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. 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, 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 suffering 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.
2. We chose to focus on this problem as it surfaces in Europe, where Jews and Muslims (the most injured parties of this prohibition) are minorities. Obviously some parts of the present analysis are appropriate if and when the subject is raised, for instance, in Israel. We decided to prepare this paper in view of the renewed interest in the subject, as expressed by the decision of the Italian authorities who appointed a special commission to prepare a report on the topic. We deal with this report below.
3. As will be explained later, this is an equivocal issue. Many experts are of the opinion that there is no scientific evidence that ritual slaughter causes more suffering than other methods.
4. On the problems involved in the definition of animal suffering as unnecessary see infra Sec. V(B).
5. See e.g. Bazak, J., Vandalism and the Prohibition of Wasteful Destruction (Deut. 20:19), 1 Techumin 329, 336 (1980); Aviner, Ray S., Crop Dusting and Cruelty to Animals, 6 Techumin 432 (1985); Rosenfeld, S., Destroying Surplus Live-stock, 11 Techumin 258 (1989); Meisels, A., Scientific Experiments on Animals, 14 Techumin 366 (1994); Steinberg, A., Cruelty to Animals and the Halakhah, 1 Assia 263 (1989).
6. For example Pythagoras who, according to some accounts was opposed to animal sacrifices and was a vegetarian advocate, as was testified to by Plutarch. See Plutarch, , Plutarch's Moralia vol. 12, 541 (Chemiss, Harold & Helmbold, William L. trans., Harv. U. Press 1957); see also Serpell, James A., Attitudes Toward Animals: Pre-Christian Attitudes, in Encyclopedia of Animal Rights and Animal Welfare 76, 77 (Bekoff, Marc ed., Greenwood Press 1998).
7. See Singer, Peter, Animal Liberation 188 (2d ed., Pimlico 1995) [hereinafter Singer, Animal Liberation]; Levy, Zeev & Levy, Nadav, Etikah, regashot u-va ̀ale-hayim (Ethics, Emotions and Animals) 25 (Hotsaat ha-sefarim shel Universitat Hefah 2002).
8. It is worthwhile to point out that thinkers like Seneca (who was a strict vegetarian over his youth) and Plutarch showed due concern for animal welfare. See Plutarch, supra n. 6, at vol. 12, 541; Seneca, Lucius Annaeus, Ad Lucilium Epistulae Morales vol. 3, 243 (Gummere, Richard M. trans., William Heinemann 1953); see also Griffin, Miriam T., Imago Vitae Suae, in Seneca 1, 7 (Costa, C.D.N. ed., Rutland & Kegan Paul Ltd. 1974); D.A. Russell, Letters to Lucilius, in Seneca, supra at 79; Lana, Italo, Luido Anneo Seneca 72 (Loescher 1955).
9. Gen 1:28; see also Levy & Levy, supra n. 7, at 57.
10. Gen 1:29-30.
11. Rashi to Gen 1:29-30. Rashi's comment is based on BT (Babylonian Talmud) Sanhedrin 59b. Rashi (1040-1105) is an important Jewish commentator of the Bible and the Talmud. For an English translation of Rashi's commentary to the Pentateuch, see Rashi, , Pentateuch with Targum Onkelos, Haphtaroth and Prayers for Sabbath and Rashi's Commentary vol. 1, 7f (Rosenbaum, M. & Silbermann, A.M. trans., Shapiro, Vallentine & Co. 1946).
12. Gen 9:3.
13. Rashi to Gen 9:3, also based on BT Sanh. 59b. See Rashi, supra n. 11, at vol. 1, 37.
14. See Sermoneta, J.B., L'antropologia biblica nella Guida dei Perplessi di Moses Maimonides e il suo capovolgimento nel Trattato teologico-politico di Benedetto Spinoza, in Annali di Storia dell'esegesi' 7/1, at 80 ff. (1990) (regarding the duties of man to serve God).
15. See Many, S., Animaux, , Dictionnaire de la Bible Supplement 603 ff. (Paris 1928); Sierra, S.J., Il rapporto con il mondo animale e l'Ebraismo, in Gli Animali e la Bibbia: i Nostri Minori Fratelli 27 (Stefani, Piero ed., Garamond 1994); see also Eshkoli, Yitshak Nahman ben Avraham, Tsa ̀ar ̀ba ale hayim (The Prohibition Against Causing Pain to Animals) (Ophakim 2002). It must be noted that the Halakhah does not permit attendance at bull-rings and similar spectacles where animals fight each other. Josef, R. Obadia, Responsa Yechave Daath Pt. III, § 66 ff., p. 207 ff. (Jerusalem 1980). This Responsum is presented (in Hebrew) in the Bar Ilan University Responsa Project CD; see infra n. 176. See Levy & Levy, supra n. 7, at 33; Cohen, Noah J., Tsàar ba ̀alei hayim—The Prevention of Cruelty to Animals: its Basis, Development and Legislation in Hebrew Literature (Cath. U. Am. Press 1959). Also see Rakover, Nahum, The Multi-Language Bibliography of Jewish Law 536–537 (Lib. Jewish L. 1990) (for a bibliography).
16. Exod 20:10; see Deut 5:14 (regarding the ownership status of animals as comparable, in several aspects, to that of slaves); see e.g. Levy & Levy, supra n. 7, at 62.
17. Lev 22:28.
18. Maimonides, Moses, The Guide for the Perplexed 371 (Friedlander, M. trans., Dover Publications 1956) [hereinafter Maimonides, The Guide for the Perplexed].
19. Deut 22:10. Rashi explains: “It applies to any two different species, and it is also prohibited to tie them together to carry a burden (hitch them to a wagon).” See Rashi, supra n. 11, at vol. 5, 109 ff.
20. Deut 22:6; Maimonides, The Guide for the Perplexed, supra n. 18, at 370 (explaining this law); see also Schochet, Elijah Judah, Animal Life in Jewish Tradition: Attitudes and Relationships 148 (Ktav Pubig. House 1984).
21. We should also note the consideration for animals required at meal times. The Talmud says that one must not start a meal before feeding his animals. BT (Babylonian Talmud), Berakhoth 40a.
22. Bousquet, G.H., Les animaux et leur traitement selon le Judaisme, le Christianisme et l'Islam, 9 Studia Islamica 31 (1958); Masri, Al-Hafiz B.A., Animal Experimentation: The Muslim Viewpoint, in Animal Sacrifices: Religious Perspectives on the Use of Animals in Science 171, 184 (Regan, Tom ed., Temple U. Press 1986); Paul Waldau, Religion and Animals: Islam, in Encyclopedia of Animal Rights and Animal Welfare, supra n. 6, at 291.
23. See Ryder, Richard D., Animal Revolution: Changing Attitudes towards Speciesism 28 (2d ed., Berg 2000).
24. Hume, Charles Wesley, The Status of Animals in the Christian Religion (2d ed., Universities Fedn. Animal Welfare 1957); Andrew Linzey, Religion and Animals: Christianity, in Encyclopedia of Animal Rights and Animal Welfare, supra n. 6, at 286.
25. See e.g. Radford, Mike, Animal Welfare Law in Britain: Regulation and Responsibility 16 (Oxford U. Press 2001).
26. It was also known as Martin's Act. See Radford, supra n. 25, at 39; Brooman, Simon & Legge, Debbie, Law Relating to Animals 141 (Cavendish Publg. 1999).
27. See e.g. Cruelty to Animals Act (Animal Protection), 5754-1994, L.S.I., 1447, p. 56 (1994) (Isr.) (forbidding abuse or cruelty to animals); Protection of Animals Act, 1911, 1 & 2 Geo. 5, c. 27 (Eng.); Wild Mammals (Protection) Act, 1996, c. 3 (Eng.).
28. See e.g. Cruelty of Animals Act (Experiments), 5754-1994, L.S.I., 1479, p. 298 (1994) (Isr.). Cf. Animal Welfare Act, 7 U.S.C. §§ 2131-2159 (2000); Animal Protection Act, 1988, SFS 1988:534 (Swed.); Animal (Scientific Procedures) Act, 1986, c. 14 (Eng.).
29. See e.g. Curnutt, Jordan, Animals and the Law: A Sourcebook 290 (ABC-CLEO 2001).
30. Abandonment of Animals Act, 1960, 8 & 9 Eliz. 2, c. 43 (Eng.).
31. See e.g. Convention of International Trade in Endangered Species of Flora and Fauna (CITES) 1973; see also Palmer, Julian, Animal Law 49 (3d ed., Shaw & Sons 2001); Animal Welfare in Europe: European Legislation and Concerns 45–46 (Wilkins, David B. ed., Kluwer L. Intl. 1997).
32. For example, a number of laws in Israel relate to animals, without precisely dealing with the question of animal protection. Those laws include the Ordinance of Tort which includes damages caused by animals (Sec. 40) The Public Health Act (The Animal Disease Ordinance (New Version) 1985; Business Licensing Act (Sanitary Requirements for selling food) 1973; Rabies Act (1934).
33. See e.g. Approvazione del regolamento per vigilanza sanitaria della carni, regio decreto 20 dicembre 1928, n. 3298.
34. Ercoli, T., “La Macellazione,” in Per un Codice degli Animali: Commenti sulla Normativa Vigente 199, 200 (Mannucci, Anna & Tallachini, Mariachiara eds., Giuffrè 2001).
35. Cf. Regan, Tom, The Case for Animal Rights 355 (U. Cal. Press 1983) [hereinafter Regan, The Case for Animal Rights].
36. Singer, Animal Liberation, supra n. 7. Regarding the question of farm animals, see also Singer, Peter, Ethics Beyond Species and Beyond Instincts: A Response to Richard Posner, in Animal Rights: Current Debates and New Directions 78 (Sunstein, Cass R. & Nussbaum, Martha C. eds., Oxford U. Press 2004); David J. Wolfson & Mariann Sullivan, Foxes in the Hen House, in Animal Rights: Current Debates and New Directions, id. at 205, 212.
37. See Regan, The Case for Animal Rights, supra n. 35, at 97 (expressing a similar view).
38. See Council Directive 1999/74/EC, Laying Down Minimum Standards for the Protection of Laying Hens, 1999 O.J. (L. 203) 53 (EC) (concerning battery hens, defining the rules for appropriate living space for each hen, separation between rows, and appropriate flooring). Similarly, with regard to pigs, rules were set out about the requirements of illumination, ventilation, sanitary conditions and abuse of the animals. See Council Directive 1991/630/EEC, Laying Down Minimum Standards for the Protection of Pigs, O.J. (L. 340) 33 (EEC) (amended by Commission Directive 2001/93/EC, 2001 O.J. (L. 316) 36 (EC)).
39. Radford, supra n. 25, at 264 ff. The Farm Animal Welfare Council in Britain set out these principles in the form of “five freedoms” (on the model of the four freedoms of the Rome Convention 1957): the freedom from hunger and thirst; the freedom from discomfort; freedom from pain, injury and disease; freedom to express normal behavior; and the freedom from fear and distress.
40. Animal Welfare in Europe, supra n. 31, at 11.
41. Brooman & Legge, supra n. 26, at 190.
42. See HCJ 9232/91 “Noah” (Israeli Federation of Animal Protection Organizations) v. Atty. Gen., IsrSC 57(6)212 (08 11, 2003) (providing a comparative discourse); see also Animal Welfare in Europe, supra n. 31, at 3 ff.
43. Rowan, Andrew N.et al., Farm Animal Welfare: The Focus of Animal Protection in the USA in the 21st Century 46 (Tufts Ctr. Animals Pub. Policy 1999).
44. See Radford, supra n. 25, at 272 (explaining the distinction between animal pain and suffering).
45. We shall see below that, according to numerous learned opinions, kosher slaughtering does not cause more suffering than any other method. See infra Sec. V.
46. Sometimes it is questionable whether the transportation of poultry in harsh conditions does not render them unfit for kosher slaughter.
47. We chose to omit the discussion about the meaning of the term “religion.” See Schluchter, Wolfgang, The Future of Religion, in Culture and Society: Contemporary Debates 249, 249–250 (Alexander, Jeffrey C. & Seidman, Steven eds., Cambridge U. Press 1990).
48. See Waldau, Paul, Religion and Animals, in In Defense of Animals: The Second Wave 69, 77 (Singer, Peter ed., Blackwell Pubig. 2006).
49. Deut 12:21. Rashi explains “and thou shalt kill … as I have commanded thee“—”We learn from here that the mode of killing is prescribed; they are the laws of slaughtering as they were told to Moses on Sinai.” Rashi, supra n. 11, at vol. 5, 68. Maimonides indeed lists the laws 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 wind-pipe 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.
Maimonides, Moses, The Book of Precepts Positive Precept # 146 (Robert Young 1849). See Levinger, I.M., Meor le-Masekhet Hulin (Guide to Masechet Chulim), vol. 1, 1 (Yerushalayim 1994).
50. BT Chullin (passim); R. Josef Caro, Shulhan Arukh (passim); R. Josef Caro, Yore Deah (passim). Perhaps this is the reason that particularly in non-Jewish circles, it is argued that the Jewish law does not oppose stunning. This interpretation of Jewish law, which ignores the Talmud, is clearly mistaken.
52. See e.g. Sefer Hahinukh Precept 451.
And slaughtering has to be performed at the throat, with a knife that has been examined, in order to spare the animal from suffering, because Scripture permitted man to eat animals and use them for his needs, but not to impose upon them unnecessary suffering.
Cruelty to animals was extensively discussed by the Sages of the Talmud, who concluded that it was a Scriptural prohibition. BT Baba Metzia 32b; BT Sabbath 128.
53. Maimonides, The Guide for the Perplexed, supra n. 18, at 311; Schochet, supra n. 20, at 162.
54. Maimonides, The Guide for the Perplexed, supra n. 18, at 371; cf. Ramdan (Nachmanides), Commentary on the Torah: Deuteronomy Det. 12:21:
[A]s I have commanded thee—The Sages say that this teaches us that Moses had been told that slaughtering was to be performed by cutting the esophagus and the wind-pipe (or at least most of them) for cattle and one of them for fowl. Indeed, the word “Shechita” in Hebrew denotes the cutting of these two organs. Do not be misled by “He had slaughtered them in the wilderness” (Num 14:17). It is a mere figure of speech meaning that He had slain them like sheep. The commandments concerning the sacrifices use the terminology of “slaughter” i.e., cutting the organs at the throat. At first, He commanded them that all meat to be eaten should bear the quality of perfection of the sacrifices, and the animals killed according to the procedures of the sacrifices. This is the plain meaning of Scripture. It may well be that the Sages meant to say this (Sifre, Reeh 39)—as I commanded thee—both sacrificial and other animals must be killed by shechita.
For an English version of Nachaminides' work, see Nachamanides, , Commentary on the Torah: Deuteronomy 150 (Chavel, Rabbi C. trans., Shilo Publg. House 1976).
55. See Curnutt, supra n. 29, at 180.
56. That is, instructions by the prophet Mohammed.
57. That is, religious tradition.
58. That is, a Summary of Islamic learning.
59. See infra Sec. V(A)(2).
60. Cottier, B. & Aldeeb, S., Avis sur l'Étourdissement des animaux avant leur abattage, Institut Suisse de droit comparé 4 (Lausanne 2001). This is the method known as “reversible electric stunning,” from which the animal could potentially recover. According to Shimrit Golan, in Sweden this method is accepted by the majority of Muslims, although not by orthodox Jews. Golan, Shimrit, Current Challenges for Religious Freedom in Europe: The Case of Ritual Slaughter of Animals 22 (Working Paper 47/2005, Hebrew U. Jerusalem, 07 2005).
61. Shadid, W.A. & van Koningsveld, P.S., Legal Adjustment for Religious Minorities: The Case of Ritual Slaughtering, in Islam in Dutch Society: Current Developments and Future Prospects 2, 13 (Shadid, W.A.R. & van Koningsveld, P.S. eds., Kok Pharos Publg. H. 1992). It is nevertheless important to point out that if the animal's death is caused by the electrical shock before having been duly slaughtered, the meat is banned for consumption. Sometimes this part of the opinion has been omitted to show a liberal approach of Islam toward ritual slaughtering, an approach that runs counter to the view of all those who want to stick to the religion provisions. Id.
63. See Conforti, Patrizia, Religion et Loi: L̀Abattage Rituel sans etourdissment restera interdit en Suisse 1, 5, http://www.religioscope.com/info/notes/2002_029_abattage_ch.htm (last modified Mar. 18, 2002, accessed Dec. 31, 2006). See also text accompanying nn. 200 ff, infra, the decision of the German Constitutional Court about the Islamic community in Hessen.
65. See Conforti, supra n. 63, at 4 (quoting Urs Peter Müller: “[Il] importe peu de savoir si le Talmud ou le Coran interdisent ou non les méthods d̀abattage industrielles. Juifs et musulmans estiment que ces méthods sont incompatibles avec la practique de leur religion, et c̀est la seule chose dont la loi doit tenir compte.”).
66. See infra Sec. IV.
67. Decree No. 80/-791 of Oct. 1, 1980 § 9, J. Officiel de la République Française (J.O.) (Officiai Gazette of France) (Fra.).
68. Macellazioni Rituali e Sofferenza Animale 14, 16 (Comitato Nazionale per la Bioetica 2003) (available at http://www.governo.it/bioetica/testi/macellazione190903.pdf). A law of June 20, 1980 permits religious slaughter for Jews and Muslims. Another law from 1927 requires that animals should be killed by a swift and painless method: “usando apparecchi esplodenti a proiettüe captivo, oppure la recisione del midollo allungato (enervazione) ovvero altro sistema da riconocersi odoneo dall̀autoritá prefettizia, sentito il consiglio provinciale di sanitá.” Id. at 21.
69. The matter was settled by an agreement between the Spanish authorities and the Jewish and Muslim communities in 1992. Decreto Real 53 15-2-1995.
70. Welfare of Animals (Slaughter or Killing) Regulations, S.I. 1995/731 (U.K.).
71. Slaughtering of Animals (Scotland), 1928, 18 & 19 Geo. 5, c. 29 (Eng.).
72. Tierschutzgesetz (Law for the Protection of Animals) § 4a 2 (2), July 24, 1972, BGBl. 1 (Federal Law Gazette) at 1277 (Ger.). In the state of Saxony, Kosher slaughtering had been banned in 1892 but the law was rescinded in 1910. Cf. Munk, Michael L., Munk, Eli & Levinger, I.M., Schechita: Religious and Historical Research on the Jewish Method of Slaughter 17–26 (Inst. Adv. Jewish Scholarship 1976).
73. 1920 Livestock Act, §74.
74. Law about Animals 1971, § 11, Säädoskokoelma (SDK)/Förfatningssamling (FörfS) 333/1971. There is an exception on the island of Aland, where stunning is compulsory. See Macellazioni Rituali, supra n. 68, at 30.
75. See Garde, P., Die Religionsfreiheit in den Skandinavischen Landern, 47Zeitschrift fur Evangelisches Kirchenrecht 315, 330 (2002). Danish law requires stunning immediately following the incision. This method may serve as an alternative for the integration between the swift cessation of pain and religious freedom (because perhaps such stunning is not against the Halakhah) and it might well be adopted by other countries.
76. European Convention for the Protection of Animals for Slaughter § 17 (1), 1988 O.J. L. (137) 27 (authorizing contractual parties to derogate provisions as to prior stunning in case of slaughtering in accordance with religious rituals).
77. Council Directive 1993/119/EC, Protection of Animals at the Time of Slaughter or Killing, 1993 O.J. (L. 340) 21 (EC) (replacing Council Directive 1974/577/EEC, On the Stunning of Animals Before Slaughter, 1974 O.J. (L. 316) 10 (EEC)).
78. See Council Directive 1993/119/EEC § 5(2).
79. 7 U.S.C. § 1901 et. seq. (2000) (enacted as Humane Methods of Slaughter Act of 1958, 72 Stat. 862 (1958)). This law was passed much later than in most European states. See Curnutt, supra n. 29, at 169.
80. 7 U.S.C. § 1902(a) (requiring the stunning requirement only for livestock, not poultry). Some states e.g., California, have special legislation on this matter. Cf. Rowan et al., supra n. 43, at 59; Farm Sanctuary, Inc. v. Dept. of Food & Agrie, 63 Cal. App. 4th 495, 508 (Cal. App. 2d Dist. 1998).
81. 7 U.S.C. § 1902(b); see also Jones v. Butz, 374 F. Supp. 1284 (S.D.N.Y. 1974); infra Sec. V(A) (discussing the definition and usage of “humane”).
82. Perhaps the American approach to religious methods is due to the separation between religion and state, and a completely different view of farm animals.
83. Cf. Farm Sanctuary, Inc., 63 Cal App. 4th at 508.
84. In fact, the absence of licensing and supervision create the problems for groups without a permit. See infra Sec. IV(B).
85. See Radford, supra n. 25, at 339.
86. See Garde, supra n. 75, at 47; Comitato Nazionale per la Bioetica, Macellazioni Rituali e Sofferenza Animale. (Documento approvato nella Seduta Plenaria del 19 settembre 2003).
87. See Decreto legislativo 333/1998, 1 settembre 1998 n. 333: “Attuazione della direttiva 93/119/CE relativa alla protezione degli animali durante la macellazione o l'abbattimento,” pubblicato nella Gazzetta ufficiale n. 226 del 28 settembre 1998, http://testo.camera.it/parlam/leggi/deleghe/testi/98333dl.htm (accessed Feb. 2, 2007). In Denmark too, a distinction is made between cattle and poultry, the killing of which does not require licensed premises.
88. Animal Welfare Act, Pub. Act No. 8485, § 6(1) (Phil. 1998).
89. See Wolfson & Sullivan, supra n. 36, at 212.
90. Kastner, K.H., Das tierschutzrechtliche Verbot des Schechtens aus der Sicht des Bundesverfassungsgerichts, 57 JuristenZeitung 491, 492 (2002).
91. See Schochet, supra n. 20, at 283.
92. Rothschild, Dany, Das Schächverbot der Schweizerischen Bundesverfassung 59 (Buchdruckerei M. Lande 1955); Munk et al., supra n. 72, at 16.
93. See Conforti, supra n. 63, at 1.
94. Golan, Current Challenges, supra n. 60, at 20; Macellazioni rituali, supra n. 68, at 25.
95. See Macellazioni rituali, supra n. 68, at 11.
96. The European Parliament has repeatedly called for banning ritual slaughtering. See Golan, supra n. 60, at 58.
97. Carnell, Brian, UK Proposes Banning of Halal & Kosher Slaughter, http://www.animalrights.net/archives/year/2003/000246.htlm (06 29, 2003) (accessed Aug. 23, 2006).
98. The first part of the Rocella report (4-11) discusses the issue and sets out the conclusions. The Appendices (12-80) deal with various aspects of the problem and are mainly concerned with Judaism and Islam.
99. See Cottier & Aldeeb, supra n. 60. This opinion is based on the premise that slaughtering without stunning is not obligatory for Jews or Muslims. The opinion is given on the basis of a particular religious interpretations given by the authors of the opinion and not by religious authorities. This approach reminds us of periods of intolerance when religious interpretations given by the State replaced religious opinions. This was, for example, the way of the Emperor Justinianus (Codex 1.9.8; Novella 146). See Rabello, Alfredo Mordechai, Giustiniano, Ebrei e Samaritani v. 2, 814 ff. (Milano 1979).
100. Macellazioni rituali, supra n. 68, at 7.
102. Id. This question should be understood as part of the question of multiculturalism.
103. But see supra n. 61.
104. See nn. 200 ff & accompanying text.
105. Cf. Barry, Brian, Culture and Equality: An Egalitarian Critique of Multiculturism 303 (Harv. U. Press 2001) [hereinafter Barry, Culture and Equality].
106. See e.g. Barry, Culture and Equality, supra n. 105, at 44. For religious freedom and Article 9 of the European Convention on Human Rights, see Evans, Malcolm D., Religious liberty and International Law in Europe 281 (Cambridge U. Press 1997); Evans, Carolyn, Freedom of Religion Under the European Convention 67 (Oxford U. Press 2001); Cumper, Peter, The Public Manifestation of Religion or Belief: Challenges for a Multi-Faith Society in the Twenty-first Century, in Law and Religion: Current Legal Issues 2001 vol. 4, 311 (O'Dair, Richard & Lewis, Andrew eds., Oxford U. Press 2001); see also Kuhelj, Alenka, Religious Freedom in European Democracies, 20 Tulane European Civ. L. Forum 1, 2 (2005).
107. In our view secularism should not be tantamount to religious intolerance. True secularism should be accompanied by admission that people are free to practice their religion, ensuring the right to be different.
108. See e.g. Fed. Const, of the Swiss Confederation art. 8(2) (Switz. Apr. 18, 1999); Const. of the Italian Republic art. 8(1) (Ital. Dec. 22, 1947); Basic Law for the Federal Republic of Germany (Const.) art. 4(1) (Ger. Oct. 3, 1990); Const, of Spain art. 16(1) (Spain Dec. 29, 1978).
109. Blackstone's International Human Rights Documents 51 (Ghandi, P. ed. 1995).
110. Javier Martinez-Torrón, The European Court of Human Rights and Religion, in Law and Religion: Current Legal Issues 2001, supra n. 106, at 185.
111. See C. Evans, supra n. 106, at 103; see also Cha ̀are Shalom Ve Tsedek v. France (GC), no. 27417/95, §§ 59, 74, ECHR 2000-VII (available at http://cmiskp.echr.coe.int/tkp197/search.asp?skin=hudoc-en) (enter case name under Case Title on HUDOC search page).
112. Radford, supra n. 25, at 117. The Farm Animal Welfare Council in England, a protagonist for the rights of farm animals, proposed to ban religious slaughter because it is not performed by stunning but this proposition has not been accepted because the law “recognizes a fundamental matter of religious belief to communities that are an important part of national life.” Id. at 339; see infra Sec. V(A)(1).
113. Barry, Culture and Equality, supra n. 105, at 44; see infra Sec. VI (regarding the importing of kosher meat).
114. See Macellazioni rituali, supra n. 68, at 6.
115. See e.g. Basic Law for the Federal Republic of Germany (Const.) art. 20(A) (defining responsibility of the state to protect national resources and animals). It could be argued, though, that the law was intended in the ecological sense, and does not refer to animal abuse.
116. It is arguable that the exclusive consideration of religious freedom might lead to extreme situations, such as sacrificing animals by adherents of various cults. It might raise numerous questions by animal protectionists and be regarded as so-called “speciesism”—i.e., discrimination on the basis of belonging to different species, analogous to racism which discriminates between people of different races or nationalities. We do not examine this topic in this article.
117. Of course, it is possible to claim that precisely to support the secular character of the French state, it is necessary to prohibit ritual slaughtering. See Christophe Marie, Fondation Brigitte Bardot, Ritual Animal Slaughtering, http://www.fondationbrigittebardot.fr/site/fbb_a.php?IdPere=199&Id=199 (accessed Oct. 23, 2006). As we have pointed out, we should understand that secularism should leave room for religious tolerance. Supra Sec. III(A).
118. Cf. Garde, supra n. 75, at 329.
119. Descartes, René, Discours de la méthode: suivi de La dioptrique 124 (de Buzon, Frédéric ed., Gallimard 1991). Voltaire (1694-1778) answered very harshly to this claim: “Answer me, machinist, has nature arranged all the means of feeling in this animal, so it may not feel?” Voltaire, , A Reply to Descartes, in Animal Rights and Human Obligations 20, 21 (Regan, Tom & Singer, Peter eds., Prentice Hall 1989).
120. See e.g. Brooman & Legge, supra n. 26, at 8-9.
121. See Gary L. Francione, Animals: Property or Persons, in Animal Rights: Current Debates and New Directions, supra n. 36, at 108, 108-115.
122. Kant, Immanuel, Lectures on Ethics 239 (Infield, Louis trans., Harper & Row 1963); but see Regan, Tom, Defending Animal Rights 12 (U. Ill. Press 2001) [hereinafter Regan, Defending Animal Rights] (critizing Decartes' position); Regan, The Case for Animal Rights, supra n. 35, at 174. Kant recognizes that man has an indirect obligation not to be cruel to animals. His opinion is vulnerable to criticism on the basis that animals do not exist to fulfill the needs of man but exist by their own right. Levy & Levy, supra n. 7, at 42. The Kantian attitude dominates, to a certain extent, the debate on the status of animals. See generally infra Sec. V(B).
123. Bentham, Jeremy, An Introduction to the Principles of Morals and Legislation 310 (Oxford U. Press 1970). Bentham recognized that different species merit equal treatment. His opinion about animals is well known:
The day may come when the rest of the animal creations may acquire those rights which never could have been withheld from them by the hand of tyranny. The French have already discovered that the blackness of the skin is no reason why a human being should be abandoned without redress to the caprice of the tormentor. It may one day come to be recognized that the number of legs, the villosity of the skin or the termination of sacrum are reasons equally insufficient for abandoning a sensitive being to the same fate. [T]he question is not Can they reason? nor “Can they talk?” but, “Can they suffer?”
124. Singer, Animal Liberalion, supra n. 7, at 5 ff. See also Singer, Peter, Ethics into Action: Henry Spira and the Animal Rights Movement 45 ff. (Rowman & Littlefield 2000) [hereinafter Singer, Ethics into Action]. Singer is a supporter of utilitarianism, but on the basis of equality. Speaking in terms of utilitarianism may be too sweeping because utilitarianism includes various concepts and could be used in different contexts. See Brooman & Legge, supra n. 26, at 91-95 (discussing utilitarianism with regard to animals); Regan, Defending Animal Rights, supra n. 122, at 13 (criticizing utilitarianism in the context of animal rights); see e.g. Bentham, supra n. 123, at 310; Lyons, David, Utility and Rights, in Readings in the Philosophy of Law 243 (Coleman, Jules L. ed., Garland Publg. 1999); Quinton, Anthony, Utilitarian Ethics 1–10 (St. Martin's Press 1973); see also Dunayer, Joan, Speciesisim (Ryce Publg. 2004); Levy & Levy, supra n. 7, at 172.
125. That is considered discriminating between a human and non-human animals on the ground they belong to different species. Singer, Animal Liberation, supra n. 7, at 213; see also Cavalieri, Paola, The Animal Question: Why Nonhuman Animals Deserve Human Rights 69 (Woollard, Catherine trans., Oxford U. Press 2001).
126. See e.g. Regan, The Case for Animal Rights, supra n. 35. It is noteworthy to point out that Rabbi I.A. Kook explicitly refers to “the rights of animals,” e.g., in his Commentary, Talmudic. Ein Haia, Shabbat, vol. a, 109 (Jerusalem 1994).
127. Regan, The Case for Animal Rights, supra n. 35, at xvii, xxii. His ideas have been harshly criticized. See id. at preface; see also Wellman, Carl, The Proliferation of Rights: Moral Progress or Empty Rhetoric? 108 (Westview Press 1999).
128. See e.g. Francione, Gary L., Animals, Property, and the Law 12 (Temple U. Press 1995) [hereinafter Francione, Animals, Property, and the Law] (proposing that we should not relate to animals in terms of property).
129. But see Favre, David, Equitable Self-Ownership for Animals, 50 Duke L.J. 473, 476 (2000).
130. See e.g. Raz, Joseph, The Morality of Freedom 176 (Oxford U. Press 1988) [hereinafter Raz, The Morality of Freedom]. According to Raz, rights are based on the principle of reciprocity. Animals cannot have rights because they cannot claim rights. Furthermore, how can we maintain that animals have rights if they are the property of man and subject to his will (with certain limitations)? If so, is not man obliged to honor those belonging to different referential groups? And what are the boundaries of “the same moral community?” This does not mean that man's sentiments toward animals should not be taken into consideration. Incidentally Raz compares the feelings of man towards animals to his own sentiments towards objects d'art in his possession. Id. at 179; cf. White, Alan, Why Animals Cannot Have Rights, in Animal Rights and Human Obligations 119, 120–121 (Regan, Tom & Singer, Peter eds., 2d ed., Prentice Hall 1989).
131. Person A can only claim rights from B if A has the choice to demand a certain conduct from B and is in a position to enforce it. According to this criterion, animals cannot be regarded as having rights because they do not have the choice to implement their rights. Only humans can. This approach does not explain why people with handicaps, who cannot claim their rights are nevertheless regarded as having rights. Cf. Sumner, L.W., The Moral Foundation of Rights 46, 203–204 (Oxford U. Press 1989).
132. For example no one would argue that animals have a right to education or citizenship.
133. See Gewirth, Alan, Are there Absolute Rights?, in Theories of Rights 91 (Waldron, Jeremy ed., Oxford U. Press 1984).
134. Cf. Sohm-Bourgeois, A., La personification de l'animal: une tentation à repousser, Dalloz Chronique 33–37 (1990).
135. Some theorists try to avoid the problem of comparing humans to animals by using the word “interests” instead of “rights” to describe what animals should be legally entitled to, but this is purely a matter of semantics. See Feinberg, Joel, Harm to Others 58, 70 (Oxford U. Press 1984) (concerning animals “interests”).
136. See Margaret Mc Donald, Natural Rights, in Theories of Rights, supra n. 133, at 21; Raz, Joseph, The Authority of Law passim (Oxford U. Press 1979).
137. Where utilitarianism fails to provide for concern and respect for persons, rights become necessary. See e.g. Ronald Dworkin, Rights as Trumps, in Theories of Rights, supra n. 133, at 153; Dworkin, Ronald, Taking Rights Seriously xi (Harv. U. Press 1977) [hereinafter Dworkin, Taking Rights Seriously]; see also Francione, Animals, Property, and the Law, supra n. 128, at 103. The idea of rights as trumps has generated critics. See e.g. Dworkin, , Taking Rights Seriously, at 365 (providing a response to Prof. Joseph Raz); see also Waldron, Jeremy, Pildes on Dworkiǹs Theory of Rights, 29 J. Leg. Stud. 301, 303 (2000).
138. Raz, The Morality of Freedom, supra n. 130, at 177; see e.g. Harris, J.W., Legal Philosophies 83 (Butterworth & Co. 1997) (providing criticism about the difficulty of defining legal relationships in terms of obligations and rights); Hohfeld, Wesley Newcomb, Fundamental Legal Conceptions: As Applied in Judicial Reasoning and Other Legal Essays 11 ff. (Campbell, David & Thomas, Philip eds., Ashgate 2001) (concerning the rights-obligations relationship).
139. This argument is based on the view that the issue of cruelty to animals concerns the protection of human feelings, not the enforcement of an ethical norm. See Ben-Zeev, Avinoam, The Reason for the Prohibition on Abusing Crocodiles, 4 Mishpat Umimshal 763 (1998) (Hebrew) (arguing that the rationale for prohibiting animal abuse is emotional rather than ethical); Wolfson, Yossi, The Moral and Legal Status of Nonhuman Animals, 5 Mishpat Umimshal 551 (2000) (Hebrew) (commenting on Zeev's view).
140. See e.g. Barry, Culture and Equality, supra n. 105, at 131 (suggesting it is easier to accept the idea of tolerance than to come to terms with its interpretation).
141. The case of bull fighting is justified in countries like Spain on the ground that it is part of a national tradition, indeed sometimes understood as ritual practice. There is, of course, a distinction in that the discussion on ritual slaughtering is not as much about the practice, (slaughtering) as about the particular method. In the countries condoning bull fighting, the very practice is at stake.
142. We can point out the position of Rabbi Ovadia Yoseph who argues that this practice is prohibited according to Jewish law. See Eshkoli, supra n. 15, at 209.
143. Although protection is needed for religious sentiments, the freedom of religion or freedom from religion are universal values, as we shall see below.
144. See Macellazioni rituali, supra n. 68, at 4.
145. Kymlicka, Will, Politics in the Vernacular: Nationalism, Multiculturalism and Citizenship 210 (Oxford U. Press 2001).
146. See e.g. Merry, Sally Engle, Changing Rights, Changing Culture, in Culture and Rights: Anthropological Perspectives 31, 38 (Cowan, Jane K., Dembour, Marie-Benedicte & Wilson, Richard A. eds., Cambridge U. Press 2002).
147. Barry, Culture and Equality, supra n. 105, at 33.
148. See e.g. Parekh, Bhikhu, Rethinking Multiculturalism: Cultural Diversity and Political Theory 196, 264 ff. (2d ed., Palgrave Macmillan 2006) (concerning multiculturalism); Shachar, Ayelet, Two Critiques of Multiculturalism, 23 Cardozo L. Rev. 253 (2001); Tamir, Yael, Two Concepts of Multiculturalism, in Multiculturalism in a Democratic and Jewish State: The Ariel Rozen Zvi Memorial Book 79 (Mautner, Menachem, Sagi, Abraham & Shamir, Ronen eds., Universitat Tel Aviv 1998) (Hebrew).
149. For example, in certain countries, Sikhs riding motorcycles are exempted from wearing crash helmets because they wear turbans. Levy, Jacob T., The Multiculturalism of Fear 125–127 (Oxford U. Press 2000); see also Kymlicka, supra n. 145, at 163 (listing various adjustments); Boradiansky, Tina S., Author, Student, Conflicting Values: the Religious Killing of Federally Protected Wildlife, 30 Natural Resources J. 709, 727 (1990) (regarding the problems of accomodation in the conflict between defense of wildlife and Indian religious practices). We might also cite the permission for the church to produce wine during Prohibition in the U.S., permission for Jews to work on Sundays though it is a day of rest for non-Jews, etc. Cf. J. Levy, id. at 127.
150. See e.g. Jones, 374 F. Supp. 1284 (discussing accommodations of religious practices by granting exemption from statutory obligations).
151. Cohen, Carl & Regan, Tom, The Animal Rights Debate 3 (Rowman & Littlefield Publishers 2001).
152. According to Jewish tradition, this practice stems from the times of Noah—after the deluge. See supra nn. 1 & 12.
153. Of course, it can be argued that, without the need for meat, the great majority of animals raised today for food would not exist at all, because they wouldn't have been needed. From the point of view of species survival, it could be argued that domesticated animals are a biological success because they survived in greater numbers than wild species. Humans have a vested interest in cattle and poultry and promote their proliferation by methods which are not always acceptable. Whether bringing a living thing into the world also gives the right to put it to death is a complex issue outside the scope of this discussion.
154. See Jones, 374 F. Supp. 1284 (holding that there was no fault in the use of kosher meat permitted by U.S. law); see e.g. Frasch, Pamela D.et al., Animal Law 403 (Carolina Academic Press 2000) (explaining that, as in other cases, this decision was based on the principle of religious freedom, ignoring the aspect of cruelty to animals).
155. See e.g. Kook, A.I., Telalei Oroth, in Mamarè Harayah 26 ff. (Jerusalem 5744) (Hebrew) [hereinafter Kook, Telalei Oroth] (essay on vegetarianism). See text accompanying infra nn. 233-235 (discussing the opinion of Rabbi A.I. Kook).
156. See Kook, Abraham Isaac, Abraham Isaac Kook: The Lights of Penitence, the Moral Principles, Lights of Holiness, Essays, Letters, and Poems 316 (Bokser, Ben Zion trans., Paulist Press 1978).
157. Barry, Culture and Equality, supra n. 105, at 296.
158. For some observant Jews, eating meat should be understood as an obligation on Shabbat and Holidays.
159. See Barry, Culture and Equality, supra n. 105, at 35, 40.
160. Cf. Dworkin, Taking Rights Seriously, supra n. 137, at 205 (“The institution of rights is therefore crucial because it represents the majority promise to the minorities that their dignity and equality will be respected.”).
161. Barry, Culture and Equality, supra n. 105, at 41.
162. It is sufficient to mention certain cults performing unusual actions, including cruel torture of pets.
163. See Barry, Culture and Equality, supra n. 105, at 133.
164. The problem here is not the permission for whaling, but the cruel methods used by the aboriginals. See id. at 254.
165. HCJ 9232/91, Noah (Israeli Assn. to Protect Animals) v. Atty. Gen., at IsrSC 57(6)212 (2003) (banning the practice of force-feeding geese).
166. See e.g. European Convention on Human Rights art. 9(1), 14 (distinguishing between freedom of religion and freedom from discrimination). Indeed, there are cases in which the freedom of religion is impaired and it is not deemed discrimination, for example, if the prohibition of displaying religious expressions was applied to the entire population. See e.g. Political Constitution of the United States of Mexico art. 3(IV) (Mex. Feb. 5, 1917).
167. E.g. Nahrstedt v. Lakeside Condo. Assn., 878 P.2d. 1275, 1290 (Cal. 1994); Young v. Savinon, 492 A.2d. 385, 389 (N.J. Super. App. Div. 1985).
168. Tenn. Valley Auth. v. Hill, 437 U.S. 153, 158-159 (1978).
169. See Golan, supra n. 60, at 14 (arguing that the prohibition in Switzerland had anti-Semite roots). The prohibition began with the emigration of Jews to Switzerland from Czarist Russia. See also Krauthammer, Pascal, Das Schächtverbot in der Schweiz, 1854-2000: die Schächfrage zwischen Tierschutz, Politik und Fremdenfeindlichkeit 253 (Schulthess 2000).
170. This is the opinion expressed in the report of the Swiss Institute of Comparative Law. See Cottier & Aldeeb, supra n. 60, at 11.
171. Dr.Warhaftig, Zerach, The Historical and Legal Battle over Jewish Shechita, 52 Sinai 195 ff. (5723) (Hebrew) (our citations are from http://www.daat.ac.il/daat/kitveyet/sinay/hamavak-4.htm); see also B. Nahmani, The Battle against the Jewish Schechita (Hebrew), http://www.daat.ac.il/daat/kitveyet/mahanaim/hamaavak.htm (accessed Feb. 6, 2007); see also Krauthammer, supra n. 169, at 153.
172. It is interesting to note that the liberal Italian newspaper La Stampa also found a connection between the prohibition and antisemitism. The newspaper points out that one of Hitler's first acts after he took power on Jan. 30, 1933, was to prohibit Jewish shechita as early as Apr. 21 of the same year. La Stampa (Italy), Cronologia dell'Olocausto (Chronology of the Holocaust), http://www.lastampa.it/_web/_SERVIZI/speciali/GiomoMemoria/cronologia.asp (accessed Jan. 12, 2007).
173. Warhaftig, supra n. 171 (passim). This was the case also for my late grandfather, Prof. Alfredo Michael Rabello (A.M.R.).
174. Uziel, Rabbi B.Z., Sefer Mishpete Uziel (Responsa), vol. 1, Yore Deah, ¶ a (Yerushalayim 1997) (Hebrew) (Responsa). This Responsum is presented (in Hebrew) in the Bar llan University Responsa Project CD; see infra n. 176.
175. B. 1885 Russia d. 1966 Switzerland.
176. Weinberg, Rabbi J.J., Seride Esh: sheelot uteshuvot, (Responsa) edited by Weingorth, A.A. & Rapoport, Sh.A. Hacohen, (Havaad lehozaat kitve hagaon harav J.J. Weinberg), Jerusalem, 1999, Part II # 4 App. 3 Ltr. 12 (# b), 199. The subject of this Responsum is himum habeemol al iede chashmal (the stunment of animals by electricity). The authors obtained this Responsum (in Hebrew) in The Responsa Project of Bar-Ilan University, CD version 14+ (2006), s.v. Sheelot utshuvot (Responsa) Seridei Esh. This project appears on the internet as The Online Judaic Responsa (Bar-Ilan University Responsa), http://www.responsa.co.il/ (accessed Feb. 7, 2007). Seridei Esh appears in the online project as numbers 276-277, http://www.biu.ac.i1/JH/Responsa/CDI/bookse.htm#Responsa (accessed Feb. 7, 2007). The Responsa Project CD is the source of the Hebrew text of all the Responsa quoted in this article.
177. Weinberg, , Seridei Esh: sheelot utshuvot, Part II # 4, himum habeemot al iede chashmal Prefation, p. 28 adds:
Devoted Jews would not listen to us, they would rather suffer and go hungry than defile themselves by eating beef slaughtered by the method prescribed by their evil persecutors. The foul tyrant, head of the Nazi regime and thousands more like him will perish from this world, but our holy religion will prevail forever. The Jews in Germany must stand this ordeal for our holy religion and for the sake of our brethren all over the world. If— God forbid—we rule to be lenient regarding this type of slaughter, we would endanger Jewish kosher slaughter all over the world. We have to show the world that we are prepared to suffer for our religion, and when our enemies see that the prohibition of kosher slaughter does not divert Israel from religion—perhaps they would let it go.
178. Weinberg, , Seridei Esh: sheelot utshuvot, Part II # 4, himum habeemot al iede chashmal Prefation, p. 28.
179. See e.g. Valley, Paul, Muslims Unite with Jews to Defend Animal Slaughter Rites; Government Told to End Religious Exemption from Animal Welfare, The Independent (London) 3 (06 11, 2003); BBC News World Edition (BBC June 10, 2003) (TV broadcast) (text available at http://news.bbc.co.Uk/2/hi/uk_news/2977086.stm); Aisha Labi, A Stunning Debate: A Proposal to Ban Ritual Slaughter in the U.K. Forges an Unlikely Alliance of Muslims and Jews, http://www.time.com/time/europe/magazine/article/0,13005,901030623-458740,00.html (accessed Jan. 12, 2007).
180. Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993); Curnutt, supra n. 29, at 187.
181. Church of the Lukumi Babalu Aye, 508 U.S. at 525.
182. Id. at 526 (“[T]he City Council adopted Resolution 87-66, which noted the ‘concern’ expressed by residents of the city ‘that certain religions may propose to engage in practices which are inconsistent with public morals, peace or safety.’”).
183. Id. at 527-528.
184. Incidentally, Justice Scalìa commented that even if the ordinances only intended to protect animals, it was illegal. Id. at 559. Indeed, militant defense of animals, even without ulterior motives, could harm minorities.
185. See infra at text accompanying nn. 200 ff.
186. See Golan, supra n. 60, at 32.
187. Around 3,500,000 Muslims are living in Germany. See Euro-Islam.info, Country Profiles: Germany, http://www.euro-islam.info/pages/germany.html (accessed Jan. 12, 2007). The number of Jews is around 100,000.
188. Curnutt, supra n. 29, at 187; see O'Brien, David, Animal Sacrifice and Religious Freedom: Church of the Lukumi Babalu Aye v. City of Hialeah 1–22 (U. Press Kan. 2004) (regarding the history and a detailed survey of the background).
189. We do not know of any other religion in Europe with problems regarding the slaughtering of animals for food. A similar problem concerns Confucianism but it is about treatment of animals after death. In any case, the question is of theoretical interest.
190. We have referred before to the leniency we find in certain non-European legislation as to tribal practice. This is the case of Filipino law. See supra n. 88. Conversely, we can take the example of Hinduism that, unlike other faiths, considers the cow a sacred animal. We certainly do not expect a uniformity of religious attitude to animals, but this does not mean that it is necessary to abandon improvements in the situation of animals throughout the world and avoid cruelty.
191. Basdevant-Gaudemet, Brigitte, The Legal Status of Islam in France, in Islam and European Legal Systems 97, 114 (Ferrari, Silvio & Bradney, Anthony eds., Ashgate 2000).
192. See Cha ̀are Shalom ve Tsedek, 27417/95 at ¶ 12.
193. Id. at ¶ 135-36.
194. Id. at ¶ 69 (stating that one of the two reasons on which the government based its denial was that Sha'arei Shalom had about 40,000 adherents compared to 700,000 for ACIP).
195. See infra Sec. VI (regarding the issue of imported meat).
196. See Gunn, T. Jeremy, Adjudicating Rights of Conscience under the European Convention of Human Rights, in Religious Human Rights in Global Perspective: Legal Perspectives 305–330 (van der Vyver, Johan D. & Witte, John Jr. eds., Martinus Nijhoff Publishers 1996) (regarding the limitations of the Court of Human Rights to administer problems concerning freedom of religion and conscience).
197. See e.g. Marie-Benedicte Dembour, Following the Movement of a Pendulum: Between Universalism and Relativism, in Culture and Rights: Anthropological Perspectives, supra n. 146, at 74 (discussing the so-called margin of appreciation).
198. BverfG (Federal Constitutional Court), 1 BvR 1783/99 (Jan. 15, 2002); JZ 10/2002, 500; see Faller, Rico, Staatsziel “Tierschutz”: vom parlamentarischen Gesetzgebungsstaat zum verfassungsgerichtlichen Jurisdiktionsstaat? 88 (Duncker & Humblot 2005); Langenfeld, Christine, Germany, 1 Intl. J. Const. L. 141 (2003); Nattrass, Kate M., “…Und die Tiere” Constitutional Protection for Germany's Animals, 10 Animal L. 283, 291 (2004).
199. See supra Sec. II(A). It should be noted that University of Cairo is not a Muslim religious authority, and there were some misunderstanding as to the exact meaning of this fatwa. See supra n. 62 and accompanying text.
200. See e.g. Gerhard Robbers, The Legal Status of Islam in Germany, in Islam and European Legal Systems, supra n. 191, at 149.
201. The case concerned a Turkish resident without German citizenship.
202. In Germany, local arrangements have been in force for many years to satisfy the needs of Muslims, including importing halal meat.
203. Langenfeld, supra n. 198, at 144.
204. Cf. Kastner, supra n. 90, at 495.
205. See Basic Law for the Federal Republic of Germany (Const.) art. 20a.
206. Id. at Appendix (available at http://www.iuscomp.org/gla/statutes/GG.htm#weimar) (accessed Jan. 12, 2007).
207. Cf. Kymlicka, supra n. 145, at 22.
208. Bürgerliches Gesetzbuch (BGB) (Civil Code) § 90a: “Animals are not things. They are protected by special laws. The provisions dealing with things shall analogously apply to them, insofar as not yet otherwise provided.” See e.g. Steding, Rolf, § 90a BGB: nur juristische Begriffskosmetik?—Reflexionen zur Stellung des Tieres im Recht, Jus 962 (1996).
209. See 7 U.S.C. §§ 1901-1907; Wolfson & Sullivan, supra n. 36, at 207; see e.g. Animal Welfare in Europe, supra n. 31, at 6; see also Decoux, Elizabeth L., In the Valley of the Dry Bones: Reuniting the Word “Standing” with its Meaning in Animals Cases, 29 Wm. & Mary Envtl. L. & Policy Rev. 681, 682 (2005).
210. Levinger, I.M., Shechita in the Light of the Year 2000, at 12 (Maskil L'David, Jerusalem 1995) (“The terms humane and slaughter represent a paradox. Slaughter cannot be humane by any method, for slaughter is cruel. And yet the slaughter of animals being a necessity, must be performed as humanely as possible.”); Munk et al., supra n. 72, at 107; Rowan et al., supra n. 43, at 18; see e.g. Kook, Abraham Isaac, Hazon ha-tsimhonut veha-shalom: mi-behinah Toranit: orot meha-maamarim Afikim ba-Negev veTelalei Orot 8 (Cohen, David ed., Yerushalayim 1960–1961) (Hebrew) [hereinafter Kook, Hazon ha-tsimhonut veha-shalom]: “It cannot be conceived that the merciful Maker of the universe prescribed an eternal rule in His goodly works, which does not enable mankind to exist without uprooting its morals by bloodshed, even the blood of animals.” Id.
211. In this context, it is interesting to note the Talmudic anecdote (BT Baba Metzia 85a) about R. Judah the Patriarch (editor of the Mishnah). The Talmud inquires the reason for the suffering which R. Judah has had to endure, and says that they had come and gone as a result of his conduct. “They came to him through a certain incident.” What is it?—A calf was being taken to the slaughter, when it broke away, hid his head under Rabbi's skirts, and lowed [in terror]. “Go,” said he, “for this were you created.” Thereupon they said [in Heaven], “Since he has no pity, let us bring suffering upon him.” “And [the suffering] departed likewise.” How so?—One day the Rabbi's maidservant was sweeping the house; [seeing] some young weasels lying there, she made to sweep them away. “Let them be,” said he to her; “It is written, and his tender mercies are over all his works. Said they [in Heaven], “Since he is compassionate, let us be compassionate to him.” See e.g. Kook, Hazon ha-tsimhonut veha-shalom, supra n. 210, at 8.
212. Regan, The Case for Animal Rights, supra n. 35, at 330.
213. See Rowan et al., supra n. 43, at 10.
214. Of course scientific developments always involve ethical issues.
215. See Weinberg, supra n. 176, at vol 1; Frank, R. Z.P., Beinyan Girushin, hagaalath porcelain, vehimum leschechita Vayita Eshel 5750 # 543 (Hebrew); Razin, R. Yosef, Himum Behemah Kodem Schechita, in Atereth Hakahamim 41–46 (Hebrew); Grodzhinsky, R.H., Himum Behemah Leachar Schechita, in Atereth Hakahamim 5697 47–48  (Hebrew); Schlesinger, R.Y.M., Himum Behemah Lifnei Schechita, in Esh Tamid 5741–5744  (Hebrew); Hoffmann, R.D.Z., Himum Behemah al yedei Shikrouth, in Hamaayan 34, 5754 9–20 (Hebrew); Eshkoli, supra n. 15, at 607.
The works by Frank, Razin, Grodzhinsky, Schlesinger & Hoffman are quoted in the Bibliography of the Responsa Project of Bar-Ilan University. See supra n. 176.
216. See e.g. Levinger, I.M., Schechita in the Light of the Year 2000: Critical Review of the Scientific Aspects of Methods of Slaughter and Shechita 121–127 (Maskil L'David 1995) [hereinafter Levinger, Schechita in the Light of Year 2000] (discussing in detail the various methods of slaughter); Shore, L.S., The Scientific Approach to Resolving Conflicts between Veterinary Science and Schechita, 54 (1) Israel Journal of Veterinary Medicine (1999) (available at http://www.isrvma.org/article/54_1_4.htm).
217. Schochet, supra n. 20, at 284.
218. Segni, Riccardo Di, Noten ta ̀am Le-shevah: ta ame ha-kashrut be-farshanut ha-Yehudit (The Jewish Interpretation of Dietary Laws) 43 (Lamed 1998) (Hebrew); see also Riccardo Di Segni, Macellazione rituale (Shechitah) Allegato 5, in Macellazioni Rituali, supra n. 68, at 59 ff.
219. Authors' interview with Dr. Zichron Chason, DVM, Denmark, (Apr. 12, 2005). In this interview Dr. Chason argues also that CO2 induced anesthesia was preferable to electric stunning. The efficiency of this method had been proven in killing pigs in Denmark; but it was never used for cows, perhaps due to technical difficulties. In any case, it has to be ascertained that this method was acceptable by Jewish law. Furthermore, the possibility of acupuncture should be investigated, because it significantly reduces pain for men and animals. Id.
220. Hakhamim, Yoré Deà § 1. This Responsum is presented (in Hebrew) in the Bar Ilan University Responsa Project CD; see supra n. 176. Ha-Levi was born in Yemen, came to Israel in 1923, d. 1973.
221. The prohibition is reiterated by R.M. Roth: “To conclude, it is clear from the halakhic point of view that electric shocks render the animal treifa (unfit to eat) and it is prohibited to use. And observant Jews must not partake in it because it is an abomination.” Responsa Kol Mevaser Part I # 81 s. v. ulam; also Weiss, R. I.J. (1902–1989), Responsa Minhath Itzhak Part II # 27. (This Responsum is presented (in Hebrew) in Bar Ilan University Responsa Project CD; see supra n. 176.):
[C]oncerning stunning before slaughter (a) it is not true that schechita is a more painful death than any other method, it has been ascertained by experts (b) and the religious prohibition of cruelty to animals does not apply at the time of death … and Maimonides and Nachmanides also state that schechita is the most merciful method ….
These Responsa are presented (in Hebrew) in the Bar Ilan University Responsa Project CD; see supra n. 176.
222. Levinger, Schechita in the Light of the Year 2000, supra n. 216, at 20:
Today a method of slaughter is being sought which will, with certainty, eliminate pain perception in the animal and at the same time, ensure good exsanguination. Schechita, if it is correctly carried out without previous stunning, represents a method which complies with these postulates. Brain function is eliminated and ceases very rapidly, whereas heart function ceases only later, thus ensuring a high degree of exsanguinations.
Id. at 128; see also Levinger, I.M., Haschechita veZàar Baalei Chaim, especially the addendum at 175 (Jerusalem 2004) (Hebrew).
223. Barry, Culture and Equality, supra n. 105, at 42; see also id. at 296 (complaining that the British government took into consideration the opinion of Jews and Muslims since “these leaders had an entrenched position based on religious belief and no credentials as scientists.”).
224. See Department for Environment, Food, and Rural Affairs (DEFRA), FAWC Report on the Welfare of Farmed Animals at Slaughter or Killing-Part 1: Red Meat Animals, http://www.defra.gov.uk/animalh/welfare/farmed/final_response.pdf (accessed Jan. 12, 2007).
225. All forms of exploitation are likely to raise ethical questions. See e.g. Regan, The Case for Animal Rights, supra n. 35, at 151.
226. Only human beings can be defined as moral agents, but this does not exclude other creatures from being moral patients. The inclusion of animals in the category of moral patients does not contradict slaughter because neither Judaism nor Islam negate a moral viewpoint toward animals. On the contrary, Scriptures command us to prevent abuse of animals.
227. The principal advocate of the idea that animals have a moral status is Tom Regan. Nevertheless, we are aware that important thinkers do not think that animals are included in moral considerations, and the obligation toward them is that of protecting the feelings of others.
228. See supra Sec. II(A).
229. Professionalism plays an important role indeed in all aspects relating to the treatment of animals. And it is commonly accepted that treatment of the animals must be in the hands of highly skilled persons. For example, all animal experiments must be supervised by a veterinarian. Similarly, Jewish tradition stresses the professional character of the slaughterer.
230. To be sure, the requirement of moral integrity applies to every candidate for public office in the Halakhah. Moreover the Jewish slaughterer must pass an exam every year before the rabbinical authority who approves his physical fitness to be a schochet.
231. Kook, Telalei Orot, supra n. 155, at 26 ff. Kook, Hazon ha-tsimhonut veha-shalom, supra n. 212. It should be remembered that the late Rabbi Shlomo Goren, former Chief Rabbi of Israel, was a strict vegetarian.
232. As it is commonly known, Jewish religion forbids the eating of blood. One of the aims of the shechita is to allow the draining of the blood. According to Dr. Chason, Shechita facilitates the important aim of exsanguinations. Interview with Dr. Chason, supra n. 219. Together with the incision made at the throat, it is also necessary to sever the wind-pipe esophagus and the vagus nerve which ceases the functioning of the parasympathetic nervous system, only the sympathetic nervous system remains functioning, the heart-beat rate increases and the blood leaves the body before the heart stops beating. This results in maximum blood flow, and the pain of the animal is reduced to minimum. Exsanguination also prevents certain diseases contracted from the animal by man.
233. Kook, Telalei Orot, supra n. 155, at 27.
234. Singer, Animal Liberation, supra n. 7, at 8.
235. Cohen & Regan, supra n. 151, at 38-40 (arguing against bestowing rights to animals and advocating their use by humans).
236. Barry, Brian, Theories of Justice 203 ff. (U. Cal. Press 1989); Cavalieri, supra n. 125, at 89.
237. See e.g. Singer, Ethics into Action; supra n. 124, at 156, 158. See also Singer, Animal Liberation, supra n. 7, at 154.
238. For example, Swiss Law § 61(3) takes scientific progress into consideration.
239. The application of the Halakhah should relate to changing circumstances. E.g. Aviner, supra n. 5, at 432; Rosenfeld, supra n. 5, at 258; Meisels, supra n. 5, at 366.
240. See e.g. Jones, 347 F. Supp. 1284. In this sense Jews and Muslims led the way in animal welfare. For example R. Saadiyah Gaon asserts that those mercifiil to animals are rewarded by Heaven. Emunoth Vedeoth Ch. V, cited in Levy & Levy, supra n. 7, at 65.
241. Masri, supra n. 22, at 86.
242. Waters v. People, 46 P. 112, 115 (Colo. 1896).
243. We have to note that people sometimes agree to donate organs or volunteer for medical experiments. Cf. Rabello, Alfredo Mordechai, An Equitable Distribution of Human Organs for Transplantation (Hebrew U. Jerusalem 2003); Elon, Menachem, Neshamah Yetherah Bamishpat (Additional Soul in Law: A Selection of the Writings of Justice Menachem Elon) 134 ff. (Hacohen, Aviad ed., Mozaikah 2003) (Hebrew).
244. See Bayles, Michael D., Introduction, in Contemporary Utilitarianism 1 (Bayles, Michael D. ed., Anchor Books 1968) (“Utilitarianism is a normative theory of ethics which, in the most general terms, claims one ought to do those actions which produce good or avoid evil for everyone.”). In other words see also Mill, J.S., Utilitarianism, in Studies in Utilitarianism 39, 44–45 (Hearn, Thomas K. Jr. ed., Appleton-Century-Crofts 1971) (“Actions are right in proportion as they tend to produce happiness.”) Arlington, Robert L., Western Ethics: An Historical Introduction 318 (Maiden 1988) (discussing the theories of Bentham and Mill); Smart, J.J.C., Extreme and Restricted Utilitarianism, 6 J. Phil. 344 (10 1956).
245. This argument might be expressed as follows: “Kantianism for people—utilitarianism for animals.” In the opinion of Kant, only humans exist as an end in themselves (independently of the fact that we should treat animals with compassion). See e.g. Kant, supra n. 122, at 239; Wood, Allen, Humanity as End in Itself, in Kant's Groundwork of the Metaphysics of Morals: Critical Essays 165, 171 (Guyer, Paul ed., Rowman & Littlefield Publishers 1998); Regan, The Case for Animal Rights, supra n. 35, at 174. The utilitarian approach is advocated by numerous authorities, e.g., Prof. Nozick who is of the opinion that animal suffering is a question of relative costs, meaning that morally, animals should not be made to suffer, but if their suffering is beneficial to humans, then it may be permissible. Nozick, Robert, Anarchy, State and Utopia 35, 39 (Basic Books, Inc. 1974); see also Lerner, P., Reflections on Feeding Stray Cats, 9 Ha-Mishpat 407 (2004) (Hebrew).
246. This argument is far from satisfactory for animal protectionist organizations.
247. See e.g. (Animal Welfare Act) § 7, May 25, 1998, BGBI. I (Federal Law Gazette) at 1094 (Ger.).
248. These criteria were published by two British scientists, Russel and Bursh in 1959. Since then they have gained acceptance by most legal systems, in spite of the differences between various countries. See M. Salvi, Integrità e Valore Intrinseco negli Animali—Il Caso olandese, in Per un Codice degli Animali: Commenti sulla Normativa Vigente, supra n. 34, at 210.
249. In the case of non-vegetarian people.
250. This argument would be made if it was proven that the suffering was greater than in slaughtering with stunning. As far as we know, this has not yet been proven beyond doubt.
251. According to Singer, Rabbinical authorities in Sweden, Norway and Switzerland condoned stunning before slaughter. Singer, Animal Liberation, supra n. 7, at 154. After the visit of Chief Rabbi Goren to Sweden, this approach was changed, and stunning is no longer accepted. See Golan, supra n. 60, at 23; see also supra n. 217 and accompanying text. On the other hand, it is possible that in the future halakhic authorities will explore other ways to adjust halakhic requirements to the demands of animal protectionists for stunning.
252. On this point it is possible to find the agreement of authors like Barry who do not agree with multiculturalism. See Barry, Culture and Equality, supra n. 105, at 43.
253. In Switzerland, the importing of kosher meat is not regulated although there is de facto permission. Until now, the voices calling to forbid the importing of kosher or halal meat have not succeeded in changing the status quo. See Golan, supra n. 60, at 15.
254. McConnell, Michael Mc Connell & Posner, Richard A., An Economie Approach to Issues of Religious Freedom, 56 U. Chi. L. Rev. 1, 56–60 (1989) (discussing the relationship between religious freedom and economics).
255. See Golan, supra n. 60, at 23.
256. Hence, a unique aspect of shechita with regard to the freedom of occupation is that a shochet (person performing slaughter) cannot slaughter by other methods at odds with the Halakhah, and therefore he may not work in “secular” slaughtering.
257. Act 1980-6-20, § 2.
258. In any case, the slaughtering of cows in Israel is carried out on a very small scale because most of the beef is imported, but it is only permissible to import kosher beef. As far as we know, most of the non-kosher meat sold in Israel is pork, although non-kosher beef is also sold after slaughtering, if declared as non-kosher. As a matter of fact, it is difficult to get beef of cows slaughtered after stunning. Although we have not done an exhaustive research on the point it seems that those who are selling it (butchers, restaurants) are not aware of this point.
259. This is not an imaginary scenario. There have been attempts in this direction in the past. See Proposed Prevention of Cruelty to Animals Act (protection of animals) (amendment stunning before slaughter) 5764-2004 § a. “Animals must not be slaughtered unless first stunned so as to reduce the suffering caused at the time of slaughter; b. The Minister of Agriculture will specify the exact method of stunning.” A similar bill was proposed in 2000. The former M.K.A. Poraz (Shinui Party) said: “the purpose of this proposal is to prevent unnecessary suffering from animals caused by the traditional method of slaughter. The slaughtering of animals will be prohibited unless previously stunned by electric shock preventing suffering.” (From the internet site of Shinui for the 15th Knesset.) This position is opposed to the scientific conclusion of the study by Dr. Levinger. See Levinger, Schechita in the Light of the Year 2000, supra n. 212.
In reaction to a late stunning proposal of M.K. Shalgi (Shinui Party) in the 16th Knesset, the Chief Rabbi of Israel Shlomo Amar declared his opposition to the proposal since stunning before Shechita is forbidden according to Halacha. Ma'ariv (May 6, 2004), http://www.maariv.co.il/online/11/ART/705/268.html (accessed Feb. 19, 2007).
260. Kook, Hazon ha-tsimhonut veha-shalom, supra n. 210, at 20.
261. Responsa, , Minhath Yitzhak # 155. This Responsum is presented (in Hebrew) in the Bar Ilan University Responsa Project CD; see supra n. 176.
262. Id. Also see Rabbi B. Lao Teudath Kashruth, Behinath Hammar Vemah Shesaviv Lo, 1 Maagalei Zedek 20 ff. (2004) (Hebrew) (discussing ethical problems in the context of cruelty toward animals and suggesting that the grades of Kosher licensing should take in to consideration the element of animal suffering). “So far we have stated our objections from the humane point of view, and these objections in themselves are of a religious character since it is an integral principle of the Jewish religion to be humane to animals.” Sassoon, Soloman David, A Critical Study of Electrical Stunning and the Jewish Method of Slaughter (Schechita) 21 (2d ed., Soloman David Sassoon 1955). “Schechita seems to us to be more humane, and certainly not less humane, than the method of stunning.” Id. at 34.
263. See Animal Welfare in Europe, supra n. 31, at 8.
1. Ps 145:9. All quotations from Hebrew sources are the authors' translations, unless otherwise noted.
* Senior Lecturer, Ramat Gan School of Law, Ramat Gan, Israel.
** Professor of Law, Hebrew University of Jerusalem (emeritus); University of Haifa, Haifa, Israel.
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