The Shiluach HaKen Dilemma

In this week’s parasha, Ki Tetze, we read about the famous mitzvah of sending away the mother bird:

If a bird’s nest happens upon you on the way, in any tree or on the ground, chicks or eggs, and the mother-bird is sitting over the chicks or the eggs, do not take the mother together with her young. You shall surely send away the mother bird, and take the young for yourself, so that it will be good for you and your days will be lengthened. (Deuteronomy 22:6-7)

There are actually two mitzvahs here: not taking the mother together with her children (a negative mitzvah), and sending away the mother bird before taking the children (a positive mitzvah). The Torah does not explain the rationale here, but for most of history the message seemed quite obvious: don’t be cruel! It was so obvious that the Mishnah (Berakhot 5:3) states we should stop people from requesting in their prayers that since God has mercy on birds, He should also have mercy on us. The Rambam (Rabbi Moshe ben Maimon, 1138-1204) comments here that the reason one shouldn’t pray this way is because it is seemingly giving a reason for the mitzvah, yet we do not know the true reason for the mitzvah, except that it is God’s Will. Moreover, the Rambam points out that if it is a matter of mercy, then God should have commanded us not to slaughter or eat any animals at all!

Having said that, in Moreh Nevukhim (III:48), the Rambam notes that it really is about being compassionate. While we cannot presume to know the true intent of the mitzvot “other than the will of God alone, still we are inclined to follow the other view”. The Rambam adds that this mitzvah only applies when a person really wants (or needs) to eat those eggs or chicks. “In most cases, this commandment will cause man to leave the whole nest untouched, because [the eggs] which he is allowed to take are, as a rule, unfit for food.” So, if a person does not intend to actually eat the birds, it is best to leave the nest alone.

Despite this, in many Orthodox circles today it has become common to think about this mitzvah in a totally opposite way—that it has nothing to do with compassion, and that there is a mitzvah to shoo away the bird whether a person will eat the eggs or not. This turns the whole mitzvah on its head and, instead of being an act of compassion, appears to be an act of unnecessary cruelty! This puzzling development is not particularly new, and in his monumental Torah Temimah, Rabbi Baruch Epstein (1860-1941) noted on the verses in question:

In general, I am in astonishment. How could someone possibly think that the Torah commanded us to do this even against His will regarding the outcome? For it is clear and beyond all doubt, that of the foundational reasons in this mitzvah in general is that we should not be cruel and take the mother while she is sitting on her young; and it is only because, at the end of the day, the goal of all creatures is that they were created for man, just as slaughtering an animal [for food] is permitted, that the Torah permitted man to take the young in this way, via sending away the mother beforehand so that she should not see her young being taken. And if so, it is clear that the Torah is only granting an allowance with this, but with someone who does not at all want to involve himself, it is certain that he is permitted to simply pass it by. In fact, he is making things even better for the mother and young by leaving them together.

For Rabbi Epstein, the issue here is so obvious that he is simply dumbfounded by how it has come to be understood in opposite fashion. He concludes that, of course, the best thing is simply to leave the nest alone! We find that the vast majority of poskim throughout history understood it in similar fashion, that it is ultimately about compassion, and there is no need to take away the eggs unless one absolutely intends to make use of them. (For an extensive list of the sources, see here for Rabbi Natan Slifkin’s excellent in-depth analysis.)

If the shiluach haken issue is so clear, why is it that such a vastly opposing interpretation has developed? The main reason is probably due to a couple of passages in the Zohar. The first passage, in Zohar Chadash (Midrash Ruth, Ma’amar Kan Tzippor), interprets the Torah verses metaphorically:

“If a bird’s nest happens upon you on the way…” the ‘nest’ is teshuvah, the ‘way’ is Rachel… ‘in any tree’ this is the Shekhinah, ‘or on the ground’ refers to this lower world, ‘chicks’ refers to the Twelve Tribes of Israel above, while ‘eggs’ refers to Israel here below… And the Shekhinah cries out over her children, and it is written, “You shall surely send [shaleach teshalach]”—the two mentions of “send away” refer to the First and Second Temples…

In other words, the chicks or eggs refers to the souls of Israel, and the fact that they are sitting in their nest, on their home tree, under the wings of their mother bird, symbolizes Israel doing teshuvah and clinging to the Divine Presence. Yet, when the mother is sent away, and her babies are taken, she cries for her children, just as the exiled Shekhinah cries for the exiled souls of Israel. (Similarly, the soul of Rachel Imenu, who was buried “on the way”, cries for her children in exile, as in Jeremiah 31:15.) The Zohar here continues to say that when the mother bird is shooed away, God’s mercy is aroused, for “His mercy is upon all His creations” (Psalm 145:9), and He then has compassion on Israel as well.

Thus, from a Kabbalistic perspective, sending away the mother bird really is cruel, but serves to arouse God’s mercy upon Israel. As such, fulfilling this mitzvah may serve to hasten the Final Redemption. Because of this, some of the more mystically-inclined authorities insisted that shiluach haken be done, regardless of whether a person needs the eggs or not. At the same time, though, one of the first of the 613 mitzvot is to emulate God’s ways, and “just as God is merciful, you should be merciful” (Sefer HaMitzvot, #8). So, a person who happens upon a bird’s nest, and restrains himself from harming the innocent creatures, is being merciful “upon all His creations”, and thereby fulfilling a Torah mitzvah, too! Besides, the Zohar says the chicks in the nest represent Israel doing teshuvah and clinging to God, so wouldn’t it better to leave them there, hovering under God’s wings (Deuteronomy 32:11), than to send them into exile?

The Temple: God’s Nest

According to at least one tradition (as in Yemenite Torah scrolls), the letter kuf in the word ken (“nest”) is written enlarged. This mirrors the large kuf that is enlarged in the word ken of Psalm 84:4, according to all traditions. That verse in Psalms is “Even the bird has found a home, and the swallow a nest for herself in which to set her young, near Your altar, Lord of Hosts, my King and God.” Like the birds, we wish to have a “nest” right next to God. The very next verse in this Psalm is the opening line of Ashrei, “Fortunate are those who dwell in Your house; they forever praise You, selah!” Although Ashrei is Psalm 145, we always introduce it with Psalm 84:5. Of course, it is in Psalm 145 where we read that God is merciful “upon all His creations”, as frequently cited in discussions of shiluach haken. The idea behind these linked Psalms is that we all wish to dwell in God’s house forever, under His wings, for He is “like an eagle who rouses His nest, and hovers over His chicks…” (Deuteronomy 32:11) The “nest” is symbolic of God’s dwelling place, and on Earth that place is the Temple, as implied by Psalm 84:4. Rabbeinu Bechaye (1255-1340) teaches that this is the secret meaning of the large kuf in the “nest” of that Psalm verse. To properly understand this, we have to look back at another special kuf, in Genesis.

In Genesis 27:46, Rivka Imenu calls out that she has absolutely had it (קַ֣צְתִּי בְחַיַּ֔י) with the immorality that was brought into her home. The kuf in the word katzti is always written small, and Rabbeinu Bechaye comments here that this is because Rebecca prophetically foresaw that destruction of the Temples caused by such immorality. The kuf, with a value of 100, symbolizes the Temple which was 100 cubits long. (Megaleh Amukot adds, as cited by Rabbi Dovid Leitner in his Understanding the Alef-Beis, that the milui of kuf, קוף, is 186, the value of מקום, one of the Names of God, denoting His presence within space.) Rabbeinu Bechaye then introduces the large kuf in Psalm 84 to teach that it is something of an antidote to the small kuf in Genesis 27. While the small kuf in Genesis represents the Temple’s destruction, the large kuf in Psalms signifies its future reconstruction.

For the time being, God’s “dwelling place” remains in the Heavens, surrounded by the souls of the righteous. Indeed, the Zohar (III, 196b) says the verse in Psalm 84 about the birds in the nest is referring to all the righteous souls in Heaven. Elsewhere (Zohar II, 7b), we are told that the soul of Mashiach is in a Heavenly place called kan tzippor, the “Bird’s Nest”, awaiting the time when he will be summoned to usher in the Redemption. A lot more detail is given in Zohar III, 164b, where it is said that whenever Mashiach wishes to read from the Torah, two eagles fly over him and adorn him with a golden crown (as in Psalm 21:4). The doves sent by Noah are there, too, as are ‘ofin dinur, flaming phoenixes. And the time will soon come for Mashiach’s soul to descend to this world and rebuild the Temple—God’s “nest” on Earth. In short, all of this mystical imagery comes to teach that shiluach haken is deeply symbolic of Israel’s current exile and future redemption.

So, how do we piece this all together? What is the proper thing to do with a bird’s nest? On the one hand, we do not want to be needlessly cruel to a living creature, nor do we want to eat the eggs or chicks anyway. On the other hand, there really is something mystical about arousing God’s compassion and hastening the Redemption. It is important to remember that the compassion is aroused specifically when the mother bird flies away in distress. There is no reason why she cannot return shortly after, and be happily reunited with her chicks. The Mishnah confirms that there is no necessity to take away the young, and one has still fulfilled the mitzvah if the mother returns to her children (Chullin 12:3). In fact, based on the mystical Shekhinah symbolism above, that would be the ideal way to go! Let the souls of Israel be reunited with the Divine Presence. That’s the whole point after all, as we hope for the exile to end and the Temple to be rebuilt.

With that in mind, perhaps we can propose the following: if happening upon a nest, you may get just close enough to cause the mother bird to fly away, but not so close that it will cause any damage, or prevent the mother bird from returning.* Based on careful consideration of all the sources, I believe this is enough to fulfil the mitzvah, and simultaneously fulfil the mitzvah of emulating God’s compassion (#8), as well as triggering the arousal of divine mercy as described by the Zohar, and also be at peace with nature in general.

On an halakhic note, shiluach haken should ideally be done when happening upon a nest on the way, as the Torah states, and not on one’s property. If the nest is on your property, then you may actually be considered its rightful owner. However, some halakhic authorities state that as long as you never intended to own it, it isn’t yours and, either way, you may declare the bird’s nest on your property to be hefker, and then you can indeed fulfill the mitzvah of shiluach haken. Finally, keep in mind that the mitzvah can only be fulfilled with a kosher, non-domesticated bird species (Chullin 12:1-2).

May we all merit to witness the Final Redemption soon!

‘Going Up To The Third Temple’ by Ofer Yom Tov

*Every year, birds set up a nest outside my house, just above the garage door, on an eavestrough. Every time I walk out of the house, the mother bird flies off and sits on a nearby tree branch until I leave, and then she returns to her chicks. The kids love to watch the chicks grow, and eventually fly off in peace. Chullin 12:3 states that one can send away the same mother bird multiple times, since the Torah says repetitively shaleach teshalach. I like to think that each time I walk out the door, causing the mother bird to fly off for a moment, it sparks a little bit of that divine compassion Above. And each time she returns to her nest, we come one step closer to our own imminent return as well…