuring a high degree of exsanguinations.Id. at 128; see also I.M. Levinger, Haschechita veZa`ar Baalei Chaim, especially the addendum at175 (Jerusalem 2004) (Hebrew).
223. Barry, Culture and Equality, supra n. 105, at 42; see also id. at 296 (complaining that theBritish government took into consideration the opinion of Jews and Muslims since “these leadershad an entrenched position based on religious belief and no credentials as scientists.”).224. See Department for Environment, Food, and Rural Affairs (DEFRA), FAWC Report onthe Welfare of Farmed Animals at Slaughter or Killing-Part 1: Red Meat Animals,http://www.defra.gov.uk/animalh/welfare/farmed/final_response.pdf (accessed Jan. 12, 2007).
225. All forms of exploitation are likely to raise ethical questions. See e.g. Regan, The Casefor Animal Rights, supra n. 35, at 151.226. Only human beings can be defined as moral agents, but this does not exclude othercreatures from being moral patients. The inclusion of animals in the category of moral patientsdoes not contradict slaughter because neither Judaism nor Islam negate a moral viewpoint towardanimals. On the contrary, Scriptures command us to prevent abuse of animals.227. The principal advocate of the idea that animals have a moral status is Tom Regan.Nevertheless, we are aware that important thinkers do not think that animals are included in moralconsiderations, and the obligation toward them is that of protecting the feelings of others.228. See supra Sec. II(A).229. Professionalism plays an important role indeed in all aspects relating to the treatment ofanimals. And it is commonly accepted that treatment of the animals must be in the hands ofhighly skilled persons. For example, all animal experiments must be supervised by a veterinarian.Similarly, Jewish tradition stresses the professional character of the slaughterer.230. To be sure, the requirement of moral integrity applies to every candidate for public officein the Halakhah. Moreover the Jewish slaughterer must pass an exam every year before therabbinical authority who approves his physical fitness to be a schochet.
231. Kook, Telalei Orot, supra n. 155, at 26 ff. Kook, Hazon ha-tsimhonut veha-shalom,supra n. 212. It should be remembered that the late Rabbi Shlomo Goren, former Chief Rabbi ofIsrael, was a strict vegetarian.232. As it is commonly known, Jewish religion forbids the eating of blood. One of the aims ofthe shechita is to allow the draining of the blood. According to Dr. Chason, Shechita facilitatesthe important aim of exsanguinations. Interview with Dr. Chason, supra n. 219. Together withthe incision made at the throat, it is also necessary to sever the wind-pipe esophagus and the vagusnerve which ceases the functioning of the parasympathetic nervous system, only the sympatheticnervous system remains functioning, the heart-beat rate increases and the blood leaves the bodybefore the heart stops beating. This results in maximum blood flow, and the pain of the animal isreduced to minimum. Exsanguination also prevents certain diseases contracted from the animalby man.
233. Kook, Telalei Orot, supra n. 155, at 27.234. Singer, Animal Liberation, supra n. 7, at 8.235. Cohen & Regan, supra n. 151, at 38-40 (arguing against bestowing rights to animals andadvocating their use by humans).236. Brian Barry, Theories of Justice 203 ff. (U. Cal. Press 1989); Cavalieri, supra n. 125, at89.237. See e.g. Singer, Ethics into Action; supra n. 124, at 156, 158. See also Singer, AnimalLiberation, supra n. 7, at 154.238. For example, Swiss Law § 61(3) takes scientific progress into consideration.239. The application of the Halakhah should relate to changing circumstances. E.g. Aviner,supra n. 5, at 432; Rosenfeld, supra n. 5, at 258; Meisels, supra n. 5, at 366.240. See e.g. Jones, 347 F. Supp. 1284. In this sense Jews and Muslims led the way in animalwelfare. For example R. Saadiyah Gaon asserts that those merciful to animals are rewarded byHeaven. Emunoth Vedeoth Ch. V, cited in Levy & Levy, supra n. 7, at 65.241. Masri, supra n. 22, at 86.
242. Waters v. People, 46 P. 112, 115 (Colo. 1896).243. We have to note that people sometimes agree to donate organs or volunteer for medicalexperiments. Cf. Alfredo Mordechai Rabello, An Equitable Distribution of Human Organs forTransplantation (Hebrew U. Jerusalem 2003); Menachem Elon, Neshamah Yetherah Bamishpat(Additional Soul in Law: A Selection of the Writings of Justice Menachem Elon) 134 ff. (AviadHacohen ed., Mozaikah 2003) (Hebrew).244. See Michael D. Bayles, Introduction, in Contemporary Utilitarianism 1 (Michael D.Bayles ed., Anchor Books 1968) (“Utilitarianism is a normative theory of ethics which, in themost general terms, claims one ought to do those actions which produce good or avoid evil foreveryone.”). In other words see also J.S. Mill, Utilitarianism, in Studies in Utilitarianism 39, 44-45 (Thomas K. Hearn, Jr. ed., Appleton-Century-Crofts 1971) (“Actions are right in proportion asthey tend to produce happiness.”) Robert L. Arrington, Western Ethics: An HistoricalIntroduction 318 (Malden 1988) (discussing the theories of Bentham and Mill); J.J.C. Smart,Extreme and Restricted Utilitarianism, 6 J. Phil. 344 (Oct. 1956).245. This argument might be expressed as follows: “Kantianism for people—utilitarianism foranimals.” In the opinion of Kant, only humans exist as an end in themselves (independently of thefact that we should treat animals with compassion). See e.g. Kant, supra n. 122, at 239; AllenWood, Humanity as End in Itself, in Kant’s Groundwork of the Metaphysics of Morals: Critical
Essays 165, 171 (Paul Guyer ed., Rowman & Littlefield Publishers 1998); Regan, The Case forAnimal Rights, supra n. 35, at 174. The utilitarian approach is advocated by numerous authorities,e.g., Prof. Nozick who is of the opinion that animal suffering is a question of relative costs,meaning that morally, animals should not be made to suffer, but if their suffering is beneficial tohumans, then it may be permissible. Robert Nozick, Anarchy, State and Utopia 35, 39 (BasicBooks, Inc. 1974); see also P. Lerner, Reflections on Feeding Stray Cats, 9 Ha-Mishpat 407(2004) (Hebrew).246. This argument is far from satisfactory for animal protectionist organizations.247. See e.g. (Animal Welfare Act) § 7, May 25, 1998, BGBl. I (Federal Law Gazette) at 1094(Ger.).248. These criteria were published by two British scientists, Russel and Bursh in 1959. Sincethen they have gained acceptance by most legal systems, in spite of the differences betweenvarious countries. See M. Salvi, Integrità e Valore Intrinseco negli Animali—Il Caso olandese, inPer un Codice degli Animali: Commenti sulla Normativa Vigente, supra n. 34, at 210.
249. In the case of non-vegetarian people.250. This argument would be made if it was proven that the suffering was greater than inslaughtering with stunning. As far as we know, this has not yet been proven beyond doubt.251. According to Singer, Rabbinical authorities in Sweden, Norway and Switzerlandcondoned stunning before slaughter. Singer, Animal Liberation, supra n. 7, at 154. After the visitof Chief Rabbi Goren to Sweden, this approach was changed, and stunning is no longer accepted.See Golan, supra n. 60, at 23; see also supra n. 217 and accompanying text. On the other hand, itis possible that in the future halakhic authorities will explore other ways to adjust halakhicrequirements to the demands of animal protectionists for stunning.252. On this point it is possible to find the agreement of authors like Barry who do not agreewith multiculturalism. See Barry, Culture and Equality, supra n. 105, at 43.253. In Switzerland, the importing of kosher meat is not regulated although there is de factopermission. Until now, the voices calling to forbid the importing of kosher or halal meat have notsucceeded in changing the status quo. See Golan, supra n. 60, at 15.
254. Michael Mc Connell McConnell & Richard A. Posner, An Economic Approach to Issuesof Religious Freedom, 56 U. Chi. L. Rev. 1, 56-60 (1989) (discussing the relationship betweenreligious freedom and economics).255. See Golan, supra n. 60, at 23.256. Hence, a unique aspect of shechita with regard to the freedom of occupation is that ashochet (person performing slaughter) cannot slaughter by other methods at odds with theHalakhah, and therefore he may not work in “secular” slaughtering.
257. Act 1980-6-20, § 2.258. In any case, the slaughtering of cows in Israel is carried out on a very small scale becausemost of the beef is imported, but it is only permissible to import kosher beef. As far as we know,most of the non-kosher meat sold in Israel is pork, although non-kosher beef is also sold afterslaughtering, if declared as non-kosher. As a matter of fact, it is difficult to get beef of cowsslaughtered after stunning. Although we have not done an exhaustive research on the point itseems that those who are selling it (butchers, restaurants) are not aware of this point.259. This is not an imaginary scenario. There have been attempts in this direction in the past.See Proposed Prevention of Cruelty to Animals Act (protection of animals) (amendment stunningbefore slaughter) 5764-2004 § a. “Animals must not be slaughtered unless first stunned so as toreduce the suffering caused at the time of slaughter; b. The Minister of Agriculture will specify theexact method of stunning.” A similar bill was proposed in 2000. The former M.K.A. Poraz(Shinui Party) said: “the purpose of this proposal is to prevent unnecessary suffering from animalscaused by the traditional method of slaughter. The slaughtering of animals will be prohibitedunless previously stunned by electric shock preventing suffering.” (From the internet site ofShinui for the 15th Knesset.) This position is opposed to the scientific conclusion of the study byDr. Levinger. See Levinger, Schechita in the Light of the Year 2000, supra n. 212.In reaction to a late stunning proposal of M.K. Shalgi (Shinui Party) in the 16th Knesset,the Chief Rabbi of Israel Shlomo Amar declared his opposition to the proposal since stunningbefore Shechita is forbidden according to Halacha. Ma’ariv (May 6, 2004),www.maariv.co.il/online/11/ART/705/268.html (accessed Feb. 19, 2007).260. Kook, Hazon ha-tsimhonut veha-shalom, supra n. 210, at 20.

fonte: http://www.istitutobioetica.org/ricerche/contributi/mordechai_macellazione.htm