The new Kosher

By Anton Katz

The laws relating to food, and what humans may or may not consume, concern health, morality, philosophy and religion.

In fact, food choices impact nearly every aspect of our lives. Without food there is no life and we die. And if we eat the ‘wrong’ foods we will get sick and maybe die. Whether or not the theories about bats, and their droppings in wet markets in Wuhan and COVID-19 have any validity what we all know as fact by way of experience is that to eat old fish, which has gone off, is a disaster health-wise.

Also, if we choose to eat other living creatures there are the laws, rules and protocols that government and religions may and do impose. And how do the laws regarding Kosher or Halaal food fit into secular government regulation? So, may government enact laws that effectively prohibit kosher foods? These thoughts occurred to me while reading about a recent case in the European Court of Justice involving Belgium.

The case is about whether certain decrees of the Flemish and Walloon Regions (in Belgium), which prohibit slaughter without pre-stunning, are a violation of European Union law. The International Association of Lawyers and Jewish Lawyers argued before the Court against the imposition of the outright ban. (IJL-Amicus-Brief.pdf)

In the IJL’s written argument it explained that in the interest of animal welfare, some jurisdictions require that prior to slaughtering for the purpose of human consumption of certain animals (e.g. cattle, sheep, swine) the animals be ‘stunned’. Stunning is performed in a different ways, such as electric shock or shooting of a metal bolt through the brain of the animal. The stunning renders the animal insensate before a knife is put to its flesh and the actual butchering takes place. The stunning procedure itself causes pain to the animal but it is of a very short duration.

Jewish (and Muslim) religious law prohibit such stunning prior to the actual act of slaughtering. The animal to be slaughtered must be alive, whole and without blemish. Stunning prior to the slaughter would compromise all three requirements. The slaughtering, which must be performed by a person specifically trained, consists of single incision which severs the carotid arteries. Animals not slaughtered in the required manner may not be consumed. When performed correctly, the massive drainage of blood from the head of the animal also renders it insensate, though this will occur over a longer period of time compared to pre-cutting stunning. The argument is that application of the legal pre-stunning requirement violates the strictures of Jewish and Islamic law and amounts to a legal and factual outlawing of religiously permitted slaughtering. It would have the collateral effect of forced vegetarianism (fish may still be consumed) on these communities of faith, and may force these communities to eventually emigrate, leading to the end of Jewish life in European Member States which will impose such an absolute ban. The IJL submitted that to forbid a community of faith to prepare their food in accordance with their religious obligations is a prima facie violation of the freedom of religion.

One of the government’s defences is that such religious communities could import their meat from countries which do not impose such a ban. But the IJL counters that such a defence is no more than an instance of hypocritical ‘moral dumping’ onto other societies. And moral dumping has long been denounced in the context of environmental policy. ‘We will ban coal burning in our society, but import our electricity from countries which allow coal burning’. Also there are no adequate solutions for the importation of fresh meat to all Jewish (and Muslim) communities.

Under South African law animals have no rights. Animals are regarded as objects, just like furniture and other inanimate possessions. Where does cruelty to animals fit in? Animal mistreatment is dealt with in terms of the Animals Protection Act 71 of 1962. Any person who ill-treats, neglects, infuriates, tortures or cruelly beats, or maims goads or terrifies any animals; or confines, chains, tethers or secures any animals unnecessarily or under such conditions or in such a manner or position as to cause that animal unnecessary suffering or in any place which affords inadequate space, ventilation, light, protection or shelter from heat, cold or weather; shall be guilty of an offence and liable to be fined or to imprisonment for a period not exceeding twelve months.

Because animals have no rights the purpose of the Animals Protection Act is not to protect animals, but rather to protect against human suffering at seeing or experiencing the animal suffering. Canned hunting, the cruel transport of animals, dog fighting and poaching horns are some issues that have drawn media attention. Bearing the purpose of the animal protection in South Africa it is unlikely that an absolution prohibition on slaughtering without stunning could come into effect in South African law.

It would be amiss were I not to refer to the developing idea that veganism is the new kosher. Rabbi David Rosen, former Chief Rabbi of Ireland was a rabbi at Marais Road and on the Beit Din in Cape Town. During the 1970s he visited the Cape Town slaughter houses and checked up on the slaughterers to ensure that their knives were perfectly sharp and that the slaughtering was taking place in accordance with Jewish law. His experience began a journey to what has become a driving mission to promote veganism as a fundamental aspect of Judaism. He and about 70 other rabbis world-wide in 2018 encouraged fellow Jews to transition toward animal-free, plant-based diets. Their declaration claimed this approach to sustenance is an expression of shared Jewish values of compassion for animals, protection of the environment, and concern for our physical and spiritual well-being (https://www.jewishveg.org/rabbinic-statement). Interestingly, other rabbis, such as Rabbi Moshe Tendler hold the view that “the Torah will not allow someone to be a strict vegetarian.” (http://www.ivu.org/religion/articles/jewishveg.ivu.revised.3.05.doc)

Whatever the merits of the arguments for or against veganism, vegetarianism or meat based diets from a religious, health, philosophical and moral basis may be what is certain is that the debates between secular and religious authorities will continue. And indeed arguments and discussions within religious communities will persist as perhaps new and different interpretations of ancient texts are generated.

And as new technologies come to light and science advances, altered and distinctive insights may give rise to interesting and wise views on the laws, both religious and secular concerning what may be eaten, and in what circumstances.

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