Unscrolled Parashat Ki Teitzei: The Paradox of a Bird’s Nest

In Parashat Ki Teitzei, we learn the commandment of Shiluach Ha’Ken, the “sending away of the bird’s nest.” “If, along the road, you chance upon a bird’s nest,” the law states, you are not to take “the mother together with her young.” Rather, you are to send the mother away, and only then may you take the eggs (Deuteronomy 22:6-7).

The medieval Jewish rabbi and commentator Maimonides was conflicted as to the meaning of this law. In his “Guide to the Perplexed,” he teaches that the law’s purpose is to engender compassion and to prevent animal suffering (3:48).

In his commentary on the Mishna, however, he takes a different position. If God was truly concerned with the welfare of animals, God would have forbidden the slaughter of animals altogether. (Mishnah Berakhot 5:3) Therefore, Maimonides concludes, the law is what is known as a chok, a commandment without reason, which we are nevertheless obligated to obey.

Different interpretations bear different fruit. Understanding the law’s ethos as one of compassion, one might, in the end, decide to “leave the whole nest untouched” (“Guide to the Perplexed” 3:48).

Understanding this law as a chok, however, creates the impression that snatching a bird’s eggs is God’s desire, and ought to be pursued irrespective of whether one wants or needs those eggs. Indeed, this is what some religious Jews do when they “chance upon” a bird’s nest, grabbing the eggs for the sole purpose of scoring some “mitzvah points.”

That said, we can understand Maimonides’ reasons for downplaying the ethical dimension of this law in his Mishnah commentary. As a sharp-minded and philosophical person, how could he accept that God’s law of compassion would be so imperfectly compassionate? Why should an all-wise God permit slaughter in one part of the Torah and then turn around and fawn over a bird in another?

The same problem bedevils Parashat Ki Teitzei’s law of the captured woman. When a man captures a woman in war, according to this law, he shall take her home, cut her hair, and pare her nails. He shall let her spend a month mourning her family, and only then may he take her as his wife. If, after all that, he no longer desires her, he shall let her go as a free woman.

Like the law of the bird’s nest, the ethos of this law seems to be compassion, but can we really accept that? The captured woman’s pain and suffering is taken seriously. Not seriously enough, however, to grant her freedom and autonomy. And so, like Maimonides, we are torn.

We could take this as grounds to dismiss the law. If we are very secular, we might dismiss it as a bit of patriarchal nonsense from the past. If we are very pious, we might dismiss it as a chok.

In both cases, we would be letting the perfect defeat the good.

The Torah, however, does not speak the language of the perfect. It is a book of reality, a book of life and a book of humanity, all of which require constant compromise. Its laws are animated by the timeless values of justice, mercy, compassion, equality and kinship, but they are concealed by the cultural markers, context and blind spots of the Torah’s historic moment.

No one understood this more than the Kabbalists, who taught how the supernal Torah (perfect and timeless) was forced to don the garments of this world when it was given to us at Mount Sinai.

To understand how this works, simply put yourself in the Torah’s place. Imagine, for instance, that you were to witness an injustice against an animal at a factory farm. And now imagine that you were in a place to decree laws for all mankind to follow. Lifting your staff in the air, you declare: “When you raise an animal for slaughter, you must care for its comfort and wellbeing all its life. When the time comes to slaughter the animal, you must do so in a way that causes no pain at all.” Hearing this law, your followers would be moved by the depth of care you extended toward the animal kingdom.

Now imagine that 3,000 years have passed. Your book of laws is still widely read and observed, but the world has changed. Animals are no longer raised for meat. The development of cell meat has made animal agriculture obsolete, and humans now regard the practice of killing animals for food as a barbaric chapter from the dark ages. Reading your law about animal welfare, they see nothing but speciesism and cruelty. They don’t much care that you put a nice face on it by trying to be kinder to the animals. At the end of the day, you condoned their enslavement and slaughter.

Would those future critics of your law be wrong? Not quite. But they would have missed the point, confusing the law’s garment with its spirit, and this would be their loss.

But they would have missed the point, confusing the law’s garment with its spirit, and this would be their loss.

And so it would be our loss to confuse spirit with garment in our reading of Torah. Parashat Ki Teitzei thrums with the impulse of compassion toward all of creation. For this reason, it is one of my favorite portions.

Go and read it now and let yourself be touched by its profound spirit. Then ask which garments (actions taken and words spoken) are needed to bring that spirit into the world today.

Matthew Schultz is the author of the essay collection “What Came Before” (2020). He is a rabbinical student at Hebrew College in Newton, Massachusetts.