Another Look at the Duty of the Individual in a Public Role

With God’s help

Machanecha III – 5768

On the law of "Do not be intimidated by any man"

Introduction

This article discusses the duty of a judge not to yield to threats, a duty grounded in the verse "Do not be intimidated by any man." We show that according to certain views, this obligation is imposed upon him even in a situation of possible danger to life, contrary to the ordinary rules of Jewish law.

We explain this on the basis of the fact that the judge is acting here as a bearer of a public role, and if there is surrender to violence this will undermine the very foundations of the rule of law in society. The concern for a general social breakdown, even where there is no direct mortal danger, is halakhically equivalent to a situation of danger to life, and therefore it requires self-sacrifice.

From this one may offer the reader several far-reaching halakhic conclusions for consideration, both regarding the operation of police on the Sabbath in circumstances where there is no concern for danger to life, and regarding the duty to participate as a soldier in war, though not to surrender one’s life in a situation of certain danger. Of course, these remarks are not a halakhic ruling, but only a proposal for examination.

The main conclusion that emerges from our discussion is that every public office-holder is obligated not to recoil from threats, even in a situation of possible danger to life, for he is entrusted with preserving the entire social order from collapse. We show that this is rooted in Jewish law’s conception of the public as an entity different from the isolated individual.

A. The Duties of Judges

Introduction: "Do not be intimidated by any man"

In our Torah portion, Moses begins his farewell address to the people, on the threshold of the Land of Israel. In the course of his remarks he mentions the appointment of officers over thousands, hundreds, and tens, and immediately afterward he refers to the duty of judges and says the following (Deuteronomy 1:16–17):

And I charged your judges at that time, saying: Hear between your brothers and judge righteously between a man and his brother and his stranger. You shall not show favoritism in judgment; you shall hear the small like the great; do not be intimidated by any man, for the judgment is God’s. And the matter that is too difficult for you, you shall bring to me, and I will hear it.

Judges are obligated to adjudicate, and there is an additional obligation to do so justly. Certainly they may not show partiality in judgment, and they may not fear anyone when they decide the law. In this week’s article we shall focus on the obligation not to be intimidated by any man, which, at least in certain circumstances, seems at first glance not to accord with the principles of Jewish law.

These verses contain two distinct commands: not to appoint a judge who is unfit, and that a judge must not fear any man when rendering judgment. We shall focus on the second command, but as important background we will briefly consider the first as well.

The prohibition on appointing a judge who is not wise in Torah wisdom

The first commandment is prohibition no. 284 in Maimonides (no. 414 in Sefer HaChinukh):

Commandment no. 284 is that the Great Sanhedrin or the Exilarch were warned not to appoint as a judge a person who is not wise in Torah wisdom on account of other virtues he may possess, and to appoint him because of them. He is warned against this. Rather, in Torah appointments one should look only to the person’s diligence in Torah wisdom, his knowledge of its commands and prohibitions, and his conduct and firmness in the deeds fitting for this. The warning against appointing an official because of other virtues is expressed in His statement, may He be exalted: "You shall not show favoritism in judgment."

And the language of the Sifrei is: "You shall not show favoritism in judgment"—this refers to the one appointed to seat judges. That is to say, this warning is addressed to the person who appoints judges over Israel, who is warned not to appoint them for the reasons we have already mentioned. And they said: Lest you say, "So-and-so is handsome; I will seat him as a judge. So-and-so is strong; I will seat him as a judge. So-and-so is my relative; I will seat him as a judge. So-and-so is wealthy; I will seat him as a judge. So-and-so knows every language; I will seat him as a judge." The result will be that he acquits the guilty and convicts the innocent—not because he is wicked, but because he does not know. Therefore it says: "You shall not show favoritism in judgment."

Sefer HaChinukh (ibid.) adds to the parameters of this commandment the duty to make worthy appointments with respect to all positions of authority in Israel:

And included in this commandment as well, it would appear, is that anyone whom the members of the community have chosen to appoint officials over them for any matter must direct all his attention and judgment to appointing from among them those who are fit and best suited to that appointment which the community needs. And he must not be intimidated by any person into appointing someone unfit.

This extension of the command, originally stated regarding judges, will return later in our discussion.

"Do not be intimidated by any man"

The second commandment is prohibition no. 286 in Maimonides (no. 415 in Sefer HaChinukh):

Commandment no. 286 is that the judge was warned not to fear a harmful person—one who threatens and speaks arrogantly—and thereby fail to render the law and the truth against him. Rather, he is obligated to decide the case, and not pay attention to what harm may befall him from that person. As the Exalted One said (Deuteronomy 1): "Do not be intimidated by any man." And the language of the Sifrei is: "Do not be intimidated by any man"—lest you say, "I am afraid of so-and-so, lest he kill me or my son, lest he burn my haystack, or lest he cut down my plantings"; therefore Scripture says: "Do not be intimidated by any man."

The source of these remarks is the discussion in Sanhedrin 6b, where we find:

…as it is stated: "The beginning of strife is like releasing water; therefore leave off contention before it breaks out" (Proverbs 17). Before the dispute has broken out—you may abandon it (and make a compromise); once the dispute has broken out—you may not abandon it.

And Reish Lakish said: If two people come for judgment, one weak and one tough, before you have heard their claims—or even after you have heard their claims but do not yet know which way the law inclines—you may say to them: "I will not deal with you." Perhaps the strong one will be found liable, and then the strong one will pursue the judge. But once you have heard their claims and know which way the law inclines, you may not say to them: "I will not deal with you," as it is said: "Do not be intimidated by any man."

Sefer HaChinukh (ibid.) adds that this duty can be violated in two ways:

One who transgresses this and does not wish to judge, once he knows which way the law inclines as we have said, because he fears the litigant, violates this prohibition. And if he also distorts the law out of fear of him, he violates this prohibition, in addition to violating the prohibition of "Do not pervert justice" [commandment 233].

Thus, both one who does not wish to judge because of fear, and one who perverts the law because of it, violate this prohibition.

From the context it is highly plausible that this commandment too, like the previous one, was said regarding anyone who holds authority in Israel, and not only judges. Decisions made by a person who occupies a public role are meant to be made honestly, for the public good, and in accordance with the Torah, without fear of anyone. One who does not act this way, beyond being an unworthy person, violates a Torah prohibition.

Indeed, if we look at the passage from Sefer HaChinukh cited above that deals with other appointments, he writes this almost explicitly:

And he must not be intimidated by any person into appointing one who is unfit.

Admittedly, here the discussion is not about the person appointed, but about the one who appoints; but it stands to reason that there is no distinction. The matter is proven by itself, for the person who appoints judges is also a bearer of a public role, and the duty not to fear is imposed upon him precisely as such. If so, it is reasonable that the same applies to everyone who bears a public role.

The halakhic ruling

So too Maimonides rules, Laws of Sanhedrin 22:1–2 (and in Shulhan Arukh, Hoshen Mishpat sec. 12:1):

If two people come before you for judgment, one weak and one tough, before you hear their words, or even after you hear their words but you do not know which way the law inclines, you may say to them, "I will not deal with you," lest the tough one be found liable and turn out to pursue the judge. But once you hear their words and know which way the law inclines, you may not say, "I will not deal with you," as it is said: "Do not be intimidated by any man"—that you should not say, "So-and-so is wicked; perhaps he will kill my son, perhaps he will burn my haystack, perhaps he will cut down my plantings." And if he is appointed over the public, he is obligated to deal with them.

And likewise, a student who was sitting before his teacher and saw an argument in favor of the poor man and liability for the rich man—if he remains silent, he violates "Do not be intimidated by any man"; and about this it is said: "Keep far from a false matter"…

Maimonides adds here a further novelty, beyond what we have seen thus far, for he establishes such a prohibition with respect to every judge, and not only appointed and permanent judges. Anyone fit to judge, before whom litigants come, is obligated to take up their case if he knows which way the law inclines. And with respect to appointed judges, there is a further novelty in his words: for them, the distinction between whether they know which way the law inclines or not is not stated. Appointed judges are obligated to adjudicate every case that comes before them, even before they know which way the law inclines. Rashba wrote this explicitly in a responsum, vol. 2 sec. 344 (see Beit Yosef at the beginning of sec. 12, who cites it).

The motive for withdrawal

It seems that the medieval authorities disagree as to the explanation of the Talmud’s statement. Rashi there writes:

This is the correct reading: "Lest the strong one be found liable and then pursue him"—he pursues the judge to reverse the ruling.

That is, the concern is that the strong party will force the judge to reverse the ruling and not judge justly. By contrast, the language of Maimonides implies that he understands the strong party to be pursuing the judge in order to take revenge upon him.[1]

Accordingly, according to Rashi the threat to the judge comes before the decision of the case, and the judge’s wish to avoid the case stems from his desire to judge justly and not turn aside because of the threats. Once he knows which way the law inclines, he may no longer withdraw, and from that point he must withstand the threats and not alter the ruling (and in Tummim, s.k. 1, it is explained that after he has fixed the ruling there is no concern that he will move from it because of pressure). According to Maimonides, however, the judge may yield to threats and withdraw from the case so long as he does not yet know which way the law inclines. After that he is already obligated to enter and adjudicate this case despite the threats. In Maimonides it is implied that the threats are not necessarily meant to pervert the law, but rather to avenge the judge after his decision has been given.

One consequence that later authorities drew from this dispute concerns a case in which two violent men come before the judge. If the judge fears for himself, as Maimonides holds, then this case is no different from the previous one, since there is concern that the loser in the case will pursue and avenge himself on the judge. But if the concern is only distortion of judgment, as Rashi holds, then if both are violent one balances the other and there is no concern for distortion of judgment. Indeed, the medieval and later authorities dispute whether this law applies only when one is soft and the other hard, or also when both are hard.[2]

B. The Parameters of the Law of "Do not be intimidated"

The distinction between knowing and not knowing which way the law inclines

We saw that the Gemara and the decisors distinguish, with respect to "do not be intimidated," between a situation in which the judge knows which way the law inclines and a situation in which he does not yet know. In the Gemara this distinction is also mentioned regarding compromise, and there it is fairly clear why it is relevant. When one already knows which way the law inclines, compromise is a distortion of the law and the extraction of money from its owner unlawfully. Only before the law has become known is there, according to one view, some value in compromise, so as to prefer peace over truth. But regarding "do not be intimidated," the reason for this distinction is unclear. Why does one who recoils from judging because of threats, but does so before he knows which way the law inclines, not violate "do not be intimidated"? What logic is there in this?

The later authorities explain this as a formal law learned from the verse: after he knows which way the law inclines, he is in a state of final judgment, and when the Torah speaks of judgment it generally means final judgment. Some explained it from the term "taguru," from the root "to gather in" (this is one view in the Gemara itself), meaning that the judge may not bring his word inward, that is, fail to disclose it. Before the final judgment there is no "bringing his word inward," for he does not yet have a clear position of his own (this is how the author of Torat Chayyim explained the sugya).[3] But as to the underlying logic of the distinction, its reason remains unclear.

Some later authorities explained that before the judge knows which way the law inclines, he is under no commandment to adjudicate, and therefore he can still withdraw. This assumption requires much clarification, and this is not the place. Perhaps one could say that before he knows which way the law inclines, his withdrawal does not appear to stem from fear, and can be attributed to other factors. But after he has already entered the case and seen which way the law inclines, then if he withdraws it is proven that he did so because of his fear, and this is forbidden by the prohibition of "do not be intimidated." It seems that this is the root of the aforementioned explanation of the author of Torat Chayyim.

A judge appointed over the public

We saw that in the case of a judge appointed over the public, there is an obligation to take up the case even before he knows which way the law inclines. Why indeed does such an obligation apply to him? Radbaz there explains that this is because such a judge need not fear, since the public will assist him and rescue him, that is, protect him from the violent litigant. And what if the violence is of such a sort that the public cannot assist him? It appears from the words of Radbaz that in such a situation he is exempt from taking up the case.

Yet the words of Radbaz are difficult. First, according to his explanation regarding an unappointed judge, then even if he knows which way the law inclines, the law ought to have been that he is not obligated to take up the case, since the public will not protect him and he is in danger. More generally, his explanation accounts for the very obligation to take up the case, but not for the distinction between before and after he knows which way the law inclines.

Perhaps the explanation follows from what we saw in the previous section: in the case of an unappointed judge, especially when he does not know which way the law inclines, withdrawal does not appear to be capitulation to a threat, since it is not his role to adjudicate cases. Only in the case of an appointed judge does failure to take up the case appear from the outset as flight and surrender. And certainly such a judge is obligated to judge even before he knows which way the law inclines.

Indeed, Rashba in the aforementioned responsum (vol. 2 sec. 344) explains in a similar way. He was asked there about a litigant who refuses to be tried in the place where he must be tried according to Jewish law, and who threatens to use the power of the local ruler to compel a hearing elsewhere:

Monteson. You asked: Reuven lent a maneh to Shimon, and both live in Monteson. Now Shimon has gone to live elsewhere, in the land of the lords. Reuven came before the community of Monteson and before their religious court and lodged a claim before them against Shimon, and Shimon has property in Monteson. They sent to Shimon to appear before them with Reuven for judgment, but he refused and said that he would not be judged before them; rather, Reuven should come to the land of the lord, where he lives, and there he will litigate with him. Moreover, he threatened them by the power of his lord the nobleman if they should do anything against him in this matter. And you asked: what is the religious court in Monteson to do? And should they refrain from this because of fear of the lord, or not?

To this Rashba replies:

Response: According to the strict law, whenever Shimon has property in Monteson, the religious court must take up Reuven’s claim and send to Shimon to come litigate with his adversary before them… And if it is because they will suffer loss on account of the lord, this does not save the religious court from taking up the claimant’s case. For if he threatens them to act unlawfully toward them, perhaps he does not have the power and is frightening them with empty words. Moreover, if so, everyone would do this, for there is no one who cannot cause harm. And if so, the powerful would never be judged. And the Torah said: "Do not be intimidated by any man, for the judgment is God’s."

A religious court cannot refrain from hearing the case because of the threat, for two reasons:

1. Perhaps there is nothing to the threat. At first glance this rationale relies on the fact that the threat is doubtful, whereas the transgression (not judging him and yielding to him) is certain, and a doubt does not displace a certainty (see further below).

2. If they yield to him, then violent men will never again be subject to judgment, and we will in effect abolish justice from Israel. About this the Torah said, "Do not be intimidated by any man." See also Bach, Hoshen Mishpat sec. 12, s.v. "katav Mahariyu," who writes likewise.

We should emphasize that the first rationale appears to be one grounded in simple reasoning: if someone threatens me with an uncertain threat and seeks to force me not to perform my duty, a doubt does not override a certainty. This is so even without the verse "Do not be intimidated by any man." The second rationale says that even if the threat is certain, one still has no permission to yield to it. This law is certainly learned from the verse of "do not be intimidated." That is precisely what Rashba is innovating.

Where does Radbaz stand?

At first glance, the rationale of Radbaz seems even more moderate. According to his words, the obligation to take up the case is based on the fact that there is really no substantial danger, since the public will protect him. This implies that even if there is only possible danger, one has permission to yield to violence.

Yet Radbaz said this only in a situation where the judge does not yet know which way the law inclines. Once he does know this, he has no permission to refrain even without the protection of the public (that is, even if he is not an appointed judge). Thus Radbaz also contains the opposite claim, though only once the judge knows which way the law inclines. So even he does not give blanket permission to yield to threats.

In the words of Rashba it is quite clear that we are dealing with a case in which the judge still does not know which way the law inclines, for this matter is not mentioned at all in the question, and in his responsum Rashba does not need to appeal to it. Therefore it is clear that, with respect to an appointed judge, Rashba agrees with Maimonides that there is no distinction between a case in which the judge knows which way the law inclines and one in which he does not. This is also how Beit Yosef understood him at the beginning of sec. 12.

How far does this go?

From the language of Maimonides it appears that the judge is obligated to take up the case even in a situation of actual danger to life. He uses the expression "lest he kill my son," and the expression "the judge is pursued," both of which imply a situation of mortal danger. Indeed, Bach, Hoshen Mishpat sec. 12, understood Maimonides this way. He also explains that the fact that Rashi disagrees with Maimonides and limits the case to one in which there is no threat to the judge stems from a view according to which, where there is real danger, there is no prohibition against withdrawing from the case. This implies that according to Maimonides even in a dangerous situation there is a prohibition.

But in the end Bach concludes that this applies only in a case of possible danger, for in a case of certainty nothing stands in the way of preserving life. In Tummim, s.k. 2, it appears that even in certain danger there is no permission to withdraw from the case after he knows which way the law inclines, and certainly not in the case of an appointed judge.

The source of the matter is in Sifrei Devarim, sec. 17:

"Do not be intimidated by any man"—lest you say, "I am afraid of so-and-so, lest he kill my son or lest he burn my haystack or lest he cut down my plantings"; therefore Scripture says: "Do not be intimidated by any man, for the judgment is God’s." And likewise Jehoshaphat says: "And he said to the judges: See what you are doing, for you judge not for man but for the Lord."

Sifrei learns this principle from the wording of the verse, which gives a reason for the duty to judge by the claim "for the judgment is God’s," meaning that there is an obligation toward the Holy One, blessed be He, to judge. What is the meaning of this rationale?

It seems that the rationale of Sifrei explains primarily the duty to judge in a case of monetary danger (even certain monetary danger). The judge’s obligation to judge exists only because of the need and the commandment to save the property of the litigant who is in the right. But set against this is the danger to his own property, and therefore he can claim: who says the other’s property is redder than mine? Why should I sacrifice my own property to save someone else’s? Here the Torah comes and says that the duty to judge is not because of saving another’s property, but rather it is a duty toward Heaven, and therefore such claims have no place. To avoid violating a prohibition ("do not be intimidated"), one is obligated to spend all his property.

And indeed this is what we find in Yeshuot David, vol. 4 sec. 23: so long as he has not yet taken up the case, the prohibition of "do not be intimidated" has not yet taken effect upon him, and therefore he may withdraw, because his own property takes precedence over saving the other’s property. But after he already knows which way the law inclines, the prohibition applies to him, and now this is a prohibition toward Heaven, and there is no possibility of withdrawing from the case even if he will lose his property. Something similar was also written in Shevut Yaakov, vol. 1 sec. 143.

But all this relates to danger to property. When there is actual danger to the judge’s life, and not merely to his property, this rationale is not clear: is "do not be intimidated" one of the commandments about which it is said, "be killed rather than transgress"? Why must the judge sacrifice his life in order to save another’s property, or in order not to violate the prohibition of "do not be intimidated"?

Indeed, in the glosses Barukh Ta’am on Tummim it is noted that for this reason Sifrei and Maimonides were precise in their wording and wrote "lest he kill my son," to indicate that we are dealing with a case in which the judge allows fear to enter his own heart, and thus comes to withdraw from the case. In such a case the prohibition of "do not be intimidated" applies. But if there is in fact a reasonable concern of danger to life, he is under no obligation to judge in such a case.

But in Tummim itself it is written that at least when the judge knows which way the law inclines, he has no permission to withdraw even in a case of actual danger to life. This is what he writes (ibid., s.k. 2):

Bach challenged from the Sifrei, where it is explicit that even if he will kill, nonetheless one must not refrain from judgment… But if he has already taken up the case, even Mahariyu agrees—Heaven forbid that because of fear or any intimidation he should remove himself from the case; rather, he is obligated to judge. And this is the case of which the Sifrei speaks: even if he will kill, he may not withdraw. That is, where he has already taken up the case, and there is no difficulty. And so I found in the responsum Shevut Yaakov, vol. 1 sec. 243, that after he knows where the law inclines, it is forbidden to withdraw because of fear in any manner whatsoever, and so is correct.

Thus, in the responsum Shevut Yaakov, vol. 1 sec. 143, he writes in an even more extreme way; from his words it appears that there is no permission to withdraw from the case under any circumstances unless there is clear mortal danger, that is, unless that litigant is established as someone who would kill over such a matter (and ordinarily Jews are not suspected of this). Only then do we say that nothing stands in the way of preserving life; but in a case of doubt there is no permission to withdraw from the case.

Explanation

How are we to understand the views that obligate the judge to adjudicate even in a case of possible danger to life? Is another person’s property preferable to the judge’s life? And if for some reason the answer is yes, then why not obligate him to judge even in definite danger to life? Even the explanation in Sifrei, which grounds this in the existence of a prohibition, does not answer the difficulty, since all the prohibitions in the Torah (apart from the three most severe) are set aside before even possible danger to life.

One might have thought that we are dealing here with the transgression of a prohibition in public, and therefore the judge is commanded to sacrifice his life in order to prevent a desecration of God’s name (for in public every transgression falls under the category of "be killed rather than transgress"), and this indeed emerges at the beginning of the aforementioned responsum of Shevut Yaakov. But he rejects this, since the matter is not necessarily public. Yet even so this rationale should be rejected, for every judgment is by definition public, since the appointed court is a public institution, and the public is meant to conduct itself in accordance with the Torah.

In practical law, however, this explanation does not withstand scrutiny, since we do not obligate the judge to adjudicate in a case of definite danger to life, but only in a case of possible danger. Therefore it is clear that the rationale is not the public character of the act. True, according to those methods that understand the Sifrei literally, such that even in definite danger to life the judge is obligated to hear the case, that may indeed be the explanation. But how are we to understand the approaches that distinguish between definite danger to life and possible danger to life?

It seems that the only way to understand this puzzling law lies in the explanations of Rashba and Bach. If the judge does not adjudicate in such a situation, this is a grave breach, for every violent person will escape judgment, and society will be conducted in anarchy and fall prey to violent men. Because of this concern, in such situations the judge does not operate under the ordinary rules of Jewish law that apply to the isolated individual, but rather as one who bears a public role. An individual is not obligated (and apparently is even forbidden) to endanger his life in order to save another person, and that is true even for the sake of a Torah prohibition, severe though it may be. By contrast, here, even though no one is in a situation of danger to life, self-sacrifice is still required of him. A breakdown in public functioning is treated like a situation of danger to life.

The difference between possible and definite danger to life: the status of the individual within the public

Yet the identification between public breakdown and danger to life is not fully complete, for in a case of definite danger to life there is no prohibition of "do not be intimidated," and the judge may withdraw from the case. If a state of breakdown were fully equivalent to actual danger to life, we should have to obligate him to sacrifice his life even in a case of definite danger.

To understand the distinction between a state of danger to life and a state of public breakdown, we must return to an important distinction between two aspects under which every person is examined, a distinction I have discussed elsewhere.[4] I showed there that every Jew "wears two hats": the hat of a private individual who stands before the Holy One, blessed be He, and the hat of a limb within the encompassing organism, the collective of Israel, which as a whole stands before the Holy One, with him within it.

In light of this distinction, we can understand the difficulty we raised above. A judge who bears a public role is obligated to risk himself even where no one else’s life is in danger, merely to prevent public breakdown. Yet he does this in his capacity as a limb within the collective. Beyond that, he has another capacity, that of a private individual, and therefore we do not obligate him to enter definite danger, that is, to sacrifice his life, since in the end he is also a private individual, and as such he also has independent standing. He is not obligated to sacrifice his private life in order to repair the collective, or to prevent corruption within it. The Torah also recognizes his status as a private individual, and therefore permits him to preserve his life from definite danger.

The conclusion that emerges from this is that the obligation to enter possible danger does not stem from the fact that if this is not done someone’s life will be endangered, but from the fact that the significance of public breakdown, even in monetary law, is like danger to life for an individual. Such a perspective has several very far-reaching implications, and in the next chapter we shall try to point to some of them. But first we must examine a sugya that at first glance seems to stand in contradiction to our discussion.

A note: an exiled military commander

The picture we have described until now presents public need, even when it is not bound up with danger to life, as a necessity that justifies transgressing prohibitions, and even entering a state of possible danger to life. But the law of an exiled military commander seems to run against this claim.

As is known, one who kills inadvertently is liable to exile in a city of refuge, and as long as he is not within the city of refuge the blood-avenger may kill him, and is not punished for doing so. The Mishnah in Makkot 11b brings the following law regarding the exilee in the city of refuge:

And he does not leave—not for testimony concerning a commandment, nor for monetary testimony, nor for capital testimony; and even if all Israel need him, even if he is the commander of Israel’s army like Joab son of Zeruiah—he never leaves there, as it is said: "to which he fled"—there shall be his dwelling, there shall be his death, there shall be his burial.

The Mishnah rules that the exilee does not leave the city of refuge for any need whatsoever. Even in a case where all Israel need him as a commander to save them, he is forbidden to leave the city of refuge.

Maimonides likewise rules this in practice (Laws of Murderer 7:8):

The exilee never leaves his city of refuge—not even for a matter of commandment or for testimony, whether monetary testimony or capital testimony; not even to save a life by his testimony, or to save from the army, or from the river, or from the fire, or from a collapse; and even if all Israel need his deliverance, like Joab son of Zeruiah, he never leaves there until the death of the High Priest. And if he goes out, he has permitted himself to be killed, as we explained.

These statements raise a very great difficulty. If the problem were the duty of exile incumbent upon the exiled commander, then that duty would be set aside before danger to life, and certainly before danger to life to the public as a whole. Therefore later authorities wrote—and this is also implied by the wording of Maimonides above—that the problem is not the fulfillment of the duty of exile as a punishment imposed upon him, but rather that the exiled commander places himself in a state of possible danger to life (for the blood-avenger may kill him), and a person is not obligated to place himself in possible danger in order to save another. Indeed, several later authorities (see, for example, Or Sameah ad loc.) bring from here a proof against Haggahot Maimoniyot (at the beginning of Laws of Murderer) in the name of the Jerusalem Talmud, which rules that a person may place himself in possible danger to life in order to save his fellow from certain danger. As is well known, this rule was not accepted in practical law (in peacetime), and at first glance this is a clear proof of this.

If so, on the ordinary halakhic plane this law seems reasonable. But the problem that arises here is that the danger in question is not a danger threatening another private individual, but danger to all Israel. How can it be that a person is forbidden to place himself in possible danger to life when the lives of the entire Jewish people are at stake?

Beyond the fact that this law contradicts what we said above—where we saw that even judicial anarchy justifies the judge’s entering a state of possible danger to life[5]—there is here a double and redoubled difficulty. At first glance, this law would imply that a soldier is forbidden to go out to war, since by doing so he places his life at risk (see further in the next chapter). More than that: his own life, too, is endangered because of the war, along with the rest of the public, so why does this danger not outweigh the danger posed to him by the blood-avenger?

It is apt to cite here the words of Arukh HaShulhan, who addresses the aforementioned law of the Jerusalem Talmud and writes as follows (Hoshen Mishpat sec. 426, para. 4):

The decisors cited in the name of the Jerusalem Talmud that a person is obligated to place himself in possible danger in order to save his fellow. But the medieval authorities omitted this because from our Talmud it is proven that he is not obligated to place himself in danger. Yet everything depends on the circumstances, and one must weigh the matter carefully and not protect himself excessively. And regarding this it is said, "And there I will show him the salvation of God"—this refers to one who weighs his paths. And whoever preserves a single Jewish life is as though he preserved an entire world; see also Yoreh De’ah sec. 252.

That is, even in the laws of the individual one must weigh the risk against the prospect and against the alternative danger facing the other person. All the more so when the matter concerns the public.

Or Sameah himself remarks that there might have been room for the Sages or the king to enact a regulation forbidding the blood-avenger to kill the exiled commander, in order to enable him to go out to war. Or Sameah argues that such a regulation is impossible, because the Torah assesses the blood-avenger’s mind as one who will not stand by it, and will nevertheless kill the exiled commander. But, with all due respect, these are highly puzzling words, for that blood-avenger is himself in danger like the rest of Israel, and certainly in a situation where he endangers the whole Jewish people it is permissible even to kill him (and certainly to imprison him preventively) so that he not endanger us all. He has the full status of a pursuer with respect to the public of Israel. All the more so since, as we noted, the commander himself is in precisely that same danger.

It is quite astonishing that the later authorities ignore this public aspect (the commentaries there say nothing at all about this law). Were it not that I fear to say so, it would seem that the circumstances in which they operated—a Jewish community in exile—prevented them from seeing this important aspect. To be sure, some later authorities did note this difficulty (not necessarily because of the public aspect), and therefore interpreted this law differently.

For example, Arukh HaShulhan in Hoshen Mishpat sec. 425, para. 7 writes concerning the above ruling of Maimonides:

And although nothing stands in the way of saving life, one may say that since, if he leaves, his blood is permitted, we cannot tell him to permit his own blood for the sake of others. Moreover, since the killing of a person came about through him, it is far-fetched that merit should come about through him.

After bringing the previous explanation, he adds that perhaps the prohibition against leaving exists because his departure will not bring the hoped-for benefit. Some have written that the duty of exile overrides danger to life by scriptural decree, and perhaps that is what they mean.

At the end of that same law he adds:

And one may question whether, if he wishes to leave for a life-saving commandment, we stop him or not. From reason it would seem that we do not stop him, and what we learned in Makkot 11b that he does not leave there means only that we do not compel him to leave. And this is also implied somewhat by the Jerusalem Talmud there, and the practical law requires further study.

We see that he was not satisfied with the previous explanation, and therefore he suggests that the possibility of remaining in the city is only the commander’s right, not his obligation. Therefore, if he wishes to go out and fight, they do not stop him (rather, he merely has the right to refuse, since he is not obligated to risk his life for the sake of others).[6] Perhaps one can say even more: that there is in fact no prohibition against leaving at all, and the intent of the Mishnah is only to say that even if he goes out to save Israel or for a matter of commandment, this does not nullify the blood-avenger’s right to strike him. That is, the point here is not a prohibition imposed upon him, but that the danger to him remains in force, and if the blood-avenger harms him he will not be punished. Indeed, if the Sages were to enact a prohibition upon the blood-avenger or to treat him as a pursuer, this would pose no problem at all, and that is certainly a real possibility—but that is not the subject under discussion. Here only the underlying law is being stated: that the blood-avenger’s right remains in place as a matter of basic law, and if the Sages wish, they may enact special measures in this area.

Whatever explanation one gives for this puzzling law, it is clear that this is an exceptional case and does not reflect a fundamental conception. The difficulties remain in force (for example, that according to this a soldier would be forbidden to go out to war and risk his life), unless we accept the words of Arukh HaShulhan that the Torah tells us that one who killed inadvertently cannot be the agent of Israel’s salvation, and therefore his departure would not be beneficial. In any event, the picture we have presented thus far appears to remain intact.

C. Halakhic Implications

Police on the Sabbath

Usually, when we discuss whether it is permissible to operate a public service on the Sabbath, we ask whether not operating it involves danger to life for any of the citizens in society. It is well known that when society is under discussion, dangers are treated much more leniently. The main reason is that a slight risk to a single individual is translated into a real risk for an entire society. For example, the Gemara says that one extinguishes a glowing metal coal in the public domain on the Sabbath. According to the Geonim, even a Torah-level extinguishing is permitted here. Clearly this is not a case of palpable danger to life, for if it were there would be no room for dispute, and there would be no novelty here. The novelty is that a slight risk, one that would not permit Sabbath desecration for a single individual, does permit it with respect to the public (when the coal is in the public domain).

The explanation seems simple:[7] if we assume the risk is 0.1%, then for a single individual (that is, a coal lying in one person’s courtyard) there is no basis to permit such extinguishing. But in the public domain thousands of people pass by, and so such a chance becomes almost a certainty that one of them will be harmed. Therefore, on statistical grounds, one may permit Sabbath desecration for the public even in the face of low probabilities.

But here we are speaking about an entirely different principle. In our case there is no direct danger to life at all, but only the danger of judicial anarchy, and nevertheless we obligate the judge to risk his life. If so, why should we not likewise permit Sabbath desecration for the same reason? If such a state indeed overrides possible danger to life, and possible danger to life overrides the Sabbath, then such a state should certainly also permit Sabbath desecration.

The conclusion that emerges from our discussion is that, at least according to these views, operating the police on the Sabbath is permitted even in a case where there is no danger to life at all, solely because of the concern for legal-social anarchy. For example, if it is known that there are no murderers and no threats to life, but only concern over theft, is it permitted to desecrate the Sabbath in such a case? The answer is that if the concern is that a situation will be created in which society as a whole must fear thieves on the Sabbath, because no one restrains or hinders them from stealing on Sabbaths, that justifies Sabbath desecration.

The conclusion is that the permission to operate police on the Sabbath exists even for the prevention of mere monetary theft. This is a great novelty, but in my humble opinion it emerges clearly from the views of the medieval authorities cited above in the sugya with which we are dealing here. Of course, the matter requires much clarification and a ruling from leading halakhic decisors, and I have come here only as one offering a suggestion.

We may now ask ourselves: what about other public services and institutions? Should they too be operated on the Sabbath even without a necessity involving danger to life? The answer is not clear. For example,[8] is it conceivable that a state’s foreign service should not function on Sabbaths in the modern world? Note carefully: we are not referring to problems of danger to life that may be bound up with this matter, but to the very impairment in the public functioning of society and the state, that is, to social anarchy. On the other hand, it is patently unreasonable to say that every public need would justify Sabbath desecration, and therefore the boundary here is unclear.

A possible conclusion regarding soldiers in battle, and in general

Another situation in which we see the distinction between individual and public is war. In practical law a person is forbidden to surrender his life in order to save his fellow from danger (though see the Jerusalem Talmud cited by Haggahot Maimoniyot at the beginning of Laws of Murderer, but the law does not follow that view). Yet in war this is precisely what every soldier does. He risks his life in order to save civilians, and sometimes also in order to save his fellow soldiers. What permits this? Most likely, the permission is based on the fact that this is an act of public significance, and the soldier is not acting as a private individual but as an organ of society and of the fighting army. Therefore he is required to risk his life for ends for which, as a private individual, it would have been forbidden for him to do so.

Of course, the comparison is not complete, for in war danger to life threatens society, and certainly the soldiers, and not merely a danger of social anarchy. Therefore the permission here appears to be solidly grounded in the laws of danger to life. But that is not entirely precise, for one may ask: is a soldier permitted to surrender his life in order to save the lives of his fellow soldiers independently of the victory in the war? For example, in the Second Lebanon War, Major Ro’i Klein, of blessed memory, threw himself on a grenade and sacrificed his life in order to save the lives of several of his comrades in the unit. Such a case is not self-sacrifice for the sake of victory in the war, or even in a particular battle, but for the sake of saving the lives of a few private individuals. Is such an act permitted from a halakhic standpoint?

This is not a simple question, but there is room to permit it from the standpoint that, as a soldier, he is not wearing the private hat but the public one, and therefore the considerations are not the life of Reuven against the life of Shimon, but the sacrifice of one limb for the sake of saving other limbs. If the collective is the body that is here in danger, one may amputate one branch of this organism in order to save the other limbs.

We may now ask whether there is an obligation to do so. More than that: even in a case where this is required for victory in battle, is a soldier obligated to surrender his life in a state of definite danger to life (that is, a state in which he will certainly be killed for the sake of victory)?

It seems that there is broad agreement that this cannot be imposed as an obligation. True, as we saw, such an act is permitted within a military framework (as opposed to a civilian framework), but it cannot be imposed as a duty. Not an act like that of Ro’i Klein, of blessed memory, and not even a similar act for the sake of victory in battle. One cannot obligate a soldier to surrender his life in certain mortal danger for the sake of victory; at most one can obligate him to enter possible danger (participation in war is itself entry into possible danger, something forbidden within the framework of an individual’s ordinary life).

This is an expression of the other side of the coin that we encountered above. Although the soldier in uniform wears the public "hat," at the same time there is also in him an aspect of the isolated individual, and as such he is indeed required to enter possible danger, but one cannot obligate him to enter definite danger.

The same is true regarding the appointed judge, who according to some views must enter a situation of possible danger: we saw that one cannot obligate him to enter definite danger. We may now ask whether he is permitted to do so. In light of the analogy to war, it may be that the answer is affirmative. This is permitted, even though it cannot be imposed as an obligation. A person may decide to relinquish his private hat for the sake of his functioning as a limb in the general organism, but that decision is his alone. He is not obligated to do so, but he is permitted. This severe law, too, is offered here for the public’s consideration, and I am certainly not fit to rule on it.

War on the Sabbath

The permission to wage war on the Sabbath, which is learned from the verse "until it falls" (see Shabbat 19 and parallels), also appears to belong to the same line of thought. Clearly this is not a case of ordinary danger to life, for with respect to that no source is needed to permit Sabbath desecration. We are therefore compelled to say that we are dealing with a case which, under the laws applying to individuals, would not permit Sabbath desecration (for example, an optional war, or a case in which the war could be delayed, and the like). According to our analysis, the basis of the permission may be that in the laws of the public it is permitted to desecrate the Sabbath even in such circumstances, because of the concern for anarchy if victory in war is not achieved, and if it becomes clear that we do not fight on the Sabbath.

However, one should raise against all our discussion what is brought in the Gemara (see Eruvin 45a), and is ruled in Shulhan Arukh, Orah Hayyim sec. 329:6–7:[9]

If gentiles besiege Jewish towns: if they come over monetary matters, we do not desecrate the Sabbath on their account; if they come over matters of life, and even if their purpose is unspecified, we go out against them with weapons and desecrate the Sabbath. And in a town adjacent to the border, even if they came only over straw and stubble, we desecrate the Sabbath. Gloss: and even if they have not yet come but only wish to come (Or Zarua).

Thus, the law is that one does not go out to war on the Sabbath over monetary matters (straw and stubble), but only in a situation of danger to life. Even in border towns, where they permitted going out even over straw and stubble, the reason is only because there is concern for future danger to life (that they will seize the place and the land will be easier for them to conquer).

This would seem to contradict our discussion, for according to our approach, even where there is no danger to life, a public concern for property permits Sabbath desecration. Indeed, the matter also requires explanation on the level of plain reasoning, for according to this policy all the gentiles around us will know that on the Sabbath they can come and take all our property, and simply announce that they are coming only for monetary matters and not threatening lives. In such a state one leaves no life for any creature. For a similar reason judges were obligated to risk their lives in order to adjudicate the case of a violent man.

Now we find in Haggahot Asheri on Eruvin (sec. 6) that in our time, when we dwell among the gentiles, one goes out against them with weapons and desecrates the Sabbath because this is no worse than a border town. Thus Shulhan Arukh rules there in the following paragraph (7):

There are those who say that nowadays, even if they come over monetary matters, we desecrate the Sabbath, because if Israel will not allow them to plunder and loot his property, they will kill him, and it becomes a matter of life. (Nevertheless, everything depends on the circumstances) (decisions of Rabbi Israel Isserlein, sec. 150/156).

These words are puzzling. Why does the fact that we dwell among the nations render the situation equivalent to that of a border town? Does monetary danger here become danger to life? Put differently—and so Magen Avraham asks there, though his answer is very strained—why not simply give them the money and avoid the need for Sabbath desecration?[10]

It therefore seems that his intention is different. Perhaps he is motivated by the problem we raised above: after all, we dwell among the nations, and therefore if we adopt a consistent halakhic policy that forbids self-defense on the Sabbath, the gentiles will come and take all our property on Sabbaths, and we will have left no life to the descendants of Abraham our father.[11] Therefore Haggahot Asheri likens this to the case of a border town. There too, the basis of the permission is not future danger to life (as the decisors explain), but the fact that the town lies close to gentiles, and if we do not deal with them firmly they will exploit this and take all the money on Sabbaths as a fixed policy. That is why in a border town they permitted desecrating the Sabbath even for straw and stubble. The reason they did not permit this also within the interior of the land is only that there is no concern that this will become a fixed situation in which Jewish property is effectively ownerless. But if there were such a concern even within the land, then indeed we would permit going out to war over straw and stubble there as well, and this seems quite obvious as a matter of reasoning.

Formal and substantive reasoning

According to our approach, the formal rationale of concern for future danger to life that is offered as the basis for the permission in border towns is nothing more than a halakhic fiction, whose purpose is to rely on a formal mechanism of permission. But the basic motivation is the need to protect property so that it not be ownerless, and so that there not be anarchy. This is precisely the permission we proposed above with regard to operating the police on the Sabbath. Haggahot Asheri may have needed this fiction only because he is discussing the situation of a community rather than that of an autonomous society. An autonomous society (such as a state) may be permitted to operate various services on the Sabbath even without these fictions.

There is room to show[12] that even the permission to kill a burglar who breaks in is based on the same mechanism: the basis of the permission is the need to protect property against a phenomenon liable to lead to social anarchy (for if it were forbidden to kill thieves, they would exploit this and steal everything by force), while the formal mechanism of the permission resorts to a rather circuitous consideration of future danger to life. Here too the arguments about future danger to life are a fiction, needed only because the permission is stated with respect to every private individual whose house a thief reaches. But with regard to the permission for the state to operate police on the Sabbath, there is no need even for the fiction of future danger to life; it is enough that there is concern for anarchy.

An explicit example of such a permission is found in the words of Shulhan Arukh (Hoshen Mishpat sec. 388:10) and Maimonides (Laws of Injury 8:10), who permit killing one who turns over another person’s property after warning. Here too the permission is to kill for the sake of protecting property. It may be that this permission was said to the authorities of the community or society, and not to a private individual (who would need the fiction of future danger to life in order to receive such a permission, but this is not the place to elaborate).

The common denominator of all these cases is the permission to kill in order to save property, where we are dealing with a social phenomenon whose absence of such permission is liable to lead to general anarchy. Where there is merely a local risk to property, it is certainly forbidden to kill, and certainly also forbidden to be killed. If our words are sound, then the law of war on the Sabbath certainly does not contradict the line of thought we have proposed here.

Further conclusions

There are several further conclusions, in ever widening circles of the analogy we have drawn here. But we will conclude with the basic conclusion that a policeman or soldier, like every public employee, has no permission not to perform his duty because of fear of danger. This applies even where the goal of the activity is not directly connected with saving lives.

It is a well-known fact that there are whole areas in the state that police are afraid to enter in order to perform their duty (both in criminal contexts and in nationalist contexts). The conclusion of our discussion is that this is forbidden, and they are obligated to carry out their duty fully, even in a situation of possible danger. In definite danger there is certainly no such obligation, and one who nevertheless wishes to do so is permitted—and of course deserving of great esteem.

The needs of the many are like the needs of a commandment

Several later authorities wrote that giving money for public needs, even if the goal is a discretionary matter, is considered like the needs of a commandment. Therefore, according to their view, such giving is in the category of charity. This has several halakhic implications, such as that it may be given even from tithe money. There are even opinions that paying taxes to the state (at least in part) is considered charity.

For example, the author of Shulhan Arukh, Orah Hayyim sec. 153:5, deals with the question of what to do with funds collected for a specific purpose when a surplus remains after the project has been completed. Shulhan Arukh rules that in such a case the use of the funds may be redirected to any purpose the public desires. Magen Avraham there (s.k. 6) explains this ruling by saying that the townspeople’s intention from the outset was that the money could be redirected for any purpose. By contrast, Taz (s.k. 2) notes that here Shulhan Arukh uses the language of "they may change," as opposed to the language "they may spend" that appears there in para. 7. In para. 7 the discussion concerns the conscious consent of the donors, and therefore there the money may be spent even on a discretionary matter, since the intent of the donors is decisive. But in our case, the implication of the language is that it must be spent on a matter of commandment (and the meaning of "they may change" is that one may change it from a more severe commandment to a lighter one). He therefore explains that although it may indeed be redirected to any need the public desires, this is not because the public originally agreed to that, but because all public needs are considered a matter of commandment.[13]

At the end of the paragraph he proves this from the sugya in Megillah 27, and also from the law that one supervises public needs on the Sabbath.[14] In fact, there are many additional sources for the principle that public needs are like a commandment need. See Moed Katan 6a, and Shulhan Arukh Orah Hayyim sec. 544:1, as well as there at the beginning of sec. 545 (and Bi’ur Halakhah there, s.v. "public needs," and Pri Megadim cited there) that public needs are attended to during the intermediate festival days. Also see Shulhan Arukh Orah Hayyim sec. 70:4 regarding one who is engaged in public needs and does not interrupt for the recitation of Shema. Also Yoreh De’ah sec. 228:21, where public needs are treated like a matter of commandment for the sake of annulling a vow made in the presence of many on their account. Also Magen Avraham sec. 218 s.k. 22, and many more.

Why are discretionary needs of the many considered like a commandment need? At first glance we see here a consideration similar to what we raised above: what is discretionary for the many is like a commandment for the individual. Breakdown among the many is like danger to life for the individual. In other words, the way Jewish law treats social problems that concern the public as a whole raises their status relative to the same problems when they concern isolated individuals.

In this article we encountered two different aspects of the comparison between the laws of the individual and the laws of the many. We saw that there is a statistical difference between the situations, by virtue of which one may be lenient in the laws of the public (so that possible danger to life in the public is like definite danger to life for the individual). We explained that this is not a substantive difference but rather a matter of quantity and the probability of risk. By contrast, we saw that a breakdown among the many that does not concern lives is like a category of danger to life for the individual. This is already a substantive difference between the individual and the many: public needs are considered weightier by virtue of the standing of the public itself, even though objectively the problem is one of property. We now see something similar: discretionary needs of the many are considered like commandment needs of the individual. This aspect as well reflects a substantive difference between the way Jewish law relates to the individual and to the many.

[1] See Derishah and Bach, Hoshen Mishpat sec. 12, s.k. 1.

[2] See Tosafot ad loc., and in Sefer HaMafte’ach (the Frankel edition) on halakhah 1 in Maimonides.

[3] Several later authorities already challenged him on this, for from the language of Maimonides it appears that he interprets "taguru" in the sense of fear and dread, not in the sense of storing up, and it is therefore difficult to explain him in this way. See Sefer HaMafte’ach in the Frankel edition on the Kesef Mishneh at the end of halakhah 1.

[4] See on this my article, "The Problem of the Relation Between the Individual and the Collective and the ‘Defensive Shield’ Dilemma," Tzohar 14, and also note 15 in the book Shtei Agalot Ve-Kadur Pore’ah. See also my Middah Tovah essays on the portions Ki Tisa and Beha’alotekha, 5767, which are scheduled, God willing, to appear in a collected volume during the coming year.

[5] True, it is possible that there is no such frontal contradiction, for here perhaps we are dealing with a case of definite danger to life, since the blood-avenger will kill him. But one may reject this by noting that the blood-avenger himself is in danger, and it is difficult to see certainty that he would not restrain himself rather than endanger the public by killing the commander.

[6] This too contradicts what we saw above, that the judge is obligated to enter possible danger, and not merely entitled to do so.

[7] See on this the article by Rabbi Hanan Ariel, "Public Transportation – a Halakhic and Moral Obligation," Tzohar 15. There he notes that, beyond the privileges and special leniencies that the public has as a public, there is also this statistical consideration.

[8] Yeshayahu Leibowitz raised this example as part of a broader argument in favor of operating necessary governmental institutions on the Sabbath even without considerations of danger to life. Here we find a possible halakhic source for that position.

[9] See on this Tzitz Eliezer, vol. 3 sec. 9, and in our article on the Torah portion, 5767, and elsewhere.

[10] See, for example, Shemirat Shabbat Ke-Hilchatah ch. 41 note 70, for what is cited there in the name of Rabbi Shlomo Zalman Auerbach and for the criticism of his answer. In the end, the words of Magen Avraham directly contradict the sugya of the burglar who breaks in, and only our suggestion here can save them from that (see on this my article, "Is It Permitted to Kill in Order to Protect Property," which is slated, God willing, to appear in the forthcoming issue of Techumin).

[11] Here there is even future danger to life, since in the absence of property some people will come into mortal danger. But that is not the heart of the matter.

[12] For a fuller presentation of the arguments that arise here, see my aforementioned article in the forthcoming issue of Techumin.

[13] See Hatam Sofer, Yoreh De’ah sec. 244, who is cited there, and see further there in sec. 220.

[14] It seems that his intent is to Shulhan Arukh sec. 306:6 (see Mishnah Berurah there, s.k. 28), as well as there in para. 12, and see also Magen Avraham sec. 307 s.k. 16.