On today’s daf, the mishnah continues to list the various transgressions which are punished with flogging. One of the mitzvot that the mishnah discusses is shiluach ha-kan, literally sending away from the nest. Deuteronomy 22:6–7 states that, when it comes to trapping birds, “You shall not take the mother with her fledglings; you shall send the mother, and the fledglings you may take for yourself.” And while it isn’t a mitzvah that most of us in the modern world perform on a regular basis, Deuteronomy 22:7 explains that the mitzvah is fulfilled, “in order that you may fare well and have a long life.” So it seems to be a pretty big deal.
Today’s mishnah addresses the question of how the transgressor of this mitzvah is punished:
Rabbi Yehuda says: He is flogged, and does not send (the bird away).
And the rabbis say: He sends (the bird away) and is not flogged.
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This is the principle: Any prohibition that entails a command to arise and perform, he is not liable to lashes for its violation.
Based on the parallel discussion in Hullin 141a, Rashi explains that Rabbi Yehuda reads the biblical verses as requiring a specific order of activities in order to fulfill the mitzvah: First send away the mother bird, then take the fledglings. Since that order has been irrevocably violated, the sinner is punished with lashes. However, as Rashi explains, the rabbis don’t read the verse as requiring a specific order of actions. As long as he can still send the mother bird away and does so, he is spared from lashes.
The mishnah concludes with a general principle, that the performance of any prohibition that can be solved by doing something should be solved. It is more important to fix what went wrong than to punish the original transgressor. It’s worth noting that the Talmud does not address this general principle in its discussion of the laws of flogging. For that, we’ll have to wait for the discussion of animal slaughter in Tractate Hullin. But there is a rich Jewish tradition of thinking about this law of sending away the mother bird.
There are four biblical laws that address the idea of animal families: the law of shiluach ha-kan, the prohibition against cooking a goat in its mother’s milk (Exodus 23:19 and others), the command to let a newborn animal stay with its mother for a week after birth (Exodus 22:29) and the prohibition against slaughtering an animal and its mother on the same day (Leviticus 22:28). As Beth Berkowitz has noted, already 2,000 years ago, Jewish interpreters like Philo saw these laws as God’s way of teaching human beings compassion for those animals who we use as food.
But as Berkowitz has argued, these laws of animal families do even more than that: “Even if rhetorical parallels are just that — rhetorical, in language only, and not reflective of anything like real equity — they still point to pathways of thinking similarly about human and animal families that go back to the Bible.”
What might it mean to recognize that animals have their own complicated, species-specific forms of family? That these family relationships are emotionally significant and need to be recognized as such (even or perhaps especially for the meat eaters among us)? And in light of the mishnah on today’s daf, what does it mean to prioritize making those relationships right?
Read all of Makkot 17 on Sefaria.
This piece originally appeared in a My Jewish Learning Daf Yomi email newsletter sent on April 25, 2025. If you are interested in receiving the newsletter, sign up here.
