Milking Cows on Shabbat
by R. Gidon Rothstein
[Due to calendar confusion, I neglected to post this over Pesach -ed.]
16 Nisan: R. Uzziel on Milking Cows on Shabbat
In 1926, a contagious disease broke out among the Arabs living in Israel. To prevent its spread, British authorities forbade Arab workers from entering Jewish settlements and farms. That meant no non-Jews were available to milk cows on Shabbat. Leaving cows unmilked can be a mortal danger for them; even if they survive, their milk might dry up, threatening the economic health of hundreds of people.
R. Uzziel, then Chief Rabbi of Tel Aviv, was asked what to do, and published his response in Piskei Uzziel Be-She’elot HaZman 20. The questioners’ main idea was to milk onto the ground, preserving the cows’ health and maintaining their milk, but lessening the Shabbat prohibition, since it was no longer an activity engaged for its usual purpose.
Why Is Milking Prohibited?
R. Uzziel starts with with Shabbat 95, which groups milking in a series of actions that R. Eliezer held were Biblically prohibited, whose unknowing transgression obligates a chatat, while the Sages held that those actions violated a shevut, a Rabbinical proscription.
Rashi goes against that simple reading, limiting the debate to the later actions on the list. For Rashi, everyone agreed that milking was Biblically prohibited.
Later on that folio, the Gemara says milking is a form of mefarek, which supports Rashi’s reading; he explains that it is taking food out of its cover, a toladah, a lesser version of dash, threshing (where wheat is broken out of the case hiding it). Tosafot add that this follows the view of R. Yehudah, who held—another matter of dispute—that dash applies even to items that don’t grow out of the ground.
R. Uzziel argues that we don’t accept this view of Rashi. One surprising reason he gives is that the Yerushalmi clearly held that the Sages included milking as a shevut. It’s logical, he says, that the two Talmuds agree on what the Sages thought [he doesn’t defend that claim, it’s just obvious to him that we should assume the two Talmuds agree whenever we can].
The Halachic Consensus that Milking is Prohibited Rabbinically
Shulchan Aruch didn’t address the issue directly; the only mention of milking is a paragraph that allows asking/telling a non-Jew to milk a cow on Shabbat, to prevent or ease the cow’s suffering. Economic loss is only a factor when we’re weighing asking a non-Jew to perform a Rabbinically prohibited action, which must be how Shulchan Aruch understood the source of the rule that we cannot milk cows on Shabbat.
Nor is it allowed for all Rabbinic issues. Ran noted that the Gemara prohibited asking a non-Jew to put out a fire [where there’s no fear for loss of life]. Most times we put out a fire, R. Uzziel reminds us, it’s a melachah she-einah tserichah le-gufah, an action not done for its main purpose [the Gemara’s view of extinguishing done for itself is putting out a fire to blacken a wick, to ease lighting it next time], and therefore a Rabbinic rather than Biblical prohibition. The reason, Ran said, was that it’s directly based on a Biblical prohibition. In those cases, Chazal did not allow us to ask a non-Jew to do it, either, even where great loss of money is involved.
If that’s true, Shulchan Aruch’s allowing asking a non-Jew to milk cows sees milking as essentially Rabbinic, not an extension of dash. That’s likely (R. Uzziel says) because Shulchan Aruch held, contra Rashi and Tosafot, that dash did only apply to items that grow from the ground. While Tosafot in some contexts think that the fact that animals graze means they count as giddulei karka, having grown from the ground, Shulchan Aruch here does not see it that way.
He then quickly dismisses the idea of wasting the milk, since that would only make a person patur, not liable. He wants to find a way to allow it.
The Path to Permissibility
Once we see milking as Rabbinic—as did Ramban, Ran, and others– several factors for leniency come into play. Among those are:
1) The dairy industry is vital to the economy, supporting hundreds and perhaps thousands, supplementing others’ income as well. There are also whole settlements that might be ruined were these families to suffer financial catastrophe.
2) Refraining from milking will cause suffering and sometimes death to the animals.
3) Shulchan Aruch, Orach Chaim 336;9, allowed crushing straw or grass to de-clog a gutter, to avoid flooding a house. That shows that Rabbinically prohibited Shabbat activity can be allowed to avert financial loss.
5) Gittin 8b allows telling a non-Jew to write a deed of sale on Shabbat, because reacquiring land in Israel was seen as important enough to push aside the Rabbinic prohibition.
All that, he thinks, lets us say that we can push aside this Rabbinic prohibition, too, for as long as there are no non-Jews to help with the milking.
Conditions on His Permissive Ruling
With certain added conditions. [Before I list them, note that to rely on this view of R. Uzziel’s today, we would have to satisfy all the premises that led to his ruling, and some aren’t so clear. Would a dairy farm that today supported perhaps thousands be as economically significant as it was in 1926, when that number of families was a much larger percentage of the total population? Is maintaining such farms still crucial to settling the Land, as it was back then? I am not expressing an opinion, I am highlighting the questions a posek would have to answer even if he simply wanted to apply R. Uzziel’s view in our time].
R. Uzziel’s rules for how to milk cows on Shabbat:
1) The milking must be done by a machine, or with a tool, to make it different from the rest of the week—because whenever we allow a shevut, we require a shinui, performing the act in some different way than ordinary.
2) It has to be done be-tsina, privately, a term he does not quite define. He might have meant the barn doors have to be closed, so it’s not obvious what’s going on, but he might have meant more, like taking each cow somewhere out of the way, to milk it there.
3) This is only when there’s no non-Jew available to do it.
4) The milking has to be done in small segments, each time doing only enough to ease the cows’ pain (in the second responsum, the one written on 16 Nisan, R. Uzziel clarifies that he meant four or five times a day, a bit each time, instead of once in the morning and once at night). In this way, the halachically valid goals of helping the cows and protecting Jews’ investment will be achieved, while differentiating this milking from others.
As I’ve seen more than once in his responsa, he closes by cautioning that this is not a ruling, it’s raising points for discussion. A firm conclusion would need the consensus of the great rabbis of the time.
Twelve Years Later
Mishpetei Uzziel 3 Orach Chaim 49, dated 16 Nisan 5698 (1938)—the reason we’re seeing it here– responds to someone who took issue with his ruling. He argued that weekday milking was mostly by machine, so that doing so on Shabbat would not constitute a shinui, a change from the rest of the week.
Too, he thought that studies showed that machine milking was painful, so that it would be odd to insist that the milking on Shabbat, whose purpose was to ease their pain, would have to be done by machine, which causes pain.
The Effect of Changing an Action
R. Uzziel notes that the man has contradicted himself—if most people milk by machine, it does not make sense that owners would regularly cause pain to their cows.
As for the claim that that no longer constitutes a shinui, a change from the rest of the week, R. Uzziel says that he didn’t mean this would constitue a formal shinui in the sense halachah usually means it. Rather, he recognized he was treading new ground; Jews had been milking cows for hundreds of years without anyone suggesting the leniencies he had offered.
By insisting on a machine, he was at least changing the action of milking from that which earlier generations had seen and not allowed, leaving some room to say that this version of milking had not been explicitly ruled out.
It’s also true that any action prohibited Rabbinically, when done with a deliberate focus on changing its performance—even if some people do it that way—makes it permitted. Whatever pain comes with machine milking, it’s still not as bad as the pain of not being milked at all.
Having a Child Do It
R. Uzziel’s respondent had suggested having a minor milk the cows, bringing proofs that we’re allowed to encourage minors to violate certain prohibitions. R. Uzziel disagrees. Shulchan Aruch Orach Chaim 343 prohibits giving children nonkosher food, even if prohibited Rabbinically, nor are we not allowed to let a child get used to violating Shabbat, even in de-rabbanan ways.
That’s said, he adds, of minors who have not reached the age of educability; while the Gemara says a court doesn’t stop such a child from violating halachah, it’s clear we don’t encourage it [a challenge for those who let their children be their Shabbat goy in various situations].
His correspondent had offered the example of asking a minor to bring keys to open a shul, in areas where carrying is a Rabbinic rather than Biblical prohibition. R. Uzziel objected that there, the act itself is a mitzvah; with milking, the act is being allowed for other mitzvah reasons but isn’t itself a mitzvah [that’s an important distinction, that sometimes an act that accomplishes mitzvah purposes is nevertheless not itself a mitzvah for some halachic issues].
Besides, Taz only allowed that for a child under the age of chinuch [whereas any child that can milk cows, I think R. Uzziel means, has reached educability]. Once at the age, it’s clear that a father has to stop his child from violating Shabbat, not foster it. Since all Jews are responsible for each other, that means other Jews also may not ask a child to violate Shabbat for them.
Leaving R. Uzziel with his original view, that letting the milk go to waste is not a way to solve this problem, nor is asking a child. In order to allow the necessary milking, rabbinic decisors would have to be willing to say that milking is prohibited Rabbinically, and that the economic stress and the value of settling Israel qualify that, with a shinui, we are allowed to abrogate this Rabbinic rule until the Arab workers return.