On Coercion and Will (Column 758)

With God's help

Last Sabbath I spoke in the synagogue about the borrowing of silver and gold vessels from Egypt, and an interesting point occurred to me regarding the relationship between coercion and will, which may have implications for quite a few topics. Here it is before you.

“and they let them have”

In Parashat Bo, God instructs Moses (11:2–3):

“Speak, please, in the ears of the people, and let each man ask of his neighbor, and each woman of her neighbor, articles of silver and articles of gold.” And the Lord gave the people favor in the eyes of the Egyptians; moreover, the man Moses was very great in the land of Egypt, in the eyes of Pharaoh’s servants and in the eyes of the people.

God informs Moses that the people are to ask the Egyptians to lend them various vessels, and promises him that He will give the people favor in the eyes of the Egyptians, so they will comply with the request.[1]

At the end of chapter 12 (35–36), the actual execution is described:

And the children of Israel did according to the word of Moses, and they asked from the Egyptians articles of silver, articles of gold, and garments. And the Lord gave the people favor in the eyes of the Egyptians, and they let them have them; and they despoiled the Egyptians.

On the word “and they let them have”, Rashi comments there:

And they let them have—this includes even things they had not asked for, which they gave them. You ask for one thing; take two and go:

The Egyptians gave Israel more than they asked for. How does Rashi derive this from the verse? Shiftei Chachamim explains it as follows:

From the fact that at first it is written, “and they shall ask from the Egyptians,” etc., and afterward it is written, “and the Lord gave the people favor,” etc.—that is, He gave them favor in their eyes and they lent to them—why then was it still necessary to write further, “and they let them have”? Rather, this comes to include even more, etc.:

The word “and they let them have” is superfluous, and from this Rashi infers that they lent them more than they had asked for.

Now, in the Talmud in Berakhot 9b we find:

And they let them have. Rabbi Ami said: This teaches that they let them have them against their will. Some say: against the will of the Egyptians; and some say: against the will of the Israelites. The one who says against the will of the Egyptians cites the verse, “and the houses shall divide the spoil”; and the one who says against the will of the Israelites says: because of the burden.

The Talmud understands the word “and they let them have” as describing lending by force, against someone's will. Perhaps this joins what Rashi explained, that Israel received more than it asked for, and this was given to them against their will. That, of course, works according to the view that “against their will” refers to Israel, because of the burden—they did not want to take too much, since they foresaw how hard it would be to carry all this on their journey through the wilderness. The interesting question is what the view that applies it to the Egyptians would say. The verses describe God as giving the people favor in their eyes, so they gave willingly, and even more than was asked. Where, then, is the coercion of the Egyptians in giving?

Hypnosis as Consent

In my responsum here I explained the matter as follows. If the Egyptians themselves hate Israel, and God performs a mental manipulation on them and causes them to like Israel to the point that they give them gifts at their request, and even beyond what was requested, this is still considered a situation in which the Egyptians do not want to give. God coerced them into it, but they did not give voluntarily, despite their feeling as though this were being done of their own free will. This is a sympathetic form of coercion—not a gun to the head and not physical force—but control over the mind is also coercion, since what I experience as my will is not my original and authentic will. In that responsum I connected this to someone who, inwardly, does not believe something, but is forced to believe it by threats that otherwise he will be considered a “heretic.” I argued that such a person is a heretic and does not believe. And note this carefully: I am not speaking about a person who does not believe and merely declares something outwardly. I am speaking about someone who, because of his religious education, sincerely thinks that he believes (for he does not want to be a heretic), but inwardly, were it not for those threats, he would not believe. I argued that such a person is not a believer, but someone coerced against his will to “believe.”

“They hanged him and he sold”

These remarks seemingly clash with the Talmud in Bava Batra 47b–48a. The Talmud there discusses someone who was forced to sell, and rules that even in such a case the sale is valid:

Rav Huna said: If they hanged him and he sold, the sale is valid. What is the reason? Whenever a person sells, were it not for some pressure, he would not sell; and nevertheless his sale is valid.

Rashbam and the other commentators explain that this refers to a person whom they forced to sell (they hung him from a tree or beat him), and as a result he accepted the money—hence “They hanged him and he gave” is not a gift, because there no money was received—and said “I am willing”. Rav Huna argues that such a case is no different from an ordinary sale. Anyone who sells household goods (as distinct from a shopkeeper selling merchandise) does so because of pressures, usually because he needs the money. Yet no one distinguishes between the cases or questions the validity of such a sale. If so, even coercion in which the buyer or someone else forces him to sell is no different from the situation in an ordinary sale.

One might have distinguished and said that there is a difference between a situation in which a person has no option not to comply—an offer he cannot refuse—in which case this is not considered voluntary, and a situation in which the pressures do not force the person to sell but merely create a consideration that leads him to decide to sell. In “They hanged him and he sold” the threat leaves him no possibility of refusal (assuming the threat is unto death), and therefore the sale should not take effect. But when he sells his household goods, he is not obligated to sell. He has a consideration because of which he decides to sell, but another option existed. Therefore Rav Huna's inference is not necessary. It seems, however, that Rav Huna does not take this distinction into account, because even if a person sells his household goods in a situation where he has been reduced to a crust of bread and has nothing to eat—where there too the threat leaves him no alternative—the sale will still be valid. That means that the existence of another option is not the relevant distinction.

What we learn from someone selling his household goods can be interpreted in two ways: 1. The sale takes effect despite the absence of settled intention (as seems, for example, from Rashbam's wording here). 2. Even in such a situation this is considered settled intention, and therefore the sale takes effect.

The Talmud then asks:

But perhaps coercion arising from oneself is different from coercion by others!

That is, perhaps the sale takes effect only where there truly was settled intention, and that happens only if the person himself decides to sell because of his own situation. But if someone else coerces him, there is no settled intention here, and the sale does not take effect. The Talmud here assumes that the sale takes effect only if there was settled intention, contrary to possibility 1 in understanding the previous stage. In any case, either way, it seems that at least at this stage all agree that the Talmud holds that the sale takes effect because there is settled intention, like possibility 2.

The Talmud continues the objection and brings sources:

Rather, as it was taught in a baraita: “He shall offer it”—this teaches that they compel him. One might think: against his will? Therefore Scripture says: “of his own will.” How so? They compel him until he says, “I am willing.” But perhaps there it is different, because he wants atonement! Rather, from the latter clause: And so too you say regarding bills of divorce for women: they compel him until he says, “I am willing.” But perhaps there it is different, because it is a commandment to obey the words of the Sages!

They wanted to bring proof from a bill of divorce and from a sacrifice, since in both coercion is effective when he says “I am willing”. But the proof is rejected because in both cases there is a reason why the matter takes effect even under coercion: in the case of a sacrifice, because we assume he wants atonement, and in the case of a divorce, because we assume he wants to heed the words of the Sages (see at the end of this column a discussion of coercion regarding commandments in general). In any case, only there does the matter take effect because there is settled intention. But in our case there is no settled intention, and if Rav Huna says the sale is valid, that means either that the sale takes effect even without settled intention, or that here too there is settled intention. Either way, there is no way to learn it from divorce and sacrifices.

Finally, the Talmud concludes:

Rather, it is a logical inference: because of his coercion, he resolves to transfer ownership…

There is a logical argument (one that has no proof from those two cases) that even if he assents under coercion, there is settled intention here. That is, in the conclusion, the sale takes effect because in such a situation there is settled intention (like possibility 2, and not despite the absence of settled intention, as in possibility 1). In the final analysis, this is a logic without direct proof: that a person makes up his mind to transfer ownership because of the coercion.[2] From here it follows that even an act done under coercion is considered a voluntary act.

The Talmud there continues and tries to qualify this law:

Rava said: The Jewish law is that if they hanged him and he sold, the sale is valid. And we said this only of an unspecified field; but of this particular field, no. And even regarding this particular field, we said so only when he did not count out the money; but if he counted out the money, no. And we said this only when he had no way to evade it; but if he had a way to evade it, no.

Rava argues that the sale takes effect only if there are indications that he truly made up his mind to sell (again, the assumption is that the sale can take effect only if there is settled intention, like possibility 2).

But the Talmud rejects these reservations and concludes:

And the Jewish law is: in all these cases where he sold, the sale is valid, even in the case of this particular field, for a woman is comparable to this particular field. And Ameimar said: If they hanged him and he betrothed, the betrothal is valid. Mar bar Rav Ashi said: In the case of a woman, certainly the betrothal is not valid. He acted improperly; therefore the Rabbis acted improperly toward him and annulled his betrothal…

A sale under coercion takes effect without reservations. The Talmud's proof is from the betrothal of a woman, where those limitations are not met and yet the betrothal takes effect. Admittedly, in practice the Sages annulled the betrothal because he acted improperly, but that is only an annulment that is not part of the basic law. As a matter of basic law, “They hanged him and he betrothed” is effective.

So too Maimonides rules in the Laws of Sale, chapter 10 law 1 (see also Shulchan Arukh Choshen Mishpat 205:1):

One who was coerced until he sold and received the sale price—even if they hanged him until he sold, his sale is valid, whether movable property or land, because under the pressure of his coercion he fully resolves to transfer ownership. Even though he did not receive the money in the presence of witnesses, therefore if he delivered a protest before selling, and said to two witnesses, “Know that this sale of this particular item or this particular field to so-and-so is because I am under coercion,” then the sale is void. Even if the buyer has held it for many years, it is taken from him and the money is returned.

He is careful to say that the sale takes effect because he settles his mind and transfers ownership, as in the conclusion of the passage. Therefore, if he lodges a formal protest before the sale, this really does nullify the sale, because it proves that he did not truly resolve in his mind.

In conclusion, Rav Huna's explanation appears to apply to these cases of coercion as well. That is, he equates the sale of household goods with the sale of merchandise in a store, and in both there is settled intention, since a sale is always due to circumstances, and coercion too is only a change in circumstances. A person's judgment is what he thinks in light of all the circumstances around him (which usually are not in his control), and as long as the act is done through his own deliberation, it is considered an act done knowingly.

A Note on Situations in Which There Is Both Coercion and Will

We saw that according to the practical law, when a person is forced to sell, he nevertheless settles his mind and transfers ownership; that is, he does will the sale (taking the circumstances into account). There is room to discuss the matter even on the assumption that he does settle his mind and transfer ownership, for even if we treat this as a situation in which there is will, there is also coercion here at the same time. This raises the question of coercion and will. If a person is forced to do something that he himself wants to do, there is still room to view this as coercion, since in the end he had no option not to do it. But if that is the law, then “They hanged him and he sold” should not take effect even if we regard him as someone who wants to sell, since his will is accompanied by coercion.

The halakhic decisors discussed such situations, in which a person does something under coercion but would have done it even without the coercion, because he wants to do it. The accepted ruling is that when coercion and will coexist, the law follows the will (see, for example, Hafla'ah, Ketubot 2b; see also Encyclopedia Talmudit, entry “Ones [Compulsion],” chapter 10). Therefore the difficulty from “They hanged him and he sold” does not arise. Their proof is from the fact that in the case of a woman who was raped under coercion and whose end was willing, we needed to exempt her only on the ground that “his impulse coerced him”, but if there had been full willingness, the coercion would not exempt her (see Hafla'ah there). Another proof is from the law of a man who was coerced into relations with a forbidden woman, who is liable because “An erection occurs only with conscious intent”, even though he is nevertheless also coerced. However, Chelkat Yoav adds that even those who exempt there do so because they hold that the will itself came only because he was being coerced; had the coercion been removed, he would not have transgressed. But if he would have acted willingly even without the coercion, he would be liable even according to them. This comment is difficult in light of what we said here, for in our case of “They hanged him and he sold” it is the coercion that generated the will, and yet it is treated as will. Admittedly, Chelkat Yoav explains this according to a view not accepted in practice, but on his account it follows that according to that view “They hanged him and he sold” is not a valid sale, and there is no place for this in the Talmudic passage we saw. So his view still requires further consideration.

Let us now return to the Talmud in Berakhot.

The Difficulty

We saw above that when God changes the Egyptians' minds so that they come to like Israel, one of the views in the Talmud there considers this coercion (against the Egyptians' will). It seems that the assumption of this view is that if a person is coerced and wants the thing only because of his coercion, that does not count as will. How is this different from “They hanged him and he sold”? There we see that if a person is coerced into selling, this is considered to have been his decision.

To resolve this difficulty we must resort to the mechanisms of human choice, that is, to the definition of the libertarian view of free will. I have dealt with this more than once (see this article, in columns 539 and 709, and elsewhere), so I will resort to it here only briefly.

The Libertarian Picture in a Nutshell

Determinism is the view that sees everything that occurs in the world as the result of a necessitating cause. That is, everything that happens had to happen and could not have failed to happen. In the inanimate world this is the prevailing view (I am setting quantum theory aside for the moment, since it would not change the principled discussion), but regarding human beings this picture is disputed. Determinists hold that human beings are no exception; that is, all our actions are the result of the circumstances in which we find ourselves, and the result is forced upon us. Libertarians, by contrast, hold that human beings have free will. Even given all the circumstances acting upon him, a person still has the possibility of choosing among different options.

People often raise arguments against libertarianism on the basis of phenomena of genetic or environmental influence. One can clearly see the effects of education on outcomes (religious people emerge from religious education and secular people from secular education). So too regarding findings about genes responsible for stinginess, religious belief, cowardice, extravagance, and so on: these are taken as proof that the person does not choose freely, but is subject to the influences of his nature and/or his environment. The very posing of these two alternatives—nature or nurture—already assumes determinism. The assumption is that a person acts only on the basis of influences, and those influences can be either the environment or his inner nature (brain and genetics). Hence the dilemma arises as to which of the two is stronger, in each case and in general. But in the libertarian picture there is a third option: after nature and environment, there is also our will, which chooses freely among alternatives, and we do not necessarily act at the direction of nature and environment.

Many of the claims against libertarianism assume a straw man and attack it. They assume that, according to the libertarian, a person acts in a vacuum and is subject to no external influence (and perhaps no internal one either). Against that position, findings from brain science and genetics are adduced to show that such influences do exist. But sober libertarianism does not see the person as acting in a vacuum, and it too understands that various influences affect our behavior and our thoughts. So what is the difference between it and determinism? According to the determinist, environment and nature determine our behavior and thoughts, whereas according to the libertarian they do not determine them but only influence them. That is, they create biases in certain directions, but a person can choose to overcome those biases and act or think differently. Statistically there will apparently be more people who move in the direction toward which they are inclined, and in that sense there are influences, but a person can choose to act against his natural biases, and that is the meaning of our free will.

I have often suggested describing this picture using a model of a topographical contour within which the person acts. Think of such a contour on which a small ball rolls or along which water flows. For them, the contour determines where they will go and how quickly. But if a person walks upon that same topographical contour, he can choose to climb a mountain rather than descend into the valley, despite the fact that a person is a physical creature and physical forces act on him as well. If we take all the influences, internal and external, that act upon a person as a topographical contour, then my claim is that all these do not describe the person himself, but rather the forces acting upon him and trying to move him here or there. But after all those forces, the combination of nature and nurture, there is choice, and the person can decide whether he acts with those influences or against them (placing a veto on them).

Back to the Difficulty

In light of the libertarian picture I have described here, we have seen that even those who advocate free choice agree that circumstances influence the person. We can now see that there are two ways to influence a person's behavior: 1. to change his environment (the topographical contour around him), thereby influencing his desires and behavior; 2. to change the person's very will itself. Usually, when we try to change a person's thought or behavior, we do so by changing the circumstances in which he operates. For example, we threaten him, beat him, imprison him, try to persuade him, and the like. Such changes of circumstances alter the topographical contour within which we act, and thus influence what the person thinks or does.

As human beings, it is usually hard for us to change a person's very will, because that is not in our power (see in detail my series of columns on freedom and liberty, 126 – 131). We can primarily change the circumstances in which the person acts. But God can, of course, do both things: change the circumstances and thereby influence our behavior, and also change our very will itself (perform a manipulation on our minds). We can now return to the passages above.

The Talmud in Bava Batra regarding “They hanged him and he sold” speaks about changing the circumstances within which a person acts. I threaten him and change the circumstances (the topographical contour), and therefore also his considerations, and through all this I influence his decisions and behavior. A person under threat will incline to sell, of course, more than the same person would have if he were not under threat. In this case, the conclusion of the Talmud is that the act is done of the person's own will, since a person's will always depends on circumstances not in his control (as in selling household goods). Therefore Rav Huna assumes that the threat is not essentially different from any other normative situation. The mere fact that I live next to him, or that he sees me, can change his deliberations. By contrast, when God gives the people favor in the eyes of the Egyptians, He changes the Egyptians' consciousness; that is, He changes their very will, without changing anything in the circumstances in which they act. After all, nothing in their environment changed, yet suddenly they fell in love with Israel. Such a change is considered coercion and a decision taken against their will. This was not their decision at all, but God's. That is the distinction between the passage of “They hanged him and he sold”, where the coercion does not prevent us from seeing the act as done of the person's own will, and the situation in Egypt, where we saw that this is considered against the Egyptians' will.

The Dispute over the Hardening of Pharaoh's Heart: The Degree of Certainty

There is another point that distinguishes between the two types of influence described above. The difference between the two mechanisms is not only the question of where the influence occurs (in the will itself or in the topographical environment within which the person acts), but also the degree of influence. When God intervenes in a person's will and changes it, the result is certain. There is no chance at all that what he originally wanted will happen, because his will itself has changed. By contrast, when one changes a person's environment but his will remains as it was, the intervention indeed reduces the chance that he will do what he originally wanted, but there is still a chance that it will happen. Now the action he wants requires more effort from him (more “willpower”; see columns 172–173 on weakness of will), but he can still do it.

As is known, the commentators disagree regarding the hardening of Pharaoh's heart (or the strengthening of his heart). Some explained that God deprived him of choice. Others explained that He merely made it harder for him to choose the good. It seems to me that the principled difference between these possibilities is similar to the distinction I made here. Those who hold the first view think that God intervened and changed Pharaoh's will, and here the result is deterministic and not Pharaoh's decision. Those of the second view explain that God merely changed the weights of the different factors, that is, Pharaoh's topographical contour, and thus made it harder for him to make a positive decision. But the decision was still his, and he could have decided otherwise.

Similar Distinctions: Extortion and Enticement

In the past (see, for example, column 114 and elsewhere) I pointed out Robert Nozick's distinction between extortion and enticement. Briefly, Nozick wonders why enticement is a permitted act while extortion is forbidden. Enticement is an offer to give someone consideration if he does something—for example, I offer you 100 shekels if you plow my field. By contrast, extortion is an offer to take consideration from someone if he does something—for example, I tell you to plow my field, and if you do not, I will take 100 shekels from you. Ostensibly these are completely equivalent offers. In both cases, you place before the person two options, in one of which he gains 100 shekels more (or loses 100 shekels less) than in the other. The only difference is whether one looks at the side of doing or of not doing. So why is enticement permitted and extortion forbidden?

I explained that there is nevertheless a difference between the situations. In an offer of enticement, both alternatives are “legitimate,” since I am permitted to give you 100 shekels and I am also permitted not to give them to you. By contrast, in extortion there is one “legitimate” side—not giving you 100 shekels—and one “illegitimate” side—taking your 100 shekels from you. Therefore extortion is forbidden. Still, one can argue that you can perform the action and then everything will be “legitimate,” since in that case I simply will not take your 100 shekels. So what if I threatened to take 100 shekels from you? In the end, that is not what actually happened.

It seems that in the background here lies the question of threat. In a situation of extortion, even if I decide to do the act, it happened because of the threat about what would happen to me if I decided otherwise. This is not a free decision. Moreover, if I did not take the threat seriously (because he would not carry out the “illegitimate” option), I would not yield to the threat. And why, in enticement, is this a free decision? There too, my decision to do the act stems from the threat that if I do not do it, I will not receive 100 shekels. Is that there a free decision?

It seems we have returned by the back door to our distinction. There is an assumption here that in extortion we are not dealing only with a change in the circumstances that I must take into account, while in the end the decision is entirely mine. In extortion you enter my domain and threaten to take 100 shekels. That is, you change “me,” not only my environment. In such a situation the different decision is not because of the circumstances but because the decision-maker himself is different. The threatener has intervened in the territory of the decision-maker himself and has not remained outside it. By contrast, in enticement there is no entry at all into the domain of the person being enticed. Either I will give him 100 shekels or I will not, but in either case these are actions done in my territory. Of course, this is not exactly the same thing, since we are not really speaking here about changing the will itself. It is indeed a change in my circumstances and considerations. But as I explained, human beings cannot change the will itself, and therefore there are situations in which we view a change of circumstances as though there had been a change of will and a deprivation of the person's freedom of choice and judgment. If you enter his territory, that is treated as an intervention in his will and not merely as a change in the environment that indirectly affects his judgment.

Implication: A Threat to Life

As is well known, in Jewish law—as also in life and in various legal systems—a threat to life is a paradigmatic case of coercion. Ostensibly, there too I am only changing the person's circumstances, and yet this is not considered a voluntary act. This certainly fits what we saw regarding extortion. We saw there that there are extreme changes of circumstances that are treated as changing the will itself. A threat to life is certainly worse than a threat to take money (see Ketubot 19, “We were coerced because of money” as opposed to “because of mortal danger”), which was the case we were discussing. What is not clear is how all this fits with the law of “They hanged him and he sold”. There we saw that an act under coercion is indeed considered a voluntary act, and a beating is certainly an intrusion into the threatened person's domain. In that sense it resembles extortion rather than enticement.

Perhaps the root of the difference is that in “They hanged him and he sold” money is received. This is not mere violent robbery, but a purchase under threat. Therefore, in the bottom line, the person assents because he received adequate consideration, even if initially it was not to his liking. In such a situation his considerations are reasonable in the terms of a reasonable person (a reasonable person would assent to sell even without a threat), and such a threat is not extortion but enticement (though improper and unworthy. And there is probably even a Torah prohibition of “do not covet” here.[3] Our discussion here concerns only the validity of the sale itself).

And yet we find an important distinction in this spirit even regarding threats to life. As is well known, the later authorities discussed whether an act done under coercion is considered an act of the coerced person, only that he is exempt for it, or whether it is not his act at all. For example, Kovetz Shiurim on Ketubot §5 discusses the law that fulfilling a condition under coercion is not considered fulfillment of the condition. He wonders why this is so, and why it can be learned from the exemption from punishment of a person coerced into transgressing:

As for the essence of the matter—that from the verse “But to the young woman you shall do nothing” we derive that fulfillment of a condition under coercion is ineffective—this requires explanation. For the verse is written regarding punishments, that one does not punish a coerced person; what does that have to do with this case, where the validity of the divorce is not a punishment for the husband? It must be explained as was written in the responsa Hemdat Shlomo, section 38, that from this verse we derive that an act performed under coercion is not attributed to the one performing it, but is considered as though it happened by itself. He brought proof from the fact that an ox worshipped under coercion is not considered worshipped and is fit for the altar. This is his view, and he derives it from this verse, “But to the young woman you shall do nothing.” (A parallel to this is what the Rosh wrote in chapter 2 of Hullin, that if one dropped the knife without any intention and slaughtered, this is not considered human agency. Nevertheless, this still requires investigation, for if one was coerced and slaughtered, it is certainly called human agency, since he knew at the time of the act that he was acting; we do not say that since they coerced him to slaughter, it is as though it was slaughtered by itself.) But the point itself is still difficult: from where do we derive from this verse that the act is not attributed to the one performing it? Perhaps exemption for coercion is only because he was not at fault, and one should punish only where one transgresses intentionally and willingly.

He cites from Chemdat Shlomo that coercion is not considered the person's act. Therefore one can learn from the exemption of a coerced person from punishment the law that fulfilling a condition under coercion does not count as fulfilling the condition. If it is not his act, then not only is he exempt from punishment for a transgression he committed, but even if he performed that act in fulfillment of the condition, it is not his act and therefore the condition was not fulfilled. He does wonder, however, what compels us to understand the exemption of coercion in Jewish law specifically in this way—that is, to assume that the basis of the exemption is that the act is not considered his act. Why not see it as an exemption from punishment because of lack of culpability? (See also Tzafnat Paneach, Laws of Leaven and Matzah 3:8, at the end.) But it seems that in practice this is how the Talmud understands it.

In the past I saw later authorities (I think it was in Kli Chemdah, see Ki Tetze §11) who distinguished between coercion that is not in my hands and coercion by threat that remains in my hands. The first kind of coercion is a situation in which another person performed the act through me (usually I also could not refrain from doing the act), and there it really is not my act. For example, if someone takes me and hurls me into someone else and thereby damages him, that is not my act. But if someone threatens me with a gun so that I injure someone else, there it is my act, and I only have an exemption from punishment because of lack of culpability. It is an act that I did, not he. He merely caused me to do it.

In column 570 I brought another example of this. The rule in Jewish law is that a person under threat may not kill someone else in order to save himself, because his blood is no redder than that other person's blood. But Tosafot (Sanhedrin 74b, s.v. But what of Esther; Pesachim 25b, s.v. even a young woman) write that a person who falls from a rooftop and is about to hit an infant, kill him, and thereby save himself, is not obligated to turn himself aside and die in order to save the infant. Why not? Ostensibly the rule is that one must be killed rather than transgress murder. The reason is that the infant's blood too is no redder than that of the falling man; that is, the infant too cannot demand of him that he die so that the infant may be saved. The difference can be explained as follows: when he falls from the rooftop onto the infant, this is not his act, and therefore he is not considered a murderer. In such a situation there is no obligation to divert himself, because he is not preventing his own act of murder. By contrast, one who murders because of a threat is indeed considered a murderer, because this is his act (even if done under threat), and therefore he may not do it. Notice that in the case of the falling man he can in fact divert himself to the side; that is, the result is not forced upon him. There the situation is one in which the act is not his because the condition itself (the very fall) is unavoidable, even though the problematic result (the infant's death) can indeed be prevented.

The same distinction is made regarding a person who causes damage, who according to Jewish law is liable even under coercion, and according to some opinions even under complete coercion (see Shulchan Arukh Choshen Mishpat 378:1, and its dispute with the Rema there). Yet in my humble opinion it is quite clear that if someone uses me in the manner I described above (wielding me like a stick and striking someone else with my body), they certainly would not hold me liable even according to the views that impose liability under complete coercion. Even if a wind carries me off against my will, where there is no other person whom one can charge for the damage, there is still room for the logic that this is not my act and I should not be liable (unless the state I was in when the wind pushed me was due to my own fault. Still, see Shulchan Arukh there §2 and the commentaries). That means that although a person who causes damage is liable under coercion, this is only in a situation where the act is considered his act. In situations of coercion where the act is not considered his act at all, he is not liable even according to the stringent views.

Another Implication: The Punishment of One Who Transgressed Rather Than Being Killed

Maimonides, in chapter 5 of the Laws of the Foundations of the Torah, deals with the laws of sanctifying God's name, and in that context he discusses situations of coercion and the obligation to give up one's life. He explains that all prohibitions are set aside by danger to life except the three severe ones, and in times of persecution one gives up one's life for everything.

In law 4 there he writes:

Anyone concerning whom it was said, “Transgress and do not be killed,” but who was killed and did not transgress, is liable for his own life. And anyone concerning whom it was said, “Be killed and do not transgress,” and who was killed and did not transgress, has sanctified the Divine Name. And if this took place before ten Jews, then he sanctified the Divine Name publicly, like Daniel, Hananiah, Mishael, and Azariah, and Rabbi Akiva and his colleagues. These are those slain by the kingdom, than whom there is no higher rank. Concerning them it is said, “For Your sake we are killed all the day; we are accounted as sheep for the slaughter,” and concerning them it is said, “Gather My pious ones to Me, those who made a covenant with Me through sacrifice.” And anyone concerning whom it was said, “Be killed and do not transgress,” but who transgressed and was not killed, has desecrated the Divine Name. And if this took place before ten Jews, then he desecrated the Divine Name publicly, and nullified a positive commandment, which is sanctification of the Divine Name, and transgressed a prohibition, which is desecration of the Divine Name. Nevertheless, because he transgressed under coercion, he is not flogged, and needless to say he is not put to death by a religious court, even if he killed under coercion; for flogging and execution are administered only to one who transgresses willingly, and with witnesses and prior warning, as it is said regarding one who gives of his offspring to Molech, “I will set My face against that man”—from the oral tradition they learned: that man, and not one who is coerced, nor one who acts unintentionally, nor one who errs. And if idolatry, which is more severe than all, when worshipped under coercion does not incur karet, much less the death penalty of a religious court, then all the more so for the other commandments stated in the Torah. And regarding forbidden sexual relations it says, “But to the young woman you shall do nothing.” But if one can save himself and flee from under the hand of the wicked king and does not do so, behold he is like a dog returning to its vomit. He is called an intentional idol worshipper, is cut off from the World to Come, and descends to the lowest level of Gehenna.

His view is that if a person transgressed because of coercion and was not killed, he has profaned God's name. And if he was killed over a transgression for which he should not have been killed, he “makes himself liable,” but he is not put to death, since he was still coerced. From the context there it is clear that the coercion under discussion is of both kinds, including the kind under threat in which the person's act is considered his act. Still, even in such situations there is an exemption of coercion.

Some medieval authorities (the Tosafists) disagreed with him on this, and they hold that if he transgressed rather than being killed when he should have allowed himself to be killed, he is liable to death like any other offender. They do not regard him as coerced. This itself already shows us that such an act is considered his act. If so, perhaps Maimonides too agrees with this, except that according to Maimonides he nevertheless has an exemption from punishment, while according to Tosafot he does not. There is no doubt that even according to Tosafot, if a person committed the transgression against his will in the first sense—that it was not in his control at all, but rather he was a hammer in someone else's hand—he would be exempt. That is not his act at all.

Another Implication: Coercion of Illness in Maimonides

Now, in law 6 there, Maimonides writes:

And in the same way that they spoke regarding coercion, so they spoke regarding illness. How so? If someone became ill and was close to death, and the physicians said that his cure depends on some matter involving prohibitions of the Torah, then it is done, and one is healed by means of all prohibitions of the Torah in a case of danger to life, except for idolatry, forbidden sexual relations, and bloodshed, for even in a case of danger to life one may not be healed through them. And if he transgressed and was healed, the religious court punishes him with the punishment appropriate to him.

He begins by saying that illness is coercion like any other coercion. At first glance this is obvious, and so the question arises why he needs to say it at all. It seems that Maimonides entertained the possibility that illness would not be ordinary coercion, and this is what he comes to reject. Why might one have thought that coercion because of illness would differ from any other coercion? Before returning to this, one further remark.

What arouses the interest of the later authorities in this law is the closing sentence, which is phrased rather ambiguously: if he transgressed and was healed through one of the three severe transgressions, the court punishes him with “the punishment appropriate to him”, “the punishment fitting for him.” What does this mean? It could be understood in two ways:

1. They give him the death penalty fixed in Jewish law for these offenses (unlike what we saw above in law 4, where if he transgresses he is not punished). This means that coercion because of illness differs from every other coercion; that is, it was not only an initial possibility that Maimonides rejected, but his actual view even in the conclusion. The law of illness is like any other coercion in that one may not transgress the three severe prohibitions because of illness, but it is even more stringent. If he transgresses because of illness, he is punished, unlike one who transgresses because of external coercion.
2. He does not receive the fixed punishment for those offenses, since he is coerced (as we saw in law 4), and Maimonides here is speaking of another punishment that is not part of the formal law. According to this, coercion because of illness ostensibly does not differ from any other coercion. And yet here Maimonides troubles to add that the court gives him an extra-legal punishment, something he did not write in law 4 regarding the other kinds of coercion. If so, even according to this possibility it seems that there is a difference between coercion because of illness and the other kinds of coercion.

It seems, then, that both in the initial possibility rejected at the start of Maimonides' words and in the conclusion, in Maimonides' view coercion because of illness differs from every other external coercion (such as a threat). Note that the difference is always in the stringent direction; that is, coercion because of illness counts as less coercion than any other external threat. The question is why.

Quite a few later authorities discussed these remarks of Maimonides, and the ground has already been well trodden. One common explanation (see, for example, Or Sameach ad loc.) is that illness is nothing more than one of the person's ordinary considerations. A person acts in order to obtain money, to enjoy himself, to acquire a field or a house that he wants, and so on, and he is not considered coerced. All these are circumstances that led him to decide to do what he did. A person's decisions are always influenced by different circumstances around him (just like the explanation we saw above in “They hanged him and he sold”). So how is the goal of curing illness different from any other goal he may have? If a person did a forbidden act in order to heal himself, that is no different from doing that act in order to enjoy himself. Note that this explanation is very similar to what we saw regarding “They hanged him and he sold”: there too we spoke of the threat creating circumstances that lead me to decide, but this is not essentially different from any other act of sale that I decide upon for various considerations dependent on the circumstances in which I act.

But now the opposite question arises: why is doing that same act in order to save oneself from an external threat (a man with a gun) different? Why is he there indeed considered coerced (as we see in law 4)? Here too these are the circumstances in which I act, and my decision is based on maneuvering within those circumstances. Especially since we saw above that even if a person, or God, changes the circumstances in which I act, that is only a change of circumstances. The decision and the action I perform in those new circumstances are my decisions and actions. I argued that this is not similar to changing my will itself. That is, if I act under an external threat, then my consideration in doing the act is based not only on my own considerations but also on external pressure. But if I act under the pressure of illness, that is an act no different from any other consideration that I make in accordance with the circumstances in which I myself operate, and this is my own consideration, based on my situation within my own territory; therefore, in such a situation the act is my act.

This is somewhat similar to the words of Tosafot s.v. threw, Bava Kamma 17b (the Tosafot of Purim. See column 205). Tosafot states that if a person throws a vessel from a rooftop, it is already considered broken. But if a person shoots an arrow at the vessel, it is considered broken only from the moment that it actually breaks (and therefore if someone else got there first and broke it before the arrow struck, the breaker must pay). The difference is that in the case of the arrow, the breakage is still not embedded within the vessel itself. This is an external threat, and therefore the vessel as such is still considered whole. It breaks only at the moment the arrow hits. By contrast, when the vessel is thrown from the roof, the breakage is already embedded within it (it is itself already in the fall at the end of which it will break), and therefore it is considered broken from the very first moment. Similarly, in threats of a gun the person is still considered to be acting by his own power (he is still alive). But in a disease nesting within him, the end is already present within him. The person's own condition is already different now. The disease is part of the person himself, and the gun is an external threat.

Notice that this yields something seemingly strange. After all, illness and threat are both external threats. Both change our environment (the topographical contour) and not the will itself (as God did to the Egyptians). What emerges here is that with external threats (changes of environment), the more internal they are, the less they count as coercion. The external threat of illness is more internal than the external threat of a gun, and therefore is not full coercion. And yet, changing the will itself, which is the most internal change one can imagine, actually counts as the strongest coercion of all (as we saw above from the Talmud in Berakhot). This is not a change of circumstances but of the person himself. This is not a contradiction, of course, but an observation worth noting.

A Note on Coercion in Commandments

Many ask what sense there is in coercing people regarding commandments, since if a person performs the commandment by force, this is not a commandment that he performs. It is not his act. Beyond the formal definition (whether this is his act or not), it really seems that such an act has no religious value. Just as coercion in a transgression has no negative value, so a commandment under coercion has no positive value. So what is the point of coercing a person to observe commandments?

From the passage of “They hanged him and he sold” it would seemingly follow that such an act does have value. We saw there that even if there was coercion, the sale takes effect as though it were done knowingly by the seller. Moreover, from the conclusion of the passage there it follows that such an act has value in all commandments, and not only in divorce or sacrifices (where the Talmud explains that there is a special motivation). For if, in the conclusion, a person who was coerced into selling is considered to be selling knowingly, despite the fact that he has no special motivation beyond the coercion, then there is no reason to think that coercion regarding commandments would not be effective even without such special motivations. Furthermore, the special motivations there are that in sacrifices he wants atonement and in divorce he wants to heed the words of the Sages. So too in every other commandment he wants to discharge his obligation. That is, with every commandment there is motivation beyond a mere coerced sale.[4]

It nevertheless seems that this conclusion should not be drawn. In the law of “They hanged him and he sold” we are dealing with the question whether the sale takes effect. In the conclusion it does take effect, because the coercion is part of his consideration in selling (and this is no different from any other consideration). But in commandments the question is not whether something takes effect, but whether such an act has religious value. In fact, an act has religious value only if two conditions are met: 1. It is done of the doer's own will. 2. It is done because of commitment to the command. When a person fulfills a commandment under coercion, the first component is present, because this counts as being of the doer's own will (as in “They hanged him and he sold”), but the second requirement is lacking. This act was not done because of the command, but because of the threat. So we do have here an act done knowingly by the doer, but it is still not a commandment. The value of a commandment exists only in an act done out of obligation to the command and in order to fulfill the command.

Therefore, in the conclusion, a commandment done under coercion has no value (unless one enters into the arguments about hidden will, etc. See column 354 and much more).

[1] Incidentally, in my understanding, beneath the vav at the beginning of the second verse (“and the Lord gave”) there should be a sheva and not a patach. It does not describe what God did, but what He was about to do.

[2] It should be noted that according to the conclusion of the Talmud, in the case of a bill of divorce and a sacrifice there is no need for the rationales that were offered in order for the matter to take effect, since in the conclusion there is a rationale that settled intention under coercion is also settled intention even in a place where those special rationales are absent. In the practical rulings, however, it is accepted among the decisors (see, for example, Maimonides, Laws of Divorce 2:20, and Sacrificial Offerings 14:16—although in the latter there is no explanation, and it may be that it takes effect even without the special rationale) that the sacrifice and the divorce are valid only because of those rationales. See Tosafot s.v. Rather, it is a logical inference, there 48a.

[3] This depends on the question whether there is a prohibition of “do not covet” when I purchased for consideration under pressure, if consent was ultimately obtained. See, for example, Wikipedia here.

[4] There is some room to discuss this, since in a sale the seller receives money, and as I noted above, this is part of the halakhic consideration for seeing him as selling knowingly.