UNDERSTANDING THE DEBATE IN EUROPE ON RITUAL SLAUGHTER: VERY INTERESTING
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THE PROHIBITION OF RITUAL SLAUGHTERING(KOSHER SHECHITA AND HALAL) AND FREEDOM OF RELIGION OF MINORITIES BY
Pablo Lerner* and Alfredo Mordechai Rabello**
INTRODUCTION
The statutory prohibition against ritual slaughter, which does not
stun the animal prior to slaughter, as required in most Western nations,
poses a significant challenge for the international right to freedom of
religion or belief in European nation-states. 2 This prohibition is
important not only in Europe, or because of the prohibition itself, but
because it implicates the legal status of two minority religious
communities in these nation-states, those of Judaism and Islam. Some
animal rights advocates have objected to ritual slaughter without
stunning because, in their view, it causes needless suffering by the
animal,3 and they have been successful in getting their views enacted
into law in a number of European countries. Indeed, some countries
prohibit ritual slaughtering altogether, as we shall discuss below.
This paper argues that the right to freedom of religion or belief
requires nation-states to respect the rights of religious minorities that
engage in ritual slaughter, even if they recognize the importance of
avoiding unnecessary suffering4 of animals. Following a review of the
legal status of animals in rights discourse generally, we will show why
the prohibition of ritual slaughter needlessly results in discrimination
against religious minorities, and why it is important that nation-states
attempting to reduce animal suffering more clearly specify realistic
alternatives for avoiding such suffering that are compatible with current
religious mandates about animal slaughter. We will also consider
whether the alternative of importing kosher or halal meat in place of
ritual slaughtering, proposed by some nation-states as a method of
alleviating the harm to religious minorities, is an effective and fair
alternative.
I. THE CONCERN ABOUT ANIMALS
Since the usual claim raised by animal rights advocates against
ritual slaughtering is that it is cruel to animals, it is worthwhile to begin
our discussion with a brief examination of the historical development of
the concepts of cruelty and animal welfare, including the major religious
traditions’ views5 that influence the Western approach to the status of
animals. We want to distinguish the question of slaughtering per se
from the legitimate concerns that have been raised about the
development of farm factories and related slaughtering practices. We
will show that, while the Western traditions have traditionally viewed
human beings as having dominion over creation, that view has been
accompanied by a consistent demand for ethical treatment of animals, a
view which does support claims against many farm factory practices and
has also informed religious slaughtering practices as described in the
next section.
A. Historical Philosophical and Religious Views about the Ethical
Treatment of Animals
Concerns about animal welfare are certainly not new, nor unique to
the Western tradition. In ancient Greece, we find some advocates of
vegetarianism, 6 although Greek philosophy, and perhaps its most
prominent representative Aristotle, did not devote too much
philosophical attention to questions of the ethical treatment of animals.7
The same might be said of Roman philosophy, which rarely considered
what human communities owe animals.8
Jewish attitudes toward animals are based on Biblical texts. The
Scripture says that the Almighty bestowed on human beings the right to
control animals, according to Genesis, where it is written that human
beings shall “have dominion over the fish of the sea and over the fowl in
the air and over every living thing that creepeth upon the earth.” 9
According to Jewish tradition, however, at the time of creation, man was
only permitted to eat fruit. In the Biblical test, God said:
Behold, I have given you every herb yielding seed which is upon
the face of all the earth, and every tree in which is the fruit of a
tree yielding seed—to you it shall be for food; and to every beast
of the earth . . . .10
Rashi explains the phrase: “to you it shall be for food; and to every beast
of the earth” to mean that the Scriptures regarded man and beasts as
equals who were both to subsist on herbs and vegetables and that God
did not permit Adam and his wife to kill any creature to eat its meat.11
However, by the time of the children of Noah, the text shows that God
permitted human beings to eat meat: “Every moving thing that liveth
shall be food for you, as the green herb have I given you all things.”12 In
Rashi’s exegesis, God’s permission to mankind to eat meat was given
only after the Deluge; he explained that this text is God’s announcement
that everything . . . “shall be food for you—I did not permit Adam to eat
meat but only herbs and vegetables, but as for you (i.e., Noah) . . . I let
you have everything.”13
Even though the Jewish Scriptures regard animals from an
anthropocentric viewpoint,14 that does not prevent Judaism from being
compassionate toward them. Jewish precepts drawn from the Biblical
text explicitly forbid cruelty to animals. 15 For example, Exodus
prescribes that animals must not be put to work on the Sabbath. 16
Similarly, Leviticus dictates that “whether it be a cow or ewe, ye shall
not kill it and its young both in one day.”17 Maimonides explains this
text as honoring animal mothers’ relationship with their young:
It is also prohibited to kill an animal with its young on the same
day (Leviticus 22:28), in order that people should be restrained and
prevented from killing the two together in such a manner that the
young is slain in the sight of the mother; for the pain of the
animals under such circumstances is very great. There is no
difference in this case between the pain of man and the pain of
other living beings, since the love and tenderness of the mother for
her young ones is not produced by reasoning, but by imagination,
and this faculty exists not only in man but in most living beings.18
We can see further recognition of human responsibility to avoid needless
suffering to animals. Biblical laws like “Thou shalt not plow with an ox
and ass together”19 and “If a bird’s nest chance before thee in the way, in
a tree or on the ground, with young ones or eggs, and the dam is sitting
on the young ones or upon the eggs, thou shalt not take the dam with the
young”20 are clear examples of Judaism’s attitude toward the humane
treatment of animals.21
Islam also stresses the importance of kindness to animals. Though
it is similarly anthropocentric in its attitude, Islam also advocates the
protection of animals and restrains man from being cruel to them. There
are numerous passages in the Qur’an urging Muslims to take an interest
in the welfare of nature and particularly animals, implying that all
created life is important to Allah.22 By contrast, at least early Christian
attitudes toward the fate of animals are not so clear.23 It is true that we
find notable exceptions such as Francis of Assisi (1181-1226), who
showed a strong empathy toward animals. Yet, while generally there are
few, if any, references to animal rights in early Christian doctrines, the
texts show that many Christian writers also objected to the abuse of
animals.24 For example, Thomas of Aquinas (1225-74) writes that he
does not doubt the right of man to exploit animals for his own use, but
states that he opposes cruelty toward animals in order to prevent man
from becoming brutal to his fellows.25 Perhaps because the three most
important religions in the Western tradition adopted this anthropocentric
concept, it has become part of the general tradition in Western
philosophy. And, while the Renaissance and humanism brought a new
vision to our understanding of man, this change fell short of influencing
the philosophical status of animals in any major Western philosophical
traditions through the eighteenth century.
B. The Modern Debate about Humane Treatment of Animals
By the nineteenth century, however, political activists were
changing national attitudes toward the status of animals. Animal
activists spoke out for the prevention of unnecessary suffering of
animals and demanded punishment for their abuse. Legislation was also
passed to protect animals in some Western nations. In England, for
example, starting in 1800 there were several attempts to pass legislation
protecting animals (e.g., forbidding dog-fights and bear-baiting).
Finally, in 1822, the “Horse and Cattle Bill,” the first piece of legislation
specifically intended to prevent cruelty to animals, was introduced.26
Gradually, most Western-influenced countries passed laws protecting
animals in various ways, outlawing cruelty and abuse toward animals,27
regulating scientific experiments 28 and hunting, 29 preventing
abandonment of animals30 and protecting endangered species.31 The
necessity of protecting animals is not seriously questioned in any
modern Western nation-state today, even while its scope still remains
unclear and the legal profile of animals is being defined even in
legislation that does not protect their rights.32
Despite this consensus about the need to ensure a degree of animal
welfare there is unfortunately no consensus about the proper scope of
protection. Those more radical in their defense of animals
(“abolitionists”) debate “legal welfarists,” who strive for the protection
of animals but realize that it is not realistic to avoid at least some use of
animals in the daily lives of human beings. Legal welfarists argue that
the struggle for animal protection should focus on regulating human
activities utilizing animals to diminish the number of animals involved
and the magnitude of their suffering. Abolitionists respond that legal
welfarism falls short of affording acceptable solutions, particularly on
the context of “farm factories,” which are important in the slaughtering
industry.
C. Setting Aside the Question of Farm Factory Practices
It is important to distinguish the debate about ritual slaughtering
from the question of modern farm factory practices, which do raise
legitimate concerns about the humane treatment of animals. The
problems created by industrial animal husbandry are diverse and include
issues about the humane feeding and transportation of animals as well as
the ways in which animals are killed. All farm animals are bred to be
killed for food (or similar human uses) and unlike other domesticated
animals, their owners’ emotional involvement or sentiments play no role
in their fate.
In previous generations, the attention paid to farm animals did not
stem from any concern for their welfare but from practical concerns
such as ensuring sanitary conditions for public health, 33 economic
standards for producing meat and other products, proper business
practices, consumer protection, etc.34 The gradual move from traditional
farming to industrial husbandry has aggravated the suffering of animals
because economic expectations have resulted in crowded environments
and poor living conditions for these animals. It is from these
developments that the struggle against abuses was largely born.35 In this
context, it is almost superfluous to cite Singer’s best known book,
Animal Liberation,36 a clear manifesto against industrial husbandry. In
pointing out the ethical problems in the raising of animals for food in a
modern industrial farm setting,37 Singer notes his clear opposition to any
animal breeding, concluding that only vegetarianism can provide a
solution for the inhumane treatment of animals.
An important phase in the development of Western law on the
treatment of agricultural animals, which is relevant to farm factory
abuses, is marked by The Brambell Report (U.K. 1965), which
recommended certain principles to serve as a basis for European
legislation.38 Ever since this report came out, the concept known as
animal welfare has gained more public acceptance. Those who debate
these issues are generally agreed that it is not enough to prevent singular
instances of abuse but that the aim of public legislation should be to
establish decent conditions for all farm animals.39
In Europe the practice of raising farm animals has in recent times
been regulated by the European Convention for the Protection of
Animals Kept for Farming Purposes.40 Though the Convention was not
adopted by the European Community, but rather by the European
Council, its regulations were adopted by the Community in Directive
78/923. 41 Despite the dissatisfaction of animal welfare lobbies that
believe that little has been done for farm animals, this directive
demonstrates that Europe has taken a positive step toward meeting the
demands for better conditions.
On the other hand, U.S. law is more limited in protecting farm
animals. Farm animals are not protected by the Animal Welfare Act42
and there is no unified national policy on animal welfare due to, among
other things, the opposition of the agricultural lobbies in the U.S.43
We have to approach the problem of kosher slaughtering with some
care in light of these discussions about industrial husbandry because
while the “suffering”44 imposed by slaughtering is the same as when
slaughtering 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 or
transportation46 of animals. Despite the firm commitment to animal
welfare of countries such as Switzerland, which bans ritual slaughter,
and the importance of limiting animal abuse in industrial settings, the
discourse on ritual slaughtering needs to be clearly distinguished from
the debates about the farm factory because of the very different interests
it entails. In order to underscore that the basic principles of humane
treatment in the raising and slaughtering of animals are shared by those
engaged in religious slaughtering and legal welfarists, it is important to
understand 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 animals
vary in their understanding of what is entailed in ritual slaughtering.
After describing these rituals in Judaism and Islam, we will catalogue
the various statutory approaches that European states, as well as the U.S.
have taken toward regulation of ritual slaughtering, and discuss in some
depth a recent Italian Commission report on this question which
demonstrates more understanding and sensitivity to the conflicting rights
involved than most national legislative debate about the question.
A. Jewish and Muslim Law Regarding Slaughtering
We define religious or ritual slaughter as a procedure carried out
according to rules originating from ancient religious laws. 47 The
religious nature of slaughtering48 relates primarily to Jewish and Muslim
slaughter, and as was indicated earlier, kosher and halal slaughtering are
done without stunning. The relevant precept originates from Scriptures:
If the place which the Lord thy God shall choose to put His name
there be too far from thee, then thou shalt kill of thy herd and of
thy flock, which the Lord hath given thee, as I have commanded
thee, and thou shalt eat within thy gates, after all the desire of thy
soul.49
As a matter of fact, Scriptures do not give details of the technique of
slaughtering—rather, they are expounded by Oral Law.50
According to the Halakhah, the killing of an animal for purposes of
eating its meat must be performed by an expert 51 who severs the
animal’s gullet and wind-pipe with one slash, after making sure that the
knife is sharpened according to halakhic specifications.52 Maimonides
regards these specifications of slaughtering as proof that the law calls for
a painless and easy death for the animal.53
[F]or as it has become necessary to eat the flesh of animals, it was
intended by the above regulations to ensure an easy death and to
effect it by suitable means; whilst decapitation requires a sword or
a similar instrument, the shechita can be performed with any
instrument; and in order to ensure an easy death our Sages insisted
that the knife should be well sharpened. [. . .] Since, therefore, the
desire 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 a
clumsy manner, by pole-axing, or by cutting off a limb whilst the
animal is alive.54
of slaughter among the positive commandments:
[T]he 146th precept is that we were commanded to slaughter cattle game or fowl before
partaking from their meat, which is not permitted except by the proper method of
slaughter. 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 is
identical to that of the sacrificial procedures. This teaches us that the gullet and windpipe
must be severed for animals and at least one of them for fowl. The details of this
precept 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 not
universally practiced, they show a clear animal-welfare oriented
approach in Jewish thinking regarding slaughtering.
For Muslims,55 there are four sources of Muslim law concerning
halal (permissible meat): the Qur’an, the hadith, 56 the sunnah57 and
fiqh.58 Islamic rules for slaughtering resemble the Jewish approach in
many respects, while differing in others. Apart from the obvious
differences in the prescribed prayers (the Hebrew benediction and the
Arabic ‘bismillah Allahua akbar), there is no requirement that the
Muslim slaughterer should be a trained expert. According to some
opinions, Muslim law is not as strict with regard to the prohibition of
prior stunning as Jewish law. While according to Jewish law stunning
may impair the perfection of the animal and not allow the consumer to
discern whether it is trepha,59 there are those who claim that the position
adopted by Muslim law is a bit different. For example, it is possible to
find fatwa accepting stunning since it is enough that the animal remains
alive. 60 The fatwa of the Mufti of Dheli in 1935 stated that it is
permissible in ritual slaughtering to stun the animal as long as the animal
does not die during the process.61 A similar view was exposed by the
Rector of the Al-Azhar University of Cairo in 1982.62 Furthermore,
certain authorities maintain that Muslim law permits partaking of nonhalal
meat when halal meat is not available.63 But these opinions are, to
a certain extent, controversial and there are those who rely on these
decisions as applicable only to Muslims living in countries where there
is no freedom of religion for them.64
Either way, any framework for the protection of religious beliefs
and practices should not be sought in the “correct” interpretation of the
religious text, especially where there is controversy. Theological
arguments trying to adopt a narrow or broad interpretation afford no real
solution to this problem; the concern of this article is rather to explain
why a ban on this practice may be seen by Muslims or Jews as being at
odds with their faith.65
B. Modern National Laws Concerning Ritual Slaughtering
Generally speaking, contemporary nation-states regulate ritual
slaughtering using three distinct approaches:
1. Some countries permit slaughter under regulations which
include stunning, but also to enable religious communities, i.e., Jews and
Muslims, to slaughter according to their religious specifications. This
approach of adapting the law to the special needs of minority groups is
quite commonly adopted as the most suitable way to keep the balance
between religious freedom and protecting animals,66 as seen in Western
countries such as France, 67 Italy, 68 Spain, 69 England, 70 Scotland, 71
Germany,72 Netherlands,73 Finland74 and Denmark.75 This policy was
adopted as the European standard in the Convention for the Protection of
Animals for Slaughter in 197976 and the Directive 93/119 of 1993—
Protection of Animals at the Time of Slaughter or Killing, 77 which
defines stunning as the proper method of killing animals with the
exception of religious slaughter.78 In the U.S., the Humane Methods of
Slaughtering Act, 79 made stunning compulsory 80 but recognized
religious slaughtering as “humane.”81 In fact, U.S. law uses the method
of kosher slaughtering as a model for religious slaughter, and other
religions using a similar method are permitted to engage in ritual
slaughter.82
However, it should be noted that legislative permission to engage
in ritual slaughtering does not mean that religious slaughtering officials
are free of official supervision.83 For example, in England, religious
slaughtering must take place in licensed premises under veterinary
supervision84 and in the presence of a stunner for emergencies.85 Danish
law has similar requirements.86
Second, religious slaughter is not the only exception to the standard
slaughtering regulations. Italy, for example, permits slaughterers to
forego stunning where the slaughtering is done for the family (and not in
commercial slaughterhouse), and also when fowl are slaughtered,
enshrining a distinction between large animals such as cows and small
fowl.87
2. Many countries outside Europe, some of which have tribal
customs, take a broader view of ritual slaughter. For example, while
Filipino law deals with the protection of animals, it permits animal
sacrifice for religious ends completely unconnected with consumption.
The law permits the killing of animals “as part of the religious ritual of
an established religion or sect or a ritual required by tribal or ethnic
custom of indigenous cultural communities.” 88 In America, several
states 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 carried
out according to regulations (stunning or electric shock and so on).
Currently, Switzerland and Sweden, which both lay great stress on the
welfare of farm animals, along with Norway, Liechtenstein and Iceland,
prohibit ritual slaughtering.90 These national laws are influenced by
nineteenth century objections to ritual slaughter, presumably directed
toward Jewish slaughter, on the basis that such slaugther caused
unreasonable pain to animals. As early as 1855, the British RSPCA
tried to bring about the prohibition of Jewish slaughtering because it was
not “humane,” 91 although there was hardly any evidence that ritual
slaughtering was more cruel than other methods. In Switzerland, it has
been forbidden by law since 1893 following a referendum. 92 Even
today, in Switzerland there are voices that want to strengthen the
prohibition by forbidding imported kosher meat, while others in
countries where the prohibition is in force are urging acceptance of ritual
slaughtering.93 In Sweden, the prohibition dates from 1937, and in 1988
it became an integral part of the law for the protection of animals.94 In
Norway, the prohibition dates from 1929.95 From time to time, other
proposals have surfaced to restrict or limit the ritual slaughtering in
other countries,96 but it is unclear whether these countries will join those
that completely prohibit ritual slaughtering, especially given European
calls for a new debate on the need to restrict or prohibit kosher
slaughtering to prevent animal cruelty.97 Given these new calls for
action, which extend even outside of Europe, a discussion of the opinion
of an Italian commission called to consider the question is worth
pondering at some length.
C. The Italian Report on Ritual Slaughtering
On September 19, 2003 the Italian Comitato Nazionale per la
Bioetica (National Commission on Bioethics) published a document
entitled Macellazioni Rituali e Sofferenza (Ritual Slaughter and
Suffering), a report which is especially worth considering since it
reflects current trends in European discussion of this topic. 98 Italy
permits ritual slaughter, and perhaps for this reason, the approach of the
Comission is more tolerant toward religious slaughtering than the
opinion of the Swiss Institute of Comparative Law, which tries to find
justifications for the prohibition.99
The Italian Commission points out that it has already considered
the issue of animal rights in the past, and that it recognizes the
superiority of man which, to a certain extent, justifies the subordinate
position of animals to humans. In the words of the report, however, this
position implies “responsibility [on the part of mankind] and does not
justify acts of cruelty to animals.” 100 In the light of these basic
assumptions, the Commission believes that the primacy of human beings
in the created order leads to the conclusion that Jewish and Muslim
slaughter is “an expression of the freedom of religion, a basic value of
human life.” In the Commission’s view, the principle of responsibility
requires human communities to try to minimize or completely abolish
animal suffering as far as it affects all forms of pole-axing or
slaughtering.
The Commission emphasizes that there is a dialectical difference
between “the respect for certain universal values and the proper
consideration for the uniqueness of each individual culture.”101 In the
Commission’s view, this consideration prevents a nation-state from
rejecting a custom which is deeply rooted in the culture and tradition of
a community simply because it is different from that of another religious
or secular sector of the population, even though that may be the
majority. If there is no specific justification for imposing an injury on a
minority religious group, each state should prefer the dignity of the
other, which can only contribute to social integration, “an integration
which is understood as respect for the religious and cultural traditions of
the community as long as they accord with the basic principles which
promote a harmonious social life.”102
The Commission briefly describes shechita, stressing the fact that it
must be carried out by an expert and that the animal must be in perfect
condition, i.e., not ritually unfit. It underscores that there is a reason for
the prohibition of stunning: neither Judaism nor Islam accepts stunning
before slaughter as legitimate, since it impairs the perfection of the
animal.103 The ethical aspect of these religious proscriptions is also
considered in the report, which explains that the aim of shechita as a
religious act is to remind mankind that it is not at liberty to make use of
animals arbitrarily and that their exploitation is restricted by Divine
ordinance. The report similarly notes the significant detail with which
the Halakhah specifies the quality of the knife to be used for ritual
slaughter, with the aim of minimizing the suffering of a living creature.
The express desire in Halakhic sources to make death as instantaneous
as possible is an additional factor that leads the Commission to
recommend protecting ritual slaughtering methods. In particular, the
report notes, the Christian world ought to stress that freedom of religion
is expressed not only by ritual but also in behaviors and actions that the
faithful believe to be obligatory. Shechita certainly takes its place
among such actions, as it is recognized by the decision of the
constitutional court of the Federal German Republic.104
The Italian Commission determines that shechita does not
adversely affect the basic principles of legislation attempting to protect
human treatment of animals so long as there is no proof that the
suffering caused to animals when ritual slaughter is used is no greater
than animal slaughtering methods permitted by law. Because, in the
Commission’s view, there are no currently reliable means to determine
which slaughtering methods result in what amounts of suffering by
animals, it is impossible for nation-states to make unequivocal
statements on these matters. While there is an assumption that stunning
before pole-axing or schechita causes less suffering than slaughter
without stunning, a minority of authorities reject that assumption.
Ethically, the Commission notes, all animal suffering, great or small, is
significant; but by taking a balanced view, governments considering this
issue can assign the proper importance to the freedom of religion and
permit kosher shechita under the appropriate supervision. This debate
does not, in the Commission’s view, implicate the concerns of
vegetarians since they are against all killing of animals; rather, the
important question is the nature of religious freedom as applied to the
question of animal slaughter.
While it is difficult to predict how Europeans will react to the
Italian Commissions’ report, it is a reasoned illustration of the fact that it
is difficult to adopt a clear-cut position against ritual slaughter unless
nation-states are prepared to put the protection of rights of animals on a
higher plane that the right of human beings to freedom of religion. In
the next section, we will attempt to illustrate the hazards involved in
balancing 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 slaughter
is that it clearly restricts the freedom of religion. From a broad
perspective, the permission of ritual slaughter does not apply only to
Jews or Muslims, and the problem is not limited only to practitioners of
ritual slaughtering. 105 Rather, this controversy implicates the basic
principles defining the boundaries of religious freedom within modern
society. We will show that ritual slaughtering is clearly religious
expression as understood in the international human rights documents,
and then briefly consider whether an exemption for religious
slaughtering would violate the basic principle in most secular nations
against the intermingling of church and state.
Even conceding the importance of ritual slaughtering of religious
expression, however, we must respond to the legal reality that religious
freedom rights are not absolute and can be qualified where there is a
strong enough state interest.106 The debate over the prohibition against
the use of religious symbols in French public schools, such as the hijab
for Muslim girls, only goes to show that the fundamental principles of a
particular society (in this case, the principle of laicité that shapes the
secular character of France) are able to outweigh the principles of
freedom of religion.107 We will argue that the prohibition of ritual
shechita, ostensibly to protect animals from unnecessary suffering
cannot be isolated from the issues raised when slaughtering rules restrict
the freedom of religion of a minority group.
In the next section, we will show why recognition of this right is
very important in a religiously pluralistic nation-state. This, in turn, will
lead us to consider the deeper philosophical question, debated even
among those engaging in ritual slaughter, about the nature of suffering in
slaughtering and the distinction between necessary and unnecessary
suffering that drives these debates.
A. Ritual Slaughtering as Religious Expression
Freedom of religion is accepted as a basic right in all European
constitutions108 and has been recognized in international conventions,
such as the International Convention on Human Rights (sec. 18) and the
International Covenant on Civil and Political Rights (1966) (sec. 27).109
The European Convention on Human Rights110 states in Section 9 (1):
Everyone has the right to freedom of thought, conscience and
religion; this right includes . . . freedom, either alone or in
community with others and in public or in private, to manifest his
religion or belief, in worship, teaching, practice and
observance . . . .
Clearly, the international conventions embrace more than the right
to belief, but also include the right “to manifest [one’s] religion or
belief.”111 Indeed, Section 9 (2) of the European Convention, makes
clear that:
Freedom to manifest one’s religion or beliefs should be subject
only to such limitations as are prescribed by law and are necessary
in a democratic society in the interests of public safety, for the
protection of public order, health or morals, or for the protection of
the rights and freedom of others.
Just as clearly, the practice of kosher schechita falls within the
compass of the right to manifest belief, and thus, if a nation-state is
going to abide by these covenants, it is not acceptable to prohibit kosher
shechita.112 To maintain, as some animal rights advocates have done,
that the prohibition does not impinge on the freedom of religion because
it does not restrict the consumption of meat but only its slaughter
misunderstands the complexity of the problem. The “religious issue”
involved is not in the eating of kosher meat,113 but the actual freedom to
perform shechita since shechita is not simply a way to provide permitted
food but a manifestation of a religious belief and a way of life.114
In making an argument that the right to ritual slaughter must carry
the most weight, one might try to pre-empt any argument by observing
that in most countries, animal rights are not recognized while freedom of
religion is. Hence, on a universal constitutional level, religious freedom
currently is preferred over the prevention of cruelty to animals.
However, there is a growing national trend, not yet very marked, to
recognize the constitutional protection of animals, with one recent
expression of that right in Germany. 115 Reliance on constitutional
arguments to justify ritual slaughtering may be considered too
formalistic, 116 and those who strongly advocate for the defense of
animals are not easily convinced by such positivist arguments. Thus, we
will consider whether arguments beyond these positivist arguments are
valid.
B. Does a Religious Slaughtering Exemption Threaten the Separation
of Church and State?
If we were to catalogue the arguments against permitting an
exemption for ritual slaughter, the most common argument against
religious exemptions—that neutral laws are necessary to ensure the
secular nature of the state—does not seem apposite in the case of ritual
slaughter. No current advocates of a ritual slaughter ban claim that
prohibition of ritual slaughter is necessary to preserve the secular
character of society or to ensure the separation of state from religion.
Indeed, there seems to be no correlation between secularism and
religious slaughter prohibitions: a number of countries that are
historically fiercely secular and separate religion from state (U.S. and
France, for example) are permissive with regard to ritual slaughtering,117
while other countries such as Sweden, where formal separation between
Church and State was accomplished only a few years ago, completely
prohibit ritual slaughtering.
However, if we were to consider the question of ritual slaughter
from a separationist perspective, the most logical conclusion we might
draw is that separation would entail non-interference by the state into
religious practices such as ritual slaughter. Moreover, when
secularization affects only minorities within the society, particularly
when those minorities have little chance of gaining political ascendancy,
we must recognize that the ritual slaughter ban does nothing by way of
separating church and state, but rather has the sole effect of restricting
the basic freedoms of the minorities. Because the acceptance of a fully
secularized society which allows no exception for religious difference
can easily lead to the negation of pluralism and become a means for
minority persecution, the question of why and to what extent the
restriction is justified must be explored.
Part of the problem in understanding the ritual slaughter ban is that
it rests upon unreflective majoritarian assumptions about the nature of
the act of providing food to the community by slaughtering animals.
Since shechita is in no way a religious issue for Christianity, the
dominant religion in Europe, many Christians may find it hard to
comprehend that the Jewish and Muslim view of shechita is
fundamentally different, that it plays such an important part of their
religious life.
C. Does Ritual Slaughtering Invade the Rights of Animals?
One way to approach the problem of ritual slaughtering is to
describe it as a conflict between two rights-holders, the religious
individuals and the animals that are being slaughtered. If we pay careful
attention to the language of the European Convention on rights, we
ought to ask who, then, are these “others,” whose rights and freedoms
should be protected, and whether animals are included among these
“others.”118 This requires us to answer a basic question—is it possible at
all to talk about “the rights of animals”? While it is not our intention to
adopt a position about the question whether animals can be considered
holders of rights at all, and a deep analysis of the philosophical issues
involved is beyond the scope of this paper, it is necessary to advance
some remarks on the topic, since it is not possible to see the guidelines
of this debate without them. Yet, as we will show, we do not think that
the determination that animals are rights-holders ultimately contributes
to the solution of the problem of ritual slaughtering.
The debate over whether animals may be rights-holders is nothing
new. We might begin with Descartes (1596-1650), who held the
absolute view that animals had no rights whatsoever, and compared
animals 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 but
reflexes.120 Descartes’ position has been repeatedly assailed and today
no one can seriously support it.121 A more balanced view, which takes
into consideration the need to have compassion for animals, is expressed
by Kant, who recognizes that human beings have obligations toward
animals, but no direct duties. In his view, animals have no selfawareness,
and they are not regarded as an end in themselves but as
means for the purposes of man.122
During the nineteenth century, Bentham took into consideration the
suffering of animals123 but did not consider them holders of any rights.
It is during the twentieth century that we see a more radical
philosophical trend that is not content with the protection of animals
(legal welfarism), but proposes to recognize a special rights-bearing
status for animals. We note the views of two leaders of the intellectual
movement supporting the cause of animal welfare, Peter Singer, who
argues that utilitarianism requires taking into consideration the interests
of animals, 124 for “otherwise we fall into speciesism,” 125 and Tom
Regan, the most prominent advocate of what we might call “the doctrine
of rights.” 126 According to Regan, both human and non-human
“subjects-of-a-life” have a basic moral right to respectful treatment, have
inherent value, and thus enjoy an equal moral status.127 Accordingly, in
his view, animals should be considered to have inherent rights. Still
other scholars advocate against any exploitation of animals,128 though
they derive their opposition to abuse of animals from different
theoretical groundings.129
On the other side, there are many philosophers who deny the
concept of animal rights arguing that in order to have rights, one must
belong to “the same moral community” as those who have the authority
and power to recognize rights, and only those belonging the same
community are entitled to rights. In this view, since animals do not
belong to the human moral community, they do not have rights.130 Still
others, particularly those who hold the “choice theory of rights,” believe
that in order to have rights, an entity must have the capability of
conscious choice between options for action and intentionally implement
this choice. For them, an animal cannot choose; therefore, it has no
rights.131
There are many potential inconsistencies in the arguments of those
who deny a special status to animals, as well as those who want to treat
them as equal to human beings in terms of rights. For example, those
who claim that one who has rights must be able to implement them
cannot fully account for the fact that many human beings (babies, the
mentally handicapped, etc.) cannot themselves make a legal appeal for
their rights and yet most societies would hold that they still have rights.
On the other hand, the recognition that some human beings not capable
of conscious choice or of advocating for their rights still have rights does
not require that a dog or a cat must always be treated under the law as a
baby or as the mentally handicapped. The granting of rights to animals
does not entail the conclusion that they have the same rights as
humans132 or suggest that their rights are more absolute than human
rights.133 To make a facile equation between the two is tantamount to
anthropomorphism134 an approach that surely should be avoided.135
Notwithstanding the difficulty in assessing the moral rights of
animals, and even assuming that they have no natural rights similar to
human beings, there are cases where the law seems to recognize that
animals have a certain sort of rights. In our view, however, this
recognition in positive law cannot contribute very much to finding a
clear framework for defining the status of animals. A positive law
approach creates even more theoretical difficulties because to say that an
animal has only those rights recognized by positive law leaves room to
question whether there are animal rights not yet recognized by law. This
approach leads to cumbersome discussions involving distinctions
between “natural rights” and “positive rights,”136 and will add nothing to
the effective protection of the animals. Such debates simply divert us
from finding the criteria we should use to determine whether certain
animals are owed certain treatment by humans. The protection of
animals should not become a debate about rights. As Dworkin
explained, to talk about having rights is like claiming to have trump
cards that enable rights advocates to control government or individual
action toward them.137
Even if we denied the recognition of animal rights, this does not
mean that human beings would have an unlimited privilege to harm
them or expose them to cruelty. Even if animals have no rights, that
does not entail that we deny our obligations to them.138 For example,
Peter Singer, a utilitarian, is reluctant to use the concept of “rights” to
justify the obligations to defend and protect animals.
Others have argued that the reason we protect animals is not
because they have rights, but because we are protecting feelings of those
humans who suffer from the suffering of animals,139 feelings which, of
course, are shared by Jews and Muslims. However, governments must
take the greatest care in moving from a focus on cruelty to animals to a
focus on protecting the emotions of humans who suffer with them, not
because it is improper to take into account the distress caused to humans
when animals suffer, but because this interest does not always constitute
a sufficient reason to impinge upon human freedom, particularly
religious freedom, and specifically the religious freedom of minorities
who have different views about the religious significance of animal
slaughtering practices.140
Even if there were a good case for comparing religious
considerations to the emotional response of animal advocates, those
advocates must produce very strong reasons indeed to explain why the
feelings of someone who suffers when animals suffer should be
juridically preferred over the right of someone to act according to his
religious beliefs. From the point of view of the secular state, it might be
possible to suggest that religious “feelings” are the same as cultural
sentiments or national traditions, such as bullfighting in Spain.141 Even
if it were possible to equate religious “feelings” to cultural or individual
“feelings,” however, in the ritual slaughtering case we are considering
the majority’s imposition of its religious beliefs and practices on a
minority, rather than, as in Spain, the animal protection minority’s
advocacy to combat the practice against a democratic majority’s
decision to preserve the tradition.142 It is that majority-minority rights
dynamic that is particularly problematical, as we will see.
IV. RITUAL SLAUGHTERING AND MULTICULTURALISM
In a multi-cultural democratic culture, it is very critical that the
religious faith of particular groups is regarded as a valuable expression
of particularism143 that should be respected by the majority. For one
thing, sensitivity to the value of religious particularism will require
religious majorities to come to understand what is involved in ritual
slaughter and to prevent the ritual alsughter problem from being framed
as a clash between the universal value of cruelty to animals and the
particularist views of Jews and Muslims.144 Jews and Muslims, who are
minorities in other societies, also share universal values about the
prevention of cruelty to animals and simply differ with animal rights
advocates about the definition of cruelty and the relationship between
religious obligation and duties owed to animals.
A. The Need for “Legal Accommodation”
Religious slaughtering implicates questions about the definition
and value of healthy pluralism in secular societies. In one view of
pluralistic societies, the so-called cosmopolitan alternative, 145 the
cultural make-up of a society is composed of different components.
National concepts of rights are components or expressions of such a
culture, so that the range of rights and their relevance to social life
depends on the cultural codes which define what is permitted and what
is forbidden.146
In most modern countries, these codes signal democratic leaders to
adopt a system of accommodations to permit the minority to carry out its
religious obligations, such as ritual slaughter, through what is termed the
“rule-and-exception approach.”147 This means that after the majority has
decided upon the appropriate regulation applicable generally to all
persons engaged in the practice (in this case, the requirement of stunning
the animal prior to slaughter), the law provides an exception which
permits the minority to deviate from the ideal practice in order to
recognize the minority’s interests, beliefs or cultural background as long
as the society’s fundamental principles and critical concerns, such as
public order, are not seriously affected. This rule-and-exception system
is part of what might be called the multicultural concept of social life.148
In this system, accommodation is practiced quite extensively, 149
especially in matters of religion.150
Of course, this does not resolve the problem of whether ritual
slaughter should be permitted as “an exception.” Just as one citizen in
such a culture is entitled to support pluralism, freedom of religion and
the need to preserve the primary ways of life that constitute the
minority’s identity, so another may maintain that the prevention of
suffering to animals is one of the prime values of society. Accordingly
there is no reason to permit injurious practices simply because they are
rooted 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 accommodation
stems from the fact that these traditional religious beliefs about the
proper method of slaughtering cannot be harmonized with the
preferences of the majority that require stunning. At this juncture, we
want to re-emphasize that the ritual we are discussing implicates a
minority right, and not just an eating preference. Although it may annoy
animal protectors and vegetarians alike, there is no escaping the fact that
human society exploits animals for many purposes, including food,151
and human utilization of animals for their purposes is accepted as
legitimate, at least in the eyes of the majority of the population152 that is
not vegetarian. However, let us assume that somewhere the “Vegetarian
Party” wins the elections and as part of a change in the legal regime
favoring animals vegetarianism is defined as an obligatory lifestyle for
all citizens and the slaughter of animals is absolutely forbidden. No one
can deny that this step is good for animals—they would then live in a
society where they do not encounter suffering from slaughter and a
culture that does not kill.153 Yet, while part of the population, those who
are vegetarians and those who are willing to become vegetarian, will
accept this directive, the non-vegetarian minority that lost the elections
will find it unreasonable and unjustified.
To make an analogy to the current situation in countries which
permit animal slaughtering but only using stunning, Jews or Muslims
could say that this prohibition puts upon them a burden like the burden
placed upon meat-eaters in a vegetarian society. They will argue, like
the meat-eaters, that this is a burden that they should not have to bear for
the sake of protection of animals. Concededly, the dilemma about
animal suffering can exist even for the observant Jew who may find that
indeed, ritual slaughtering causes too much suffering to the animal.154
Certainly a Muslim or Jew who must observe the religious
commandments and feels that shechitah causes too much suffering then
has no choice but to become vegetarian.155 However, this choice should
be made freely—indeed, a Jew might argue that this choice is required
to be made freely to be religiously significant—just as no other person in
the society is coerced into vegetarianism.156 In this sense, while eating
meat is not an obligation157 not being forced to be a vegetarian may be
still understood as a right.158 Thus, we do not accept the claim made by
authors such as Barry, that eating kosher is tantamount to choosing meat
of an expensive quality and that it can be foregone by an observant Jew
or Muslim in favor of “lesser quality meat” or that the prohibition does
not hamper freedom of religion but only the ability to eat meat.159
As this analogy suggests, unfortunately, sometimes it seems that
those who oppose ritual slaughtering use their scruples about the
suffering of animals as an excuse not to enter into a dialogue with
religious minorities about the limits of tolerance in liberal and
democratic societies.160 Similarly, we would reject the claim that the
state prohibiting ritual slaughter is only being neutral in that it is
prohibiting every practice that causes suffering to animals, regardless of
whether the motivation is religious, under accepted standards of the
prevention of cruelty to animals. According to the neutrality principle,
in their view, religious slaughter should be forbidden just like cockfighting
and similar “sports.”161 However, not only does the factual
analogy between religious slaughter and cock-fighting seem to us to be
extreme—and there is good reason to distinguish between Jewish and
Muslim slaughter and sporting rites that kill animals—but the neutrality
principle violates the basic values of multiculturalism that we are
advocating.
Of course, we concede that multiculturalism does not grant a
license for any and all behaviors of religious minorities, and any
particular society is not obliged to accept all the values of other cultures
that contribute to its population. Nor should every religious or mystic
belief be a justification for cruelty to animals. 162 We realize that
multiculturalism debates can quickly deteriorate to cultural relativism,
and we do not mean to suggest the fact that a particular practice is rooted
in religious belief justifies any injury to animals. We do not think that
ritual slaughtering should be justified by an argument from moral
relativism, and do not call for moral anarchy in this particular matter.163
The accommodation of Jews and Muslims may open the gates to all
sorts of considerations regarding traditions and usage. Just as, for
example, the prohibition of whaling is waived for certain aboriginal
peoples in order to conserve their tradition with appropriate limits,164 so
we concede the propriety of limits on ritual slaughter, including the need
to improve animal welfare.
Though we respect those who turn to vegetarianism to avoid
animal suffering, it is important to separate the concern from animal
suffering from other concerns at issue in this case which are unrelated to
the struggle for animal welfare. As we have suggested, given that the
countries we review have not adopted mandatory vegetarianism as the
national standard, the sweeping prohibition of religious slaughter is
problematic both because of its results and also because it is based upon
an unjust distinction based on religion which also is not rational from the
aspect of cruelty to animals. Indeed, we think that the way that the
debate about ritual slaughtering is conducted may lead to a distortion of
the discussion about animal suffering. As we will discuss, the
prohibition on religious slaughter actually adversely affects the principle
of the prevention of cruelty to animals, or more accurately, runs counter
to 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 slaughter
can act as a subterfuge for attempts to harm religious minorities, using
the “banner” of preventing cruelty to animals to justify religious
discrimination. The use of this issue to justify religious discrimination
can create a backlash against the struggle for animal welfare or animal
rights by those who are suspicious that it is being used as a pretext to
cover discriminatory intentions by the majority. As long as the
definition of suffering involved by slaughtering is based on different
considerations than those used in other cases, there is the potential risk
of raising increasing suspicions about the laudable goals of those
struggling for animal welfare (or animal rights). Second, as we will
discuss in Section V, the complete ban on religious slaughter does not
distinguish between religious practices which are actually inhumane and
shechita, 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 a
realistic abolitionist position since the majority of the public accept the
necessity of killing animals for food. But there is clearly a need to adopt
a regulatory policy, so that slaughterhouses will provide more acceptable
conditions for animals, notwithstanding that, or precisely because, they
are going to be killed. The question is what values and orientations a
regulatory framework should have, and what interests it should prefer.
Animal protection regulations are bound to impinge on the interests of
some sectors of the population, particularly those who will bear the
economic effects of regulation. For example, regulations that specify
how meat must be kept for sale in shops impose expense on shopowners,
which they might consider an illegitimate restriction of their ownership
rights and their freedom of occupation. Similarly, a prohibition against
force-feeding geese that occurs to produce pate of a certain kind and
quality hurts farmers who make a living from the practice.165 But these
restrictions are different from the religious slaughter prohibition,
because they apply to all shopkeepers and all farmers regardless of their
religion or nationality, while the prohibition against religious slaughter
applies only to certain groups with particular religious identities.
Using the ruse that one is attempting to protect an important
value—the prevention of cruelty to animals—in order to attack a
minority is not such a difficult thing to do and even if lawmakers are
well-intentioned, the prohibition of ritual slaughtering will still fall
under a certain degree of suspicion as reflective of anti-Jewish or anti
Muslim sentiment, so we should be cautious before accepting arguments
at face value or conceding them too quickly.
1. Persecuting Minorities and Antisemitism
Any regulatory framework that prohibits ritual slaughtering is
likely to be infected with elements of religious discrimination166 since it
is easy for those who would use the cloak of animal protection for other
ends, such as attacking those whose religious beliefs differ from their
own. One can see such examples in other contexts, such as when a
tenant’s keeping pets is used as an excuse for evicting him because the
landlord does not like him,167 or when a local population objects to a
dam that interferes with the status quo in their community using the
excuse that they are protecting fish that are in danger of extinction.168
Certainly today, instances can be found where those opposing
kosher shechita have a clear anti-Semitic (or anti-Islamic) ideology.
Though this may not be generally true, some opponents of kosher
slaughter tend toward an ideology historically tainted with anti-
Semitism. As we have pointed out before, the decrees against Jewish
ritual slaughter began to be common in the mid-nineteenth century, and
there are those who argue that behind the prohibition in Switzerland169
and Sweden,170 it is possible to discover anti-Semitic motivations.
While there is room to discuss whether anti-Semitic or anti-Muslim
sentiment is behind the growing movement to prohibit ritual slaughter in
Europe, we prefer to avoid this particular discussion and assume that the
prohibition in Switzerland and Sweden were adopted for reasons
unrelated to anti-Seminitism. Indeed, it would be equally problematical
to go to the other extreme and suggest that every attempt to prevent
religious slaughter is an expression of racism or xenophobia. The one
case where it is difficult to deny the anti-semitic motivation of the
prohibition against ritual slaughter is in the case of the Nazis. The direct
connection between anti-shechita legislation and antisemitism was
clearly expressed in the late Dr. Zerach Warhaftig’s article The
Historical and Legal Battle over Jewish Shechita.171 In Germany, a kind
of “scientific antisemitism” evolved which formed the theoretical basis
for the “final solution.” The pretexts and special pleading against
shechita found in the Nazi state have their roots in hatred for Jews and
the Torah and (in Russia particularly) economic jealousy. The concern
for the prevention of cruelty to animals was very selective and did not
apply to killing animals outside the slaughterhouse, for example, to poleaxing
pigs and to hunting. But it did apply to slaughtering fowl, where
there is no issue of suffering.172
The tragic situation which ensued from the use of the ritual
slaughter prohibition to separate and punish Jews found expression in
the works of many rabbinical authorities at that time. It is well-known
that observant Jews simply went without meat that came from a stunned
animal during the Nazi period.173 Though we cannot explore the full
Halakhic argument, we might cite the words of Rabbi Uziel that
underscore how this demand was used to offend and injure Jews:
It is perfectly clear that the phrase “prevention of cruelty to
animals” is nothing but a pretext to attack the Jews wherever they
live, to make them change their religion or to cause them to
wander from country to country in their Diaspora. If they were
really concerned about preventing cruelty to animals, they would
not constantly insult the whole people of Israel with curses and
mockery, shed their blood and embitter their lives and try to kill
them. There should never be worse cruelty to human beings than
there is to animals at the moment of shechita.174
Similarly, the first volume of the Responsa “Seridei Esh” of Rabbi
J. Weinberg is devoted to the discussion of the Rabbinical authorities on
stunning and their decision to veto it. Rabbi Jehiel Jacob Weinberg175
was one of those people who felt the immense responsibility of being a
rabbinical legal authority during the tragic time of Nazism. His wisdom
and sensitivity led him to reject compromise, but he was very conscious
of his obligation to the sick and to simple Jews who could not always
withstand the terrible trials of the time:
They are simply looking for an excuse to add another insult to the
Torah and another way to oppress our people. The Sages of
blessed memory have unanimously commanded (BT Sanhedrin
74) us that at a time of anti-Jewish decrees by the regime, even
concerning the smallest matter, a Jew should rather give his life
than transgress the Torah. It is superfluous to state that a Jew must
not eat meat (that is not kosher) (Shulhan Arukh YD/157) and he
must do everything in his power not to give in to these evil decrees
and in this way “sanctify the name of God.” The opposite
behavior is considered blasphemy as the Rabbis say, “he who acts
according to the enemy’s laws is like one who raises his hand
against the Torah of Israel.” (Shulhan Arukh HM/26)176
Rabbi Weinberg continues to describe his own personal arduous
struggle with the problem:
I knew from the outset that none of the great men of Lithuania and
Poland and the other outstanding personalities, the leaders of
Orthodox Judaism would ever agree to permit any change in the
time-honored form of shechita, adhered to in Israel for generation
upon generation. As for me, my heart told me not to approach this
serious matter, the very foundation of Jewish life. Many times I
told the righteous teacher, Rabbi Ezra Munk, the Rabbi of the
Adas Yisro’el congregation of Berlin who was also the head of the
shechita board of Germany that we had no right to look for ways
to permit changes in the ancient form.177 The very assertion that
shechita causes suffering to animals is a painful attack on the
honor of the holy Torah, which was the very first to caution
against cruelty to animals. In the end the hatred and cruelty of
these people will become clear to all. They wish to starve Jews to
death with their false, pretended compassion for animals.178
Due to demographic changes in Europe, the debate that once
exclusively affected Jews is now affecting Muslims as well. Muslim
circles are maintaining that behind the attempt to forbid Muslim
religious slaughter lie tainted motives with an intention to offend
Muslims. 179 We must be concerned about the possibility that such
prohibitions were framed in order to drive people from their new
homelands in Europe.
The United States has faced this very question in Church of Lukumi
Babalu Aye, where a religious majority used the pretext of compassion
for animals in order to attack a minority religious group that they wished
to drive from their community. 180 Notwithstanding the different
circumstances, including the particulars of the relationship between
religion and state in the U.S., the decision helps us to understand the
problem in a wider context. A sect called Santeria, whose faith
originated in Africa, came to Cuba with slaves imported for American
markets. 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 group
of members of Santeria settled in Hialeah, South Florida. Their
religious way of life, and perhaps some of the members, offended the
local populace. 182 The municipality passed an ordinance selectively
forbidding ritual killings of animals in the manner of the Lukumi Babalu
Aye Church, while permitting kosher slaughter, the slaughter of animals
for food by mainstream licensed facilities, and other animal killings.183
The Lukumi Church claimed that the real aim of the ordinance was to
prevent them from living in Hialeah in violation of their right to Free
Exercise of Religion, and convinced the the Supreme Court that, indeed,
they were being discriminated against because of dislike of their
religion.184 Even though, arguably, the practice of animal sacrifice was
problematical, since the municipality did not exhibit concern for the
humane treatment of animals being slaughtered in other contexts, the
Court accepted that the purpose of the ordinance was to drive the sect
from the city. One wonders whether the Court would have reached a
different decision had the city really evidenced its true concern for
animals.
Even carving out an exception for kosher and halal slaughtering
involves questions of the limits of slaughtering regulations. We might
note that the U.S. Supreme Court compared the Santeria rituals with
kosher shechita, and next ask whether it follows that protection of
kosher shechita and halal must necessarily imply the carving out of an
exception for the animal sacrifice practices of other faiths.
2. Religious Slaughtering Exemptions and Discrimination Between
Minorities
When governments are attempting to devise slaughtering
exemptions, they need to consider two sorts of religious freedom
dilemmas. One of them which the Lukumi Babalu Aye case raises, as
suggested, is whether the state may permit the slaughtering practices of
some religious minorities and not others without engaging in
discrimination. The second is the situation in which members of a
religious minority are themselves in conflict over proper religious
practice, which we will consider in this section.
a. Minority vs. Minority Rights in a Religiously Pluralistic State
States that are considering exemptions for ritual slaughtering must
be serious about the need to ensure equality between minorities and not
deny one minority rights enjoyed by another minority. Some countries
like Germany, for example, accept Jewish slaughtering but are more
reluctant to exempt Halal.185 This distinction may, on its face be quite
understandable. First, the German public is particularly sensitive to the
need to ensure religious freedom to Jews as a consequence of the trauma
of the Holocaust.186 Second, Muslims in Germany clearly outnumber
Jews187 and therefore, the potential for animal suffering is more manifest
in the case of Halal slaughtering. At this juncture, as we will discuss
further, the Constitutional Court of Germany has not accepted these
distinctions as a basis on which to treat Muslim slaughtering different
from shechita.
However, the prohibition of religious slaughter is not confined to
Muslims or Jews but can also affect other religions not so well-known in
Europe 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 compared
with the Santeria ritual, in the end, the Supreme Court did not have to
determine whether the distinction between shechita and the Lukumi
ritual could be justified under neutral criteria because it invalidated the
ordinance based on the city’s intent to discriminate against followers of
the Church. Smaller religious groups might argue that the exemption
granted Jews and Muslims should be interpreted as discrimination
against cults or sects whose particular method of slaughtering animals is
an expression of their religious feelings, or as discrimination in favor of
“large” religions and against “small” ones.189 To be sure, one might
justify Jewish and Muslim slaughtering practices as centuries-old
traditions in European countries, rather than strange new customs
introduced by new immigrant groups, but this is no basis to justify
distinctions between religions, any more than the size of their
membership can be used to do so. Accordingly a small religious group,
even if it has recently arrived, should be entitled to its own ritual
slaughter as long as it abides by the same rules applied to Jews or
Muslims, i.e., that the slaughtering is done under supervision with the
same permit, and conforming to the same standards for the prevention of
cruelty to animals.
However, freedom of religion does not justify an attack on basic
values including the respect for animals. If we want to avoid cruelty to
animals, we need to distinguish between slaughtering for consumption
and all other kinds of “ritual” killing involving esoteric practices. The
acceptance of killing of animals for food is necessary, given that most
people do not accept vegetarianism as a way of life, but it is not
tantamount to accepting every type of animal killing based upon a
minority’s faith. The line between acceptable and unacceptable
slaughtering must be guided by the basic values of the society regulating
it, and it is not problematical for practices accepted as valid in one
society to be condemned in other societies if they violate fundamental
norms of that society.190
b. Minority within the Minority
A second problem in establishing ritual slaughter exemption, which
might be termed the “minority within a minority” problem, relates to the
fact that religious minorities might not be cohesive in terms of their
views about the methodology of religious slaughter or, indeed, who is
authoritative in establishing mandatory religious practices. In many
countries, minority religions are represented by a central body in their
relationships with government authorities. In France, for example, in
1995 the government recognized the Great Mosque of Paris as the only
body qualified to appoint Muslim slaughterers. This government
acknowledgement was opposed by those believers who did not accept
the Great Mosque’s status as sole authority for slaughtering.191
In France, the umbrella organization for slaughtering practice for
the orthodox Jewish community is the Association Consistoriale
Israelite de Paris (ACIP).192 However, some years ago, the orthodox
organization “Sha’arei Shalom” applied for permission to slaughter in
their own, slightly different way to ensure what they style “glatt kosher”
meat; but the government did not consent to recognize them, since the
government had already granted an exclusive license to the
Association.193 Sha’arei Shalom brought this case to the European Court
of Human Rights, where the French government argued that the
Association represented many more Jewish members than Sha’arei
Shalom, 194 and that Sha’arei Shalom’s reasons for asking for the
exemption were partially economic, because they wanted to undercut the
Association’s prices. In addition, the government maintained that it did
not interfere in the internal affairs of a religion and that the Orthodox
had other means at their disposal for obtaining glatt kosher meat.
The European Court of Human Rights reviewed the French
regulations in light of the European Convention on the Rights of Man
provisions on freedom of religion and the principles of traditional kosher
shechita relative to those of glatt shechita. The majority on the Court
concluded that the French were within their rights in refusing to
recognize the glatt shechita of the Sha`arei Shalom and in giving a
general permit to one agent for the Jewish community as a whole. The
Court confirmed that religious shechita was included in Section 9 of the
Convention, which affirms the right of practical expression of religious
belief, and concluded that the exclusion of stunning provided by French
Law adequately ensured the freedom of religion. At the same time, the
Court held that the Sha’arei Shalom orthodox community could only
claim injury if it could not obtain glatt kosher meat. In this case, glatt
kosher meat was readily available from Belgium195 or by means of an
agreement with the Association, the umbrella organization to which the
majority of French Jews belonged.
In our view the minority opinion in this case, however, better
expresses the principles that define freedom of religion and conscience.
This opinion held that withholding permission from Sha’arei Shalom to
engage in glatt shechita ran counter to the basic freedoms set down by
the European Convention. The minority judges, noting that it was
insufficient to say that orthodox Jews of Sa`arei Shalom could obtain
glatt kosher meat in other ways, held that the fact that the petitioners
were a minority within the minority community did not deny them the
right to be considered a religious body. The fact that the French
Government might prefer to deal with representative bodies was not the
issue, for Sha’arei Shalom did not challenge the status of the ACIP;
rather, the permission to pursue a certain religious activitiy, glatt
shechita, was at stake and its denial constituted discrimination. In the
minority’s view, permitting a second method of schechita could
certainly not interfere with public order.
We recognize that the way that the majority in this case chose to
grapple with the problem was probably guided by the same principles as
in other cases where the Court has preferred not to intervene in the
decisions of any specific country denying religious freedom claims.
Indeed, some maintain that the European Court of Human Rights is not
very enthusiastic about applying Section 9 of the Convention; and as a
result, the Court either avoids dealing with religious freedom petitions or
sides with national governments on religious freedom matters.196
Nevertheless, in this particular case, it seems that the Court leaned
toward an interpretation that was too restrictive by granting religious
rights only to the central stream of orthodox Judaism in France. There
simply does not seem to be any evidence that recognition of the rights of
other streams of Judaism to carry out their religious rituals according to
their own beliefs would harm the public order in France, as the Court
concluded, or that recognizing the rights of Sha’arie Shalom to engage
in glatt kosher slaughtering would cause more suffering to animals,
since there is no difference between ordinary kosher shechita and the
ultra-orthodox with respect to this issue. Even if this decision was
intended to square with other precedents of the European High Court by
leaving more “room to maneuver”197 to the individual countries with
regard to local conditions, as the minority report notes, this legitimate
concern cannot substitute for the proper defense of religious pluralism
which is at the foundation of a democratic society.
We might compare the French decision to the more protective
religious freedom decision handed down by the Constitutional Court of
Germany on the religious slaughtering question.198 In this case, a Sunni
Muslim owned a butcher shop in the town of Hessen, and performed
halal under a permit for many years. In 1995, this permit was revoked
by the Federal Court of Administrative Affairs after it received an
authoritative opinion from the University of Cairo that a Muslim living
in a non-Muslim country is not obliged to eat halal meat.199
However, the University of Cairo opinion is not universally
accepted by Muslims, 200 and was not accepted by the butcher shop
owner, who argued that the prohibition of slaughtering not only
impinged on his freedom of religion (and that of his customers) but also
on his freedom of occupation. The Constitutional Court accepted his
plea, stating that religious slaughtering was “religious expression” and
therefore deserved protection in accordance with the principles of the
German Constitution, whether or not the petitioner was a German
citizen.201 The German judges stressed the difficulties that might arise
for the shopkeeper himself and for his customers who followed his
beliefs, irrespective of the fact that alternatives, such as imports,202 could
alleviate the religious conflict in this case. The Court also viewed it as
inappropriate for a secular court to consider and resolve differences
between the various streams of Islam (e.g., Sunnis and Shiites) with
regard to the importance, significance or scope of obligations attending
religious slaughter. For the Court, it was enough “that the claimant
belonged to a Muslim group which could be distinguished from other
Muslim groups with regard to its religious convictions” on
slaughtering.203 Interestingly, the Court vaguely implied that it would be
preferable not to make an unequivocal statement about whether stunning
did indeed cause less suffering to the animal than religious slaughtering.
There are some voices that argue that the judgment could lead to
viewing/slaughtering without stunning as the norm and not the
exception. 204 Although this may be a somewhat far reaching
interpretation of the judgment, it is not unreasonable to ask whether the
Court’s decision does not leave a loophole that would permit
slaughtering that causes suffering to animals, in derogation of legislative
intent. Since the German Constitution has been revised to establish the
responsibility of the State for animal protection,205 we can predict that
there will be further developments in this controversy in the coming
years.
There are significant enough differences between the French and
German constitutional circumstances that a clear conclusion about what
these cases might mean for religious slaughter is difficult to reach. For
example, the juridicial question, “What is a ‘religious community?’”
never arose in France as it did in Germany as a result of Section 137 of
the Weimar Constitution still in force under the Basic Law of 1949.206
Similarly, the French case deals with a petition to grant a permit in the
first instance to an additional religious body, while the German case
involved the cancellation of a permit that the owner and his customers
had relied on to fulfill their religious obligation. Moreover, the case of
Sha’arei Shalom involves a dispute entirely within the confines of the
Jewish community, and the French court’s opinion might charitably be
treated as an attempt to reconcile the halakhic differences between the
majority and the minority. In the case of the Hessian butcher, by
contrast, the German Court was protecting the rights of a minority group
against the authorities who were denying those rights.207 In both the
French and German judgments, the burden of the decision rests on the
issue of the freedom of religion (and the freedom of occupation, in the
German case), but these Courts interpreted that right and its priority as
against animal welfare differently. While the German Constitutional
Court did not ignore the special status of animals in German law,
including the special status that Section 90a of the Civil Codex accorded
them,208 in the end that Court preferred the freedom of religion and
conscience and the prevention of religious discrimination as the most
important important concerns of the state. In the final analysis, the
German Court’s approach seems more liberal and tolerant toward
minorities, and more respectful of religious liberty because it avoids
interpretations of religious precepts which are really the province of the
religious authorities and not the Government.
In summary, it seems clear that the prohibition of ritual slaughter
impinges upon the freedom of religion and protection of religious
slaughter is required to prevention religious discrimination, as both the
German and French courts imply in their opinions. However, both cases
seem to stand for the proposition that legal permission for religious
slaughtering is entailed in the concept of freedom of religion and of
prevention of religious discrimination, even though it might cause
slightly greater suffering to animals. Therefore from the point of view
of animal defenders, these decisions could be criticized not only because
of the priority that the courts have placed on religious freedom over the
suffering of animals, but because the fact of suffering does not play a
major role in these opinions.
We believe that it is important not to neglect the suffering of
animals but it is clear that the prohibition of ritual slaughtering impinges
upon the freedom of religion. The point is that traditionally the problem
of ritual slaughtering is analyzed in terms of freedom of religion and has
not considered the question of the suffering of the animal. In our view if
we analyze the question of suffering of the animal according to the
patterns which dominate the field of animal protection, the contradiction
between the two approaches is not as great as it may appear. It is to this
issue that we will next turn.
V. SOLICITUDE FOR THE SUFFERING OF ANIMALS
The argument for prohibition of shechita is based on the contention
that it causes unnecessary suffering to the animal. By contrast, other
methods of slaughter, most prominently the practice of stunning animals
before slaughter, are called “humane slaughter.” However, we will
show that arguments that kosher shechita, at least, is not “humane” are
misplaced.
A. “Humane” Slaughter
The phrase “humane slaughter,” which is common in the U.S.209
refers to methods of slaughtering involving minimal suffering to
animals. But the use of the word “humane” with regard to slaughtering
animals is problematical. Animal advocates would ask, can killing any
animal be called “humane”? 210 Surely, the very act is cruel,
“inhumane”!211 However, unless we believe in strict vegetarianism,212
there is no way of avoiding suffering to animals if we wish to eat meat.
Therefore, the question that political communities must face is what
methods of slaughtering are acceptably “humane,” given that we do
slaughter animals. We will attempt to describe shechita as “humane” by
drawing on scientific and ethical criteria,213 recognizing that science is
evolving 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 cruel
than other methods. Proponents of a ritual slaughter exception
sometimes argue that there is no scientific way of determining that other
methods, such as stunning or electric shock, cause less suffering to
animals than kosher shechita. Most religious authorities do not admit
that stunning is more humane than shechita.215 Many in Jewish circles
who have studied this problem argue that cutting the neck of the animal
causes less pain than stunning, with some adducing scientific evidence
for their views.216 As they note, with stunning, there is the danger of
preventing the flow of blood to the animal’s brain, or damage to the
muscles and problems of coagulation of blood.217
Rabbi Dr. R. di Segni has written:
Many contemporary writers have tried to attack shechita on the
grounds that it causes suffering and torture to animals and that
there are better ways to ease this. Starting from this statement they
end up by prohibiting Jewish shechita. In fact many scientists
have debated the issue and produced evidence in the defense of
shechita. The medical view and considerations of the prevention
of cruelty to animals, all points to the fact that shechita is the ideal
death.218
According to Dr. Zichron Chason:
Shechita is intended to extract the maximum amount of blood,
(blood=soul) while stunning may reduce the flow of blood from
the body. Various forms of stunning cause reduced blood
pressure, with the result that more blood remains in the body.
Cows have many traumas in their lives, and the level of pain
experienced during shechita is not greater than one of those
traumas. The cow does not feel any special pain. This may be
proved from the experience of the trauma units of hospitals which
admit patients with lesions of which they are unaware. We know
about the motorcyclist who did not feel that his legs were cut. The
same applies to animals. Conversely, electrical stunning causes
great suffering for the animal, since it involves a kind of
unfamiliar pain. In some methods, a minor error may cause
tremendous pain, so from this aspect too, shechita is preferable.219
Rabbi Shalom Yitzchak Ha-Levi has similarly made an extensive
argument against stunning as a “humane” practice:220
Re: stunning the animal before shechita:
On the face of it, it might be possible to allow stunning before
shechita if it were possible to be completely sure that the effect of
the application of electricity to the animal throughout did not run
counter to the Sages’ views regarding the fitness of the animal for
eating. The problems involved in stunning are complex and of the
utmost importance to all Jewish communities. They may be listed
under six headings:
1. the fear of “nefulah” (the case of an animal falling from a
height);
2. the fear of “mesukenet” (the case of an animal in mortal
danger);
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 clarified
and here I quote the words of a number of doctors I have
consulted.
Passing an electric current through the body of an animal may
cause:
a. Pain
b. Cramp in the muscles
c. Loss of consciousness lasting from a number of minutes to
hours, and when consciousness returns, it is accompanied by pain
and cramps as well as depression, mental disturbances and
neuroses
d. Loss of consciousness may also lead to death as a result of
shock or sudden arrest of the heart or of breathing
e. At the point of entry of the current, the body may be burnt,
there may be local hemorrhages in the brain, the spinal cord, the
lungs, the pericardium and the dura mater
f. The cells of the ganglia often show signs of degeneration.
Considerable congestion can arise in the internal organs as a result
of heart paralysis. The blood often appears thinner and more
liquid than normal as a result of haemolysis
g. The animal immediately loses consciousness and all feeling
h. The current may destroy brain cells or simply paralyze them
i. Because of the immediate loss of consciousness the animal may
fall heavily to the floor
j. There is always the possibility of cardiac or pulmonary arrest
Some doctors believe that changes in the weather and other outside
circumstances have an effect on stunning. [. . .] All the above are
included in my six headings above and require further elaboration
[. . . .] Therefore, in light of all that has been said and the changes
that take place in the animal’s body from an electric current and all
the uncertainties that arise, it is quite obvious that meat from a
stunned animal cannot be permitted for consumption and it falls
into the category of unfit carrion. May the Lord save us from
wrong decisions and reveal us the miracles of His Torah.221
In his book, Dr. Levinger similarly discusses in detail the scientific
problems associated with shechita in all its stages and the various
methods of stunning and comes to the conclusion that “in comparison
with other methods of slaughter, shechita is at least as humane as any
other.”222
Thus, virtually all Jewish authorities are firmly convinced that
stunning might even cause more suffering to the animal. However,
these are certainly not the only voices on the subject. Antagonists to
ritual slaughtering find support in the report prepared in 1985 by the
Farm Animal Welfare Council (FAWC) about religious slaughter. That
report states that there is insufficient scientific evidence to determine
just when the animal ceases to feel pain, but that the loss of
consciousness which occurs after the cut is not immediate. Accordingly,
the Council concludes:
[U]p-to-date scientific evidence available and our own
observations leave no doubt in our minds that religious methods of
slaughter, even when carried out under ideal conditions, must
result in a degree of pain, suffering and distress which does not
occur in the properly stunned animal.223
In FAWC’s 2003 report, the Council criticized ritual slaughtering,
denouncing it as unacceptable; and Recommendation 201 suggested that
the Government repeal the current exception. According to this report,
with ritual slaughtering, it may take up to two minutes for the animal to
bleed to death, which amounts to abuse and cruelty toward the animal.
The British Government accepted the claim that animals that receive an
effective pre-cut stun do not experience pain at the time of slaughter;
however, it rejected the Council’s recommendation to prohibit ritual
slaughter due to its commitment to respect the right of religious
groups.224
In our opinion, the discussion about pain to the animal is certainly
very important in adopting a position regarding the question of ritual
slaughtering. However, by itself, the evidence about the relative pain of
ritual slaughter vs. slaughter with stunning is insufficient to come to a
definite conclusion about which methods are sufficiently humane. As
long as it is not possible to determine with certainty that the amount of
suffering caused by one method is considerably greater than that caused
by another, and realizing that some permitted methods involve even
more suffering than ritual slaughtering, it is difficult to accept any
reason whatsoever why kosher shechita should be banned.
However, we need to recognize that the issues involved in
slaughtering are not only physiological, i.e., about measuring the amount
of pain experienced by the animals. They are also moral and ethical.225
To state that shechita is humane implies that it also meets certain moral
criteria, 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 obliged
to treat animals morally since they are by definition, the equivalent of a
“moral patient” upon which226 man, as a “moral agent,” acts. As a moral
agent, man has a moral responsibility toward those who have a different
moral status. 227 Jews and Muslims believe that they are properly
accepting moral responsibility toward animals when they engage in
ritual slaughter, and that it is thus not immoral. For a Jew, shechita must
be pure, clean and humane,228 and he must constantly be on the lookout
for the best way of preventing suffering to the animal. Jewish law
imposes strict demands regarding the professionalism of the slaughterer
not required in other cultures. The Jewish slaughterer must have
extensive training,229 and above all, he must have moral integrity and
must exhibit right conduct.230
No Jew or Muslim would see in kosher shechita or halal a wanton
act of cruelty, but rather, both would consider this act a manifestation of
religious ethics. It is in this spirit that Jews and Muslims could easily
maintain that kosher shechita or halal slaughtering ought to be
recognized as an acceptable method to be practiced by society as a
whole, but this is probably going too far. For most Europeans and
Americans, schechita or halal is simply a ritual identified with particular
religions and it would be difficult to conceive it as part of the European
or American cultural pattern. Still, religious slaughtering can be
justified as no less legitimate from a moral standpoint than the
majority’s preferred methods. The moral approach of Jews can be
discerned from the description of the late Rabbi Kook of his vision of
the future:231
The free inclination of morals concerning animals in general and
the demand for their rights from humankind is rooted spiritually
and naturally in the depths of the Torah. In the treasure house of
original man the seed of spiritual light (which later was to be
found in Israel) was scattered among unmarked individuals in the
national fabric. Even before the languages were confused, morals
demanded the rights of animals and “Adam was not permitted to
eat meat.” “Behold, I have given you every herb yielding seed,
which is upon the face of all the earth, and every tree, in which is
the fruit of a tree yielding seed—to you it shall be for food.”
Indeed there is a hidden rebuke within the folds of the Torah
regarding the eating of meat for it was only after “. . . you shall say
‛I will eat meat’ because your soul desires to eat meat . . . then you
shall sacrifice and eat” (Deut XII). [. . .] So the commandments
were given one after the other and eating meat was one of the steps
leading to the supreme end. The living creatures that are permitted
for food are restricted to the more suitable to man’s nature. The
blood of the slaughtered animal or fowl is covered so that the
iniquity done to them should be recognized and noticed.
Admitting the disgrace is the beginning of the moral healing
process “that you may remember and be ashamed” (Ezek 16:63).
Cover the blood! Hide your shame! These actions will yield their
fruit, in the course of time the generations will learn. Today’s
silent protest will become a loud and mighty call that will succeed.
The laws of sacrifice, in a particular order, easing the pain, all
these strengthen the impression that this is not anarchy, that you
are not dealing with an automaton that has no living spirit but with
a soul. This animal which serves man’s table—the Divine protest
cannot withstand man’s rights until the time comes.232
Rabbi Kook continues his didactic essay with references to other
commandments in the field of eating meat:
[M]ixing meat with milk is a serious transgression, an action
intimately mingled the oppression of life, soul and property rights;
milk which is so natural for the newborn infant to get pleasure
from 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 the
suckling has a natural precedence for the milk, it precedes you.
Just as covering the blood (after shechitah) associates “Thou shalt
not kill” to all life forms, and the prohibition of meat and milk and
mixed seeds is tied to “Thou shalt not steal” and “Thou shalt not
oppress,” so does the prohibition of eating the meat of a sick
animal is associated with the obligation to support and visit the
sick of all living things. At least have mercy on the forlorn if your
hard heart does not pity the healthy and the strong!233
Ultimately, of course, the very best situation would be to prevent
all suffering to animals. As Peter Singer puts it:
If a being suffers there can be no moral justification for refusing to
take that suffering into consideration. No matter what the nature
of the being, the principle of equality requires that its suffering be
counted equally with the like suffering—in so far as rough
comparisons can be made—of any other being.234
However, this view has its opponents in those who maintain that there
cannot be horizontal equality between animals and humans, and that any
moral approach should assume a vertical view regarding the relationship
between animals’ interests and human interests.235 Moreover, taking
preferences and needs of animals into account does not mean that they
must always be given exactly the same weight as the preferences and
needs of humans.236 It is interesting to note here that thinkers like Peter
Singer, who are active on behalf of animals, are not bothered by
accepting kosher shechita as such, but rather by their view that its result
is unnecessary suffering when it is carried out without previous stunning
or by other procedures thought to be cruel, such as holding the animal in
a hanging position as performed in U.S. slaughterhouses.237
As we move the question of slaughtering from the scientific to the
moral realm, we widen the field for discussion since, until not long ago,
kosher shechita was without doubt more humane and morally acceptable
than other “secular” methods of slaughter. Certainly, the prevention of
cruelty to animals is not a static concept but must evolve as scientific
research sets different parameters for animal suffering and for
alternative ways to prevent it.238
On the other hand, religious belief is fixed and immutable.239 The
Jews practiced humane and moral shechita at a time when other nations
gave little thought to such matters. 240 Obviously, from a religious
standpoint, the issue of stunning did not have to be grappled with until
the issue arose in the last century,241 as new techniques, rather than
changing moral standards, called for re-consideration of the issue by the
religious authorities who determine the Halakhah.
We would suggest that these new techniques should cause all
persons who are concerned about humane treatment of animals,
whatever their religious beliefs, to approach the problem from a new
angle. If we can agree that the chief issue which has created the
controversy is the common goal of avoiding unnecessary suffering, we
might ask, to what extent can the suffering caused by kosher shechita be
regarded as “unnecessary”?
B. “Unnecessary Suffering”
The distinction between necessary and unnecessary suffering of
animals is without doubt one of the thorniest points in the struggle for
the defense of animals, since the very distinction encompasses
acceptance of the fact that a certain measure of pain is inevitable when
we slaughter animals. The acceptance of this pain underscores the
instrumental character of animals in our culture, a reality which certainly
may jeopardize the protection of animals precisely because it is always
possible to argue that every human consideration, including economic
efficiency, justifies the suffering of animals. Defining the line between
necessary and unnecessary suffering is difficult, though it is perhaps
more difficult for most modern people to accept the fact that this
distinction rules out some human behavior toward animals as improper
and even immoral.
For example, the distinction between necessary and unnecessary
suffering 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 act
resulting in pain is, in the sense of the statute, necessary or
justifiable, as where a surgical operation is performed to save life,
or where the act is done to protect life or property, or to minister to
some of the necessities of man.242
This description of the distinction between necessary and unnecessary
suffering is certainly far from expressing an ideal situation or ethical
principle. Rather, it refers to the current reality in which man uses
animals for his own ends and determines the measure of acceptable
suffering only according to needs, preferences and values of humans.
This description is extremely problematic because it implies that under
certain circumstances, mankind is at liberty to cause suffering to animals
when it suits his purposes, whereas when an action affects human
beings, there can be no justification for causing suffering irrespective of
any benefit it might bring to another.243 We can see that in this view, the
only criteria for determining what is owed animals are utilitarian (not
taking animals into account as subjects whose pain is considered in the
utilitarian calculus)244 whereas with human beings, a more deontological
approach is demanded.
In this view, man’s relation to animals is based on what is
generally defined as a balance of convenience, that is, the interests of the
animal are a function of its use to man, who will justify animal suffering
when human interests are perceived to be more valuable.245 To be sure,
thinkers like Tom Regan and Peter Singer are up in arms against this
viewpoint, but it reflects the state of reality in animal husbandry today.
Even in countries such as Switzerland with their “extensive protection of
animals,” a certain amount of animal suffering is permitted.
The most notable expression of this preference for human interests
is to be found in the use of animals in experiments, where in striking the
moral “balance,”246 ethicists have concluded that there needs to be no
outright prohibition against the use of animals in experiments. Rather
experiments should concentrate on ethical procedures to ensure that
experiments are carried out with minimum suffering, with a commitment
to refining methods and seeking less painful alternatives wherever
possible.247 The reality of animal experimentation today is the practical
application of the theory known as R-R-R, i.e., “Reduce-Refine-
Replace.” 248 However, until now, ethicists have not been able to
establish criteria that would require the replacement of animals in
experiments. For example, they have been stumped by the question of
whether moral considerations for the suffering of animals should
outweigh economic ones if it turns out that the replacement of animals
with other experimental objects is too expensive to make the proposed
product marketable.
Of course, we should be cautious about comparing animal
experimentation with slaughter because they differ in purpose, means
and values; and Jews and Muslims cannot accept the idea that ritual
slaughter should be “replaced or refined” because of religious mandates.
At the same time, there is no reason why a similar kind of
balancing of moral alternatives might not be sought with regard to
religious slaughter. The very idea of unnecessary suffering is based to a
certain extent on the dialectics between ends and means. The
designations “unnecessary” or “exceptional” apply not only to the
animals but also to the purpose for which the animal suffers.
In order to decide what is permissible and what not, a distinction
must be made between an acceptable purpose and one which is
unacceptable, in which case the animal’s pain is unjustifiable. For
example, killing a fowl or a cow for food is acceptable (except for
vegetarians), whereas killing that occurs during an animal contest such
as cock-fighting is not because its sole purpose is the amusement of
human beings. Suffering that is imposed on animals in order to enhance
a public performance, such as in a movie, is not acceptable, while the
same amount of pain might be considered legitimate in the case of
animal experiments which are designed to prolong life.
Similarly, when the purpose is a proper one, care must be taken
that the methods used are also properly tailored. The theory behind the
prevention of cruelty to animals maintains that a specific practice can
legitimately be described as causing unnecessary pain as soon as another
method can be substituted without interfering with the legitimate
purpose of the practice or other legitimate, overriding interests.
Moving from these general principles to the particular case we
consider, how does religious slaughter fit in with the conflict between
freedom of religion and prevention of cruelty to animals in this model?
One whose premise is that religious slaughter causes more suffering than
other slaughtering methods still concedes that the basic purpose of
slaughtering, killing for human consumption, is legitimate (or at least is
accepted as legitimate by the majority). It is the means that he or she
claims are not acceptable because as long as it is possible to use a
different technique which seems to cause less pain, the suffering
involved is unjustifiable. However, this calculus ignores the fact that
ritual slaughter involves not just the purpose to feed human beings, but
the protection of freedom of religious expression for a particular group,
which is certainly a fitting principle. If we were to illustrate this
relationship as the two sides of this debate see it, it might look
something like this:
End Means
Need To Provide Food249 Slaughter
Freedom of religion→→→→→→→→religious slaughter allowed
Protection of animals→→→→→→→prohibition of ritual
slaughter because if causes
unnecessary suffering250
Those who wish to abolish religious slaughter examine the means
of 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 belief
of those who believe they are compelled by God to slaughter in a
specific way. Without taking into consideration this important value,
they are essentially equating the Jewish or Muslim slaughterer who is
doing his job according to the religious law in which he believes to one
who slits an animal’s throat for his own amusement. The prohibition of
shechita defines both acts as maltreatment by using different criteria
from those used to define cruelty to animals.
By contrast, our proposed approach tries to put the essence of the
problem within a wider framework of the ethical and religious
perceptions about the suffering of the animal. When animals are used
for human purposes in other cases, the moral decision-maker takes for
granted that certain amounts of suffering should be permitted. In such
cases, he bases his decision not on “animal” considerations but on
ethical-human ones. The determination a priori that a method run
counter to animal protection without consideration of all interests
involved marks a departure from the ethical criteria used to prohibit
unnecessary suffering in general.
Protection of freedom of religion and avoiding an attack on a
fellow citizen’s right to religious expression do not stand in opposition
to the suffering caused to the animal, but are part and parcel of the
process of deciding whether the suffering is excessive or not. The a
priori assertion that the right to religious practice is offset by the
prevention of pain caused by religious slaughter ignores the values of,
and benefits to all parties involved. While it may be difficult, at first, to
accept that the judgment that action cruel to animals must be governed
by different criteria in one case than in another, it seems to us that
animal protectionists should not jeopardize their goals by ignoring
religious obligations that are an essential part of determining whether
animal suffering is unnecessary or not. Conversely, Jews and Muslims
should be open to understanding the feelings of those who care about
animal suffering, and take their concerns seriously as they deal with all
animal life, including in ritual slaughter and the consumption of meat.
Ultimately, the final decision on permitted animal suffering must
include a serious consideration of values and religion within and not
outside the definition of “unnecessary suffering.” Otherwise, there is the
threat that when animal suffering is the subject of moral reflection,
society will adopt a utilitarian approach to all questions of animal
suffering except for religious slaughter, where only the inherent rights
of animals will be considered, resulting in moral inconsistency at the
expense of a minority religious group.
To recognize a current exception for traditional ritual slaughter
does not entail that the decision about acceptable slaughtering practices
has to be made for all time. All moral reflection must consider the
promise of technological advance; and on the future, it may be possible
to talk about some system that produces no pain at all in slaughtering, or
to discover a method of stunning that will be congruent with the
religious principles of Judaism or Islam. But at present, this is only a
theoretical possibility. When scientific advances offer a way of
unequivocally preventing animal suffering, Jewish and Muslim religious
leaders will have to sit down and discuss whether religious law can be
harmonized with science and adapted to the new knowledge.251 On the
other hand, while much remains to be done to improve the attitude and
efforts of mankind toward preventing animal suffering, so long as we
cannot ensure that animal welfare is better served by stunning there is no
point in making stunning compulsory.252
Finally, we might want to ask whether there are any “alternatives”
that may afford some sort of leeway to justify the prohibition of ritual
slaughtering in those nation-states where a majority feels strongly about
these practices, thus cushioning the possible diminishment of freedom of
religion. We will thus consider the alternative of importing kosher or
halal 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 Court
justified the prohibition of religious slaughter because of the availability
of imported kosher meat, reasoning that the French ban could not violate
religious freedom if adherents had an alternative to violating the ban.
Indeed, most countries that prohibit ritual slaughtering do go to the
trouble of regulating the permitted import of kosher meat;253 and in
Sweden, it is even subsidized. Certainly, to a certain extent, the import
of kosher meat “ameliorates” the prohibition, and is a less drastic
infringement on the freedom of religion than those who would go so far
as to advocate forbidding Jews and Muslims to eat even imported kosher
meat. 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 part
of the Jewish way of life, just as the Jewish community, like any other
religious community, must have its schools, synagogues and cemeteries.
Moreover, it is not clear how the importation solution would resolve any
justifiable concern with animal suffering, since animals still must be
slaughtered elsewhere to make kosher meat. Should it make any
difference whether the animal is slaughtered in Switzerland, Italy or
Israel? Is the suffering of a Swiss animal more important than one of
another country?
Of course, one might justify this distinction by noting that Sweden
and Switzerland have no right to interfere in the laws and policies of
other countries which permit kosher shechita. Animal rights advocates
may even distinguish imported meat because they believe their
community’s concern is with animals that are found within their borders
and they have no right to meddle in the affairs of foreign countries.
Similarly, if shechita does take place elsewhere, there is nothing wrong
with Jews or Muslims consuming such meat in countries that ban
schechita, 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 the
issue of supply and demand. A country permitting ritual slaughter will
clearly slaughter more cattle knowing that some of the meat is destined
for citizens of a foreign country, thereby causing suffering to more
animals.
Some might analogize this problem to laws forbidding forcefeeding
geese, which are meaningless if the sale and consumption of
patè de foie gras is not also prohibited, but we should be extremely
reluctant to compare force-feeding with kosher shechita since the
purpose for these actions and the amount of suffering are so different.
Force-feeding, which entails considerable maltreatment of geese, is
solely a commercial matter aimed at satisfying the discrete demands of a
particular public that wants to partake of a non-essential delicacy. The
ramifications of forbidding kosher shechita are far greater—if one were
to imagine that all the countries of the European Union were to agree on
forbidding the consumption of any meat slaughtered by shechita or
halal, the potential human rights violation with regard to Jews and
Muslims would be considerable.
In considering the acceptability of a kosher import alternative, we
must also consider the economic implications of this alternative, just as
the case of the ultra-orthodox Jewish community in France raised this
consideration. We would need to consider the effect of the significant
cost of importing kosher meat on the religious freedom of Jews and
Muslims.254 This cost would be borne by Jews and Muslims, whether
because they ate non-kosher meat in violation of their religious beliefs
because of cost, or because they were forced to pay higher prices to
conform to religious mandates. Either alternative represents an
infringement on religious freedom, albeit a somewhat lesser one than
where there is a complete ban on the import of kosher meat. In banning
schechita, Sweden has offered a more palatable alternative by
subsidizing the import of kosher or halal meat,255 so that the economic
burden of preventing cruelty to animals falls upon the whole population
instead of the minority which needs to be protected. Of course,
subsidies may have other paradoxical consequences. For example, they
may even encourage the consumption of meat and thus more animals
will be slaughtered abroad. Or, subsidies might lead to even more
religious discrimination, since the larger the religious minority
population, and thus the greater the general burden of subsidizing kosher
meat or halal, the more public opinion might oppose the entry of Jews or
Muslims.
Besides the question of religious freedom for meat consumers,
importing does not provide a satisfactory solution to the problem of
freedom of choosing an occupation since the prohibition of kosher
shechita does not allow anyone whose job is kosher slaughtering to earn
a living.256 In the case of the Muslim butcher shop in Hessen, the
German Constitutional Court considered this concern and decided that
the prohibition was not justified for just that reason, since the slaughterer
had no other business. This suggests that the freedom to choose one’s
occupation will trump animal rights arguments in most cases. Since
most suffering by animals in agriculture occurs in the context of the
slaughtering livelihood, the effect of a ritual slaughtering ban is to
eliminate a number of slaughterers, which produces a rise in prices and
possibly a lowering of profitability and customer base. In fact, in some
countries, such as Italy, ritual slaughter is permitted to enable Italian
farmers to export meat to Muslim countries.257
* * *
This article has focused on the issue of ritual slaughter in the light
of the legal situation in Europe. However, it is impossible to conclude
without wondering whether Israel, too, should not forbid kosher
shechita. Unlike countries which forbid kosher shechita but permit the
import of kosher meat, Israel, where kosher slaughter is obviously
permitted, forbids the import of non-kosher meat. This situation poses a
possible offense to animal supporters, who for ideological reasons
support stunning but cannot obtain access to meat produced by
stunning.258 It is possible to wonder whether Israel, too, should not
forbid kosher schechita!259 Clearly, this debate is inseparably linked
with the ongoing debate in Israel about the relationship between the
secular and religious sectors and the Jewish character of the state; and
any abolition of religious slaughtering would adversely affect not only
observant Jews but also the Muslim population.
We must concede that, just as a far-reaching prohibition on ritual
slaughter creates a conflict for observant Jews and Muslims in Europe,
where they are minorities, non-vegetarians in Israel who believe they
should not eat the meat of an animal killed by methods at odds with their
beliefs about animal protection pose a valid challenge to the state of
Israel. And, certainly, there are those in Israel who believe that kosher
slaughtering creates unnecessary suffering for animals and would like to
compel stunning. However, no operative proposals have been put forth
to create non-kosher alternatives for such people, and since kosher and
halal slaughtering will not be banned in a Jewish state, we do not foresee
such a likelihood. This is particularly true since there is not unanimity
on this issue as there was in the case of force-feeding geese for pate,
which was banned by the Israeli Supreme Court. Given that there
appears to be more cruel treatment of animals in Israeli agribusiness
than in slaughtering, this issue is also not likely to play a central role on
the agenda of animal welfare groups in Israel. However, it may in the
future assume much more importance if new methods that can
significantly diminish the suffering of slaughtered cows are discovered.
There is no doubt that if the issue came up for public debate or before a
court, the European experience would carry significant weight; and for
this reason, the Israeli public needs to be conversant with the situation in
other countries.
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