Rulings of Jewish Law during the Holocaust and Their Significance for Future Generations

With God's help

"By the Judgment of Heaven and by the Judgment of the Community"

"Moses received the Torah at Sinai and transmitted it to Joshua, and Joshua to the elders…" We accept that the Torah was given to us by the Holy One, blessed be He, at Mount Sinai, and nothing may be added to it ("do not add"), nor may anything be subtracted from it. "This Torah shall not be replaced." But immediately afterward, in Pirkei Avot, we find several times: "He would say…" Jewish law is not merely transmitted as it is from generation to generation, with the transmitters serving, as it were, as a "hollow pipe." Rather, it also accumulates, develops, and expands over time. The words of the sages of the generations who "would say" become part of the corpus of the Oral Torah. Some join the Torah-level component (interpretations and expositions), and some join the rabbinic component (ordinances, decrees, and customs). By way of stylistic flourish, one might say that the Torah contains something of the "judgment of Heaven" spoken at Sinai, but it also contains something of the "judgment of the community" that accumulates over the generations.

But even the "judgment of the community" is not all of one piece. In a previous article[1] I argued that even within it one must distinguish between two basic components: the theoretical, pure, and eternal part, and the part that is local and temporary. The relation between these two and its significance, especially in the period of the Holocaust, is the subject of this essay. My purpose here is to argue that one of the important lessons that can be learned from analyzing rulings of Jewish law during the Holocaust is that a halakhic decisor, however great, bears a duty of great caution when he comes to decide Jewish law in a reality with which he is not directly acquainted. And this applies even in situations less extreme than those that prevailed during the Holocaust.

To sharpen the point, I will first present a preliminary section containing several necessary introductions. After that will come two further sections with examples, and I will conclude with a section that briefly summarizes what emerges from the discussion.

A. Two Components of Halakhic Ruling

Introduction

This part of the essay deals, on the one hand, with simple matters, but on the other hand with questions that touch the very crucible of Jewish law. It would have been proper to expand on them more, to bring sources and examples, and to explain them. But here my purpose is only to offer an introduction that will lend meaning to the examples discussed later.

On the "Judgment of the Community": Between the Temporary and the Eternal in Jewish Law

Every case that reaches a decisor comes against the background of its place and time, but the ruling is made on the basis of the "judgment of the community" as it had crystallized up to that moment, while at the same time that very ruling also joins the general halakhic corpus, that is, the "judgment of the community" that is transmitted onward and forms part of the basis for other rulings in the future. And yet, within the specific halakhic ruling there is also something highly local, dependent on the specific circumstances of the case, and therefore it cannot be decided solely on the basis of a simple logical deduction from the existing halakhic storehouse. As we shall see, for that same reason it also cannot join that corpus as-is and continue onward with it.

This distinction can be illustrated by comparing the similarities and differences between a responsum in a book of responsa and a theoretical-analytical legal ruling (a section in the Shulchan Arukh or in Maimonides). A ruling in responsa is an answer to a specific question given for a specific situation, with all its complexities. It discusses them in light of the principles of Jewish law, but it also includes halakhic and meta-halakhic policy (which is sometimes valid only for its own moment), consideration of the questioner's distress, evaluation of the facts and what follows from them, and combinations of additional principles and considerations. By contrast, a general legal ruling as it appears in a code such as the Shulchan Arukh is careful specifically not to take such specific details into account. The principled legal ruling states a general rule: act X is permitted, forbidden, or obligatory. Its prohibition is Torah-level or rabbinic. But it contains no reference to any particular person (whether he is poor or rich), to circumstances (what the place is like, who lives there, and what constraints surround the case), or to additional general halakhic principles involved in the discussion. Practical ruling combines these two elements, and at times it is difficult to distinguish between them.

Let us sharpen this distinction further. The Talmudic rule "when one sage has forbidden something, his colleague may not permit it" (Berakhot 63b and elsewhere) certainly does not apply to a ruling in a law code. Nearly all published law codes were followed by many books of rulings that disagreed with them on various points. That rule was stated only regarding a specific ruling for a specific case, that is, a decision in the form of responsa literature. The difference is that a ruling of the latter type is said about a particular case and determines its status. A ruling in a legal code deals with general principles and not with particular cases, and with respect to those there is certainly room for dispute.

The general ruling contains mainly the eternal and always-binding component of Jewish law, whereas responsa literature contains quite a bit of the second component, the one dependent on circumstances. Admittedly, the distinction is not entirely sharp. Law codes do contain instructions that take into account pressing circumstances, substantial loss, and the like (although usually not in a specific way). And on the other hand, it is also clear that one can derive from a responsum in a responsa collection general legal principles, interpretations, and new conceptions. In other words, it too contains something of the pure part of Jewish law. But in the end one must be very cautious when drawing halakhic conclusions from it. Sometimes the circumstantial element affects even the principled interpretations, and thereby makes analogical reasoning from case to case very difficult.

Professor Haym Soloveitchik, in the second part of his book Jewish Law, Economy and Self-Image: Pawnship in Medieval Ashkenaz, which deals with rulings of the medieval authorities (Rishonim) in Ashkenaz and Spain on matters of interest, makes an interesting and important observation. He points out that many rulings of major medieval authorities in the Middle Ages stood in direct contradiction to the legal determination in the Talmud. The reason was usually issues of time and place, constraints, distress, and difficulties. In addition, there were also changes in reality that required principled adjustments to Talmudic laws that had been set in a different period and reality. But Soloveitchik argues there that from the entire halakhic literature on interest produced by the medieval authorities, what entered the Shulchan Arukh, and thereby in effect joined the halakhic corpus transmitted to later generations, was only what arose from the Talmudic discussions, or at least what fit with them. The rest remained in the responsa literature, and indeed could serve decisors and scholars in later generations, but it did not become part of the pure halakhic corpus. This is the portion belonging to the circumstantial component, that is, the part dependent on time and place and lacking eternal force.

Facts Are Temporary and Norms Are Eternal

Discussions by decisors in responsa join the halakhic corpus in another sense as well, and by definition this belongs to the eternal, pure component of Jewish law. One can learn from them a methodological lesson, not merely a halakhic one. They teach how a decisor should take into account his time and place and the various constraints that appear in them. Thus, even if my own circumstances are entirely different, I can still see how one should in principle take such circumstances or others into account as against the eternal and principled component. This lesson can indeed be learned from responsa literature, and in a certain sense it is eternal.

For example, much of the scientific material that Maimonides brings in his books (see the beginning of the Laws of the Foundations of the Torah and elsewhere; most of it, as is well known, taken from Aristotle) is today known to be incorrect. At first glance these parts of his teaching might seem superfluous, but that is a mistake. One can still learn from them a methodological, meta-halakhic, and meta-intellectual lesson: how a Torah scholar can and should cope with new scientific knowledge available in his time, whatever that knowledge may be. Maimonides teaches us that firm scientific knowledge cannot simply be brushed aside, even in the face of bodies of tradition. He taught us the important lesson that sometimes even a Mishnah does move from its place. Sometimes the method is no less important than the contents themselves, and it seems to me that today this is the main lesson of the first four chapters of the Laws of the Foundations of the Torah. The same is true with regard to halakhic confrontation with distress and constraints: even if they do not exist in my time, and even if the laws ruled then are no longer relevant today, I can still learn from the decisors, and from responsa literature in general, how I ought to approach such problems and what place considerations of time and place have in the final legal ruling even in my own era.

In this sense too, the temporary and specific halakhic creativity that appears in responsa is part of the pure halakhic corpus. This is another part of it that joins the tradition of the generations. But this part generally belongs more to the Oral Torah, and its main function lies in use toward practical ruling more than in learning the law itself. This is part of what is sometimes called "the fifth section of the Shulchan Arukh."

This distinction can also be illustrated with regard to halakhic discussions in the Talmud itself. For example, the Talmud in the first chapter of Bava Batra (5a) establishes the presumption "a person does not ordinarily repay before the due date." Therefore, if Reuven demands that Shimon repay a debt before the agreed date, Shimon is not believed to claim that he already repaid, since people do not generally repay before the appointed time. Now let us ask: what would the law be in a place where the practice is that people do repay before the due date (for various reasons, such as concern over interest growth under a halakhically structured investment arrangement, and so forth)? Clearly, in such a case the factual presumption no longer exists. Does that mean that the Talmudic discussion in Bava Batra has no value? Certainly not. The Talmudic discussion did not come to teach us that presumption as a psychological estimate of the human soul. Such an estimate is a fact (a psychological fact), and facts are learned from observation and scientific (or psychological) research. Facts can also change with time and place. The Talmud's treatment of facts is certainly subject to change. The word "Torah" derives from instruction; its business is norms, not facts. Accordingly, the lesson we must learn from the discussion in Bava Batra is not the factual lesson (that such a presumption exists), but the halakhic-normative lesson: that when some presumption exists, whatever it may be, it is strong enough to extract money from one who is in possession (like two witnesses, and unlike a migo according to most views). Which presumption exists in a given time and place and which does not? That is a factual matter, which varies according to circumstance, and it is not part of the substance of Torah. Only the normative principle that a presumption can extract money is eternal, and therefore only that should be distilled from the sugya and added to the halakhic tradition (the pure component) that is passed onward and is always valid. There are extreme cases in which even norms may change, but that is not our subject here.

The Meaning of a Ruling According to Place and Time

Let us now draw closer to our discussion through a brief consideration of the Binding of Isaac. As is well known, the Torah and the sages treat Abraham our forefather's trial of the Binding as a model for the generations, and therefore as a merit that stands for his descendants forever. But some commentators have raised criticisms of Abraham's conduct regarding the Binding.[2] I will not enter here into the sources and their analysis, since my purpose is only to illustrate a general point for our needs.

The criticisms directed at Abraham focus mainly on the question whether he should have sacrificed his moral principles because of the divine command, or whether he should have stood his ground. Some have argued that Abraham should have considered the possibility that the divine voice was nothing more than an inner voice deceiving him. This is especially so when the content of the command stands in opposition to all the moral principles that the Holy One Himself expects of man, and in direct contradiction to the promises Abraham had received: "for through Isaac shall your offspring be called." Such criticisms assume that I, the critic, understand well the situation in which Abraham finds himself, and that in some way it resembles the situation in which I myself stand. And just as I can doubt things that seem to me correct, so I imagine Abraham should have related to the divine command. This despite the fact that the critics almost certainly never merited to hear the voice of God addressing them. How do they know that the certainty of such a voice is incomplete? From where do they derive the possibility of doubting it? To use an analogy: if I describe to a blind person some appearance that I see, he can always claim that my eyes are deceiving me. I have no way to prove to him that this is not so. And yet such criticism would probably not diminish my trust in what my eyes see. A person does not doubt what he sees, and the blind man who suggests such doubt is mistaken, simply because he has never experienced sight. Abraham, who hears the voice of God speaking to him, presumably harbored no doubt at all about it. He cannot explain this to his critics, but they too should understand that they do not know, and have never experienced, the situation, and therefore cannot seriously raise such criticism.

In the same way, a person who is situated within particular circumstances is the only one who fully understands them. The circumstantial element of Jewish law is entrusted only to him. Criticism and suggestions can deal mainly with its eternal part, with the general principles and their interpretation, but the meaning of the circumstances is entrusted only to the one who is inside them and experiences them directly. Let us now describe another situation that illustrates this point. A young rabbi serves in a certain community and encounters a difficult problem. He goes to consult his teacher, who is older than he and lives in an entirely different social and cultural environment. In many cases the older rabbi senses that the situation is not clear to him. He does not fully understand the meaning of the matter, and especially the significance of the various possible decisions for the members of the young community. In such a case he chooses only to advise his student and not to decide for him. This is not merely a desire to magnify the younger rabbi's standing; it is a sober recognition that the one consulted does not always understand the situation to which the question relates. In such a case he must display great caution when he comes to rule, and it is preferable that a local rabbi who knows the circumstances well do so, even if his Torah stature is lower. The older rabbi can lay out before him the principles and principled considerations he must take into account, but the decision as to their weight and which overrides which is entrusted only to the one on the ground.

For example, let us assume purely for purposes of discussion that there is no intrinsic prohibition in hearing a woman sing, and that the problem exists only because of the arousal it may provoke. If that is so, then the question whether it is permitted or forbidden to listen to a female singer on the radio, or even in concert, requires an understanding of what such a voice means in a given place and time, and for a given sort of audience. What does such singing evoke in the listeners? Why do they come to hear it? To what extent does it carry sexual or immodest connotations? And so forth. A rabbi who has never experienced this and does not understand its meaning for the questioners will not always be able to make the decision for them. The same is true regarding the status of women in the community and the community's conduct on such matters. The weight of the circumstantial component in such decisions is decisive, and therefore it is important that they be made by one who is deeply familiar with the situation as it really is.

This is a reflection of those two parts of the "judgment of the community" of which we spoke above. The older rabbi is an expert in the eternal and principled component, but in practical ruling it is no less important to understand the second component. And here specifically the advantage lies with the one who lives in the circumstances and experiences them directly, even if his Torah knowledge is less. The knowledge can be conveyed to him, but the direct understanding of the situation is very hard for him to convey to his teacher. Therefore it is preferable that the younger rabbi specifically make the decision.

I would add that in extreme cases in which the discussion concerns a transgression undertaken for the sake of Heaven (see Nazir 23a), the one who makes the decision is an ordinary person who is present on the spot, not a Torah scholar or an eminent decisor. This is a more extreme case still, in which a circumstance-dependent decision is made, and it is not entrusted to the greatest decisor; in that case it is not entrusted to a decisor at all, but to an ordinary person. Even if someone were to ask a decisor, since these are extreme cases unfamiliar to him, sometimes he would be forbidden to answer and decide. In such extreme situations, it is sometimes better that the decisor advise rather than decide.

The Uniqueness of the Holocaust

The period of the Holocaust and the halakhic creativity produced within it emphatically and unmistakably require a distinction between these two components. On the one hand, a decision on a particular question in such a catastrophic time cannot simply be derived from the halakhic basis that was created in normal times. There is no avoiding consideration of constraints of time and place the likes of which had never existed. Therefore these decisions were made by the people who were present in that time and place, and it is likely that in many cases they could not have been made by decisors who did not know the situation. But by that same token, and for that same reason, these rulings do not necessarily serve as precedent for cases that will arise in the future, since those will generally occur and be discussed in utterly different circumstances. Admittedly, as we saw above, one can indeed learn methodological lessons from them. And sometimes they can illuminate all of Jewish law in a different light, one that would not be visible to those who act and live under normal conditions.

The question that arises here is how to distill from them the pure part that deserves, and is able, to join the general halakhic corpus and be transmitted onward in the tradition of the generations. What in these decisions nonetheless has general force? We must analyze the decisor's line of thought in making the decision, and try as far as possible to understand his considerations. In such cases the decisor does not always say explicitly what underlies his rulings, and sometimes it may even be that he himself is unaware that he is mixing in considerations of the distress of time and place or relying on them implicitly.

In the following sections of the essay we will examine two examples that will illustrate what has been said thus far.

B. First Example: Monetary Law in the Kovno Ghetto[3]

Introduction

The topic arose from a series of articles written by Rabbi Yitzhak Elhanan Gibraltar and published in the Sabbath supplements of the newspaper Yated Ne'eman in 5763. The articles deal with his father, Rabbi Shraga Feivel Gibraltar, who was among the greatest Torah scholars in the ghetto and, after the Holocaust, a rabbi in Italy. The author, Rabbi Y. E. Gibraltar, was a child in the ghetto in those days. At the head of the ghetto community stood Rabbi Avraham Dovber Kahana Shapira, author of Davar Avraham, of blessed memory. The historical situation and the dilemmas bound up with it raise a discussion touching the roots of human life, monetary law, and the service of God in general. The series of articles was not halakhic but historical, yet grave halakhic issues arose within it. In the course of the discussion, a response was published criticizing the monetary rulings, and after some time I myself wrote an article rejecting that criticism. The basis of my words was the rule, "Do not judge your fellow until you have reached his place," but this time in the plainest literal sense. This was not mere apologetics or charitable interpretation on behalf of those who err and sin, but a claim about the truth itself. I noted there that I was writing these words as a memorial light for the souls of the holy martyrs of the Kovno Ghetto, may God avenge their blood, at whose head stood the great genius, author of Davar Avraham, whose soul departed in purity in the ghetto (Sunday, 23 Adar I 5703).

First Example

In the Bechukotai supplement issue (5763), the case of the Jews of Jonava is described. The Lithuanian partisans murdered all the Jews of Jonava except for about 350 who remained alive. The rabbi of Jonava, Rabbi Nahum Ginzburg (author of Makor Barukh), came to the Kovno Ghetto, itself already in a terrible state, and brought the partisans' demand for a ransom of one hundred thousand marks to redeem the remaining Jews of Jonava. Once ransomed, the Jews of Jonava were to join the Kovno Ghetto, which itself suffered severe want and distress, and this of course would greatly burden the survival of those already there.

The Judenrat administration refused, on understandable grounds (danger to life for those who would pay, the prohibition on redeeming captives for more than their value, and other risks; see there). By contrast, the great scholar, author of Davar Avraham, rabbi of Kovno, ruled that there was an obligation to give the money. One must understand that there money was life, literally. There was terrible starvation and mortal danger at every moment. The author of Davar Avraham himself compared it to the discussion in Bava Metzia 62a, where Rabbi Akiva and Ben Petora disagree:

"Two people were walking on the road, and one of them had a flask of water. If both drink, both die; if one drinks, he reaches settlement. Ben Petora taught: Better that both should drink and die than that one should see the death of his fellow. Until Rabbi Akiva came and taught: 'and your brother shall live with you'—your life takes precedence over your fellow's life."

In the Jonava case, the money was analogous to the flask of water, and therefore, since we rule like Rabbi Akiva, the seemingly required conclusion is that the money should not be given. Nevertheless, the author of Davar Avraham held that here we are dealing with lives sustained entirely by open miracles at every moment, and in any case the Holy One is saving them only by miracles. In such a state, the money must be handed over.

Already here one can see an exercise of judgment that is very hard to accept from the external halakhic perspective of someone outside the situation. The author of Davar Avraham, as one situated on the spot and required to make a specific decision, determined that although the law had been ruled in accordance with Rabbi Akiva, that law did not apply under those circumstances. Here too an objective critic can argue against him that he acted against the law and in fact caused the loss of Jewish lives on the basis of mere conjecture. Since when do we act on our own analogies? But it seems that this argument resembles the criticism we saw of Abraham's conduct at the Binding, or the criticism of a blind man directed at one who sees. One who does not know the situation cannot understand or decide whether that law applies under those circumstances or not. There is here something akin to divine inspiration (not in the transcendent sense, but only as a metaphor)[4] that is entrusted only to one who is inside the situation.

On the other hand, precisely because of the extremity and uniqueness of the circumstances, this decision cannot join codified Jewish law and enter the Shulchan Arukh. Admittedly, one might try to carry out a halakhic analysis of the reasoning of the author of Davar Avraham and insert the conclusion as a section in codified law. For example, one might add to the Shulchan Arukh a legal section establishing that where existence itself depends on miracle this law changes. But it seems that decisors do not tend to do this, and they leave such matters as a ruling for its own time, somewhat analogous to a transgression undertaken for the sake of Heaven, though here it is unlikely to speak of a transgression at all—quite the reverse. The basis of the matter lies in this very point: in a law of this kind, the decision is not supposed to be found in law codes and made by the greatest decisors, but by the person who is on the spot, even had the author of Davar Avraham not been one of the greatest decisors.

Let us add that the author reports there that the people of Kovno handed over the pennies they had obtained by the last effort of their lives in order to save the Jews of Jonava. These joined the Kovno Ghetto (except for their rabbi, who was murdered by those same partisans immediately after he had collected the money, may God avenge his blood), and some of them survived and remained alive after the Holocaust, and even immigrated to Israel.

Three Approaches to Monetary Law in the Ghetto

In the Nitzavim-Vayeilekh supplement, the author describes a discussion that arose regarding the property of those murdered in the ghetto. Most of the public regarded the property of the murdered as ownerless, like property irretrievably swept away by the sea, even if the murdered had heirs outside the ghetto (if there were heirs inside the ghetto, the practice was to give it to them). This attitude is understandable, for there is no clearer case of irrevocable loss than a situation in which there is a Nazi order to gather the property and register the inventory, together with a prohibition on anyone touching it, punishable by death. Add to that the mortal danger produced by the terrible cold and distress.

Rabbi Mordechai Pogramansky, however, had a different approach. He refused to use a coat from that property, even at the cost of danger of death from cold. What justifies such a ruling? On its face, it too stands in direct contradiction to the "normal" law. The similarity to the previous ruling is obvious. Here too one can raise various possibilities, but it is likely that they would not join the Shulchan Arukh itself and would remain special laws for their own time and hour.

Rabbi S. F. Gibraltar had a third approach. In his view, the concept of "private property" lapses in the ghetto. No one has ownership over property, even property that had been in his possession from before the war. Here I will try to enter more deeply into a halakhic analysis of the matter, which will better clarify the relation between the temporary and eternal components of this decision, and especially the light it casts on Jewish law in general—something not visible to eyes situated within the normal conditions of life.

As noted, the article that reports these matters is not halakhic, and therefore it is not clear how precise it is in presenting the halakhic reasoning for this approach. Several different formulations appear there, and they are not necessarily identical:

1. A Jew in the ghetto, whom any Lithuanian child was permitted, and even commanded, to kill at any moment, is already a dead man, and a dead person has no ownership over property. Life in such a state is not similar to that of a person being led to the gallows, for he can still instruct that his property be distributed, and there is even a chance that the king may mitigate his sentence.[5]
2. For ownership of property to exist, some minimal form of life is required. If life is entirely abandoned to lawlessness, there is no ownership of property, and one's property too is ownerless.
3. There also appears in the issue for Parashat Pinhas 5764 (not necessarily in this context) the consideration that one may not benefit from miracles—not only from property saved by miracle, but even from life itself. This relates mainly to benefiting from money that remained in people's hands after the Holocaust.

As emerges from his words (mainly in the article in the Nitzavim issue), Rabbi Gibraltar held that anyone could take another's clothes or bread (the implication for the ruling in the Jonava case will be discussed below). But on that basis it would seem difficult to understand what appears in his name in the aforesaid Pinhas issue, namely that if there are relatives within the ghetto itself, no one has permission to take the property. Clearly that was the practice there, but it is not clear how this fits with the conception that there was no ownership there at all. It is also clear from his words that this was not an expropriation of property as an emergency public enactment (by virtue of a court's power to declare property ownerless, and the like). Another formulation also appears there: "According to his halakhic approach, all ownership over property in the ghetto lapsed, except for what was physically in one's hand." Again we see that the expropriation was intrinsic as a matter of law, but it applied only to what was not in one's possession.[6]

And in the Pinhas issue there appears another consideration of Rabbi Gibraltar: if someone stole money from another, it was as if he had murdered him, since there money was life itself (this is the assumption underlying the analogy of two people walking in the desert. It is well known what the Hazon Ish wrote on this in Bava Metzia, Likutim, sec. 20, on 62a, that although it is a case of danger to life, one person is not permitted to rob the water from the other, because taking it is tantamount to murder). This implies that what is physically in Reuven's hands is forbidden for Shimon to take from him—but not by the law of theft, rather by the law of murder. It seems that this also explains the above distinction between what is in one's hand and what is not (as will be clarified below).

It is worth noting that Rabbi S. F. Gibraltar applied his conception after the war as well, and stringently. When people came to him who owed him money from before the war, he refused to accept it, arguing that in the ghetto ownership of property had lapsed, and all obligations toward him had accordingly disappeared. Gifts, he added, he accepts only from the Master of the Universe…

An External Challenge

In the Ha'azinu supplement (early 5764, issue 2), a letter was published discussing the halakhic points raised by the article, and throughout its length it rejected out of hand Rabbi S. F. Gibraltar's halakhic approach. The author (Rabbi Gibraltar the son), in his reply in the issue for Parashat Pinhas, wrote that someone who was not there cannot examine and judge these halakhic claims. There are halakhic intuitions that cannot be explained to one who has not himself experienced the situation. The personal experience creates immediate intuitions about what Jewish law demands in the situation under discussion, especially in a condition so incomprehensible and exceptional. One who does not understand and feel what it means to live as an already dead man, and what relation and trust a person has to his property and to his life in such a state, cannot judge. This is precisely our claim in the first part of this essay. An external challenge to such rulings resembles the criticism of a blind man directed at one who sees. It seems to me that such rulings should be treated as a kind of decision born of divine inspiration, entrusted only to one who is inside the situation, and that his words are testimony rather than an ordinary legal ruling. As noted, only one who experienced the matter can rule about it. This was Torah learned—and even fulfilled—under unbearable pressure. The rabbi who wrote that letter discussed these matters as though they had been uttered under ordinary human conditions, and that was not so.

Even so, although the claim that one cannot judge is correct (and one must read the material to understand just how correct), we are still not exempt from attempting to understand this unique testimony concerning that part of Torah that was given only to those who found themselves in that situation, in order to learn from it the eternal meanings. The discussion touches the foundations of the monetary laws in Jewish law, and this is not the place to expand at length. I will therefore be very brief and focus only on what is required for our purposes here. I will propose only my conclusion regarding the main principles and foundations of the matter, according to my limited understanding.

Possible Understandings of Rabbi S. F. Gibraltar's Ruling

Let us begin by noting that the author himself says (in the Pinhas issue) that there is no clear source in the Talmud and the decisors for his father's view, but that while immersed in that terrible situation he felt that this reasoning was correct. If so, it seems that it will be difficult to ground his words in a halakhic basis belonging to the eternal and pure component of Jewish law. We must therefore look for a novel line of reasoning from which this halakhic approach emerges.

In my original article I proposed several simpler halakhic possibilities, as preliminary probes into that "testimony," and I explained why it did not seem that any of them was what he had in mind, and also why each of them was apparently incorrect. Among other things, I showed why the reasoning of an "already dead man" cannot be understood literally in these cases, and why this is not a matter of abandonment or despair (of life or of property). I also examined the possibility that the property belonged to the Nazis by right of conquest in war, and rejected that as well. Another possibility that I rejected was the suggestion that the inability to use one's property removes ownership over it. Here I will suffice with presenting my conclusion there (that is, what seems to me the more plausible explanation).

The Irrelevance of the Concept of "Ownership"

From Rabbi Gibraltar's wording it appears that his claim is that when there is no normal life, ownership of property simply does not apply. In such a state the very concept of "ownership" is irrelevant. One must carefully distinguish this possibility from all the previous ones. Earlier we sought a line of reasoning that would permit a particular person's property in a particular situation (each person separately). We saw that even a person standing on the brink of death does not thereby render his property ownerless. But here the claim is that the concepts of ownership themselves do not exist in certain situations, not merely that a particular ownership has lapsed. The lapse of concrete ownerships is a consequence of a state in which the concepts of "ownership" are irrelevant. In situations like the ghetto, ownership as such simply does not apply, and therefore concrete ownership of assets does not apply either. One could say that this is a "change in the lawbook" itself, not a change in the status of this person or that. In effect, almost the entire civil-law section of the Shulchan Arukh is erased.

This explanation can be understood in two different ways, and both may be correct (in my humble opinion Rabbi Gibraltar's original intention seems more in the direction of the first, though the second too may be true):

1. One can understand the claim as referring to the metaphysical concept of ownership. When a person is not regarded as alive in the ordinary legal sense, even if he is not literally an "already dead man," then the concepts of ownership do not apply to him. Note carefully: it is not that his ownership over his money lapses (as in the previous possibilities), but rather that the concept of ownership cannot be attributed to him. He resembles (only in the legal sense, of course) an animal, or more accurately a minor (whom it is forbidden to kill, but who is not a full legal entity with respect to acquisitions). In such a state, his property also cannot be transferred to his heirs, for his money lapses from him even though he has not died. Since there has been no death, the law of inheritance does not arise either.

This is not similar to a person led out to execution, whose property is not ownerless, because there is here an implicit assumption that we are speaking of a place in which no one has life in its accepted sense. In such a place, concepts of ownership do not apply. One must of course still try to define more clearly the criteria that distinguish life that constitutes legal personhood from life that does not. In any case, if such a legal definition exists, then a person in the ghetto is a natural candidate to fall under it.

Even so, there is certainly room to discuss why, after the Holocaust, when the same person returns to live like any other person and to be a full legal person in every respect, the obligations that existed before the Holocaust do not revive. It is not clear why Rabbi Gibraltar held that these obligations lapsed irreversibly. One can raise considerations in both directions here, but this is not the place.

2. The previous possibility was personal. It dealt with the status of each of the ghetto's inhabitants individually. But one can also understand Rabbi Gibraltar's claim on the social plane. His claim would then be that in a situation in which anyone may take the life or rob the property of any inhabitant of the ghetto, the concept of ownership has no meaning at all. The practical difference may be illustrated by the case of a convert with no heirs being led to death by bandits. According to the first approach, his property would be ownerless; according to the present approach, definitely not, because the general social situation around him is normal, and the problem is only his own. Let us explain this direction a bit further.

As is well known, Rabbi Shimon Shkop, in the fifth gate of his Sha'arei Yosher, proves that the Torah's laws of ownership are based on a juridical layer that is human and universal, what he calls a pre-halakhic legal order. Only after society defines the legal criteria for determining and applying ownership does the Torah come and apply to a violation of ownership the prohibition of "do not steal," and the other monetary prohibitions.[7]

In light of this claim, one can understand Rabbi Gibraltar's words as follows: when a society conducts itself according to rules of fairness and decency and establishes some body of law for itself, then those laws can serve as the legal background for the Torah's laws that depend on ownership, especially "do not steal." But in a situation in which a society conducts itself improperly, its legal system has no meaning, and even if it defines something that it calls "law," that has no significance. This is just as, according to Jewish law, there is no force to the law of the kingdom when it is not decent—what some call not law of the kingdom but law of brigandage. Thus the wicked Nazi "law" is the law of murderers, and certainly has no halakhic or legal validity whatsoever (the source is Nachmanides' novellae to Bava Batra 55a, and many decisors cite and greatly expand it). It is well known that legal experts themselves already recognized this, and at the Nuremberg Trials determined that Nazi law had had no legal validity at all. They judged citizens and soldiers despite their claim that they had obeyed the law. Certainly, then, Jewish law will not place its seal of approval on such a "law" and suspend the prohibition of "do not steal" upon it. On the other hand, the Jewish community in the ghetto had no coercive power, and therefore had no ability to govern or be considered a sovereign authority in its own right in so catastrophic a situation. We thus have a condition in which there is no valid legal system at all in the ghetto. According to Rabbi Shkop's principle, where there is no background legal order, there are no concepts of ownership. This is another possible explanation of Rabbi Gibraltar's claim.

Clarifying the Novelty in This Claim

It is important to understand that there is a major novelty here, beyond Rabbi Shkop's own words. The main claim in this interpretation is that the Torah's laws of ownership do not depend on some abstract and "correct" legal system that precedes the Torah, for if there were such a system then Jewish law would not depend on what occurs in practice. My claim is that Rabbi Shkop makes the prohibition of "do not steal" depend on the system actually operative in a given place as determined by the ruling authority there. Therefore, where no legal system is actually operative, the Torah's laws of ownership also do not apply.

This seems to depend on an apparent tension in Rabbi Shkop's words at the beginning of the fifth gate, and we will note it here briefly. Throughout the gate he brings proofs from the Talmud and decisors for his principle, but at the beginning of the fifth gate (at the start of chapter 1, and in chapter 2 beginning with "and in my humble opinion") he raises two main theoretical arguments for his claim. He writes there:

Just as the kinds of acquisitions and the laws of ownership in property are legal matters even without the prohibition of 'do not steal,' and as we explained above, it is impossible in any way to say that we attribute an object to Reuven because Shimon is warned by the Torah not to steal it from him. Rather, the matter is the reverse: the prohibition of theft comes only after the issue has been determined by the laws that define the boundaries of ownership…

And although at first glance it seems puzzling—what compulsion and obligation can there be on a person to do something without a command and warning of the Torah?—when we investigate the matter closely it can be understood. For the obligation and compulsion to serve God and fulfill His will is likewise an obligation and compulsion grounded in the judgment of reason and recognition; similarly, financial obligation and subjection are legal obligations incurred through the modes of acquisition…

Two main arguments emerge from these words of Rabbi Shkop:

1. The prohibition of "do not steal" is a prohibition against harming ownership. But for this prohibition to have meaning, we must first define the concepts of ownership themselves. Only after those concepts are defined can we say that one who violates them also transgresses the prohibition of "do not steal" (in addition to the juridical prohibition).[8] Rabbi Shkop rejects out of hand the possibility that the parameters of ownership were given together with the prohibition of "do not steal," both by halakhic proofs and by pure reasoning. Nowhere do we find such a definition; everything is determined by the reasoning of the sages, who estimate it according to juridical fairness.
2. The force of the obligation to obey that legal system exists even without command. Rabbi Shkop's reasoning is that even the force of the obligation to serve God in general is not derived from a command (for the duty to keep a system cannot itself be a detail within that same system).[9]

The first of these two arguments could make do with a theoretical legal system. That is, even if no legal system is actually operative, the prohibition of "do not steal" could be defined on the basis of some theoretical legal system determined by considerations of universal juridical logic. But the second argument, according to which there is an obligation to obey that legal system, does not plausibly exist in the absence of a system actually in force. Does the theoretical legal system itself bind at the juridical level even in the ghetto? In lives as turbulent, cruel, and beast-like as those lived there, a legal system has no meaning, and there is no obligation to act by it. If so, it follows at least that even if a theoretical universal legal system exists, in the conditions of ghetto life there is no legal system that binds us. There is therefore strong reason to say that the halakhic rules of ownership also do not apply in such a state.

To sharpen the novelty at this point, let it be said that according to this suggestion, in a place where the law of the kingdom is actually in force regarding monetary law, it is that law that will determine the parameters of ownership even for the Torah's own laws of ownership. That is, it is not the theoretical legal system that stands in the background of the prohibitions of theft, but the real, actual system in force in practice (provided, of course, that it meets the basic standards of justice). Admittedly, this itself requires clarification and probably depends on various disputes, but this is not the place.

In the original article I elaborated and sharpened these points further; the interested reader may consult it there.

Money as a "Flask"

I will now comment on what follows from these proposals regarding the law of two people walking in the desert with one flask of water. As noted, the author of Davar Avraham opened his discussion by comparing the Jonava case to two people walking in the desert with a flask of water, but in the end he ruled opposite Rabbi Akiva: the "flask" should be handed over to save the Jews of Jonava. As we have seen, Rabbi Gibraltar's view is that the "flask" (= the money) belongs to neither of the two. Of course, that does not mean it belongs to the Jews of Jonava; only that it has no ownership at all.

One should note that the issue here was whether there is an obligation to hand it over, or even whether it is permitted at all, not whether the Jews of Jonava may take it from the Jews of Kovno. Therefore it is possible that the halakhic determination that the money is ownerless helps only with respect to permission (though, of course, not obligation) to give it. For if the flask belongs to Reuven, he may not hand it over to Shimon, because his own life takes precedence.[10] In other words, this does not ground an obligation to give the money, but it may ground permission to do so.

However, as we have seen, Rabbi Gibraltar held that money physically in a person's possession, though not legally owned by him, is like his own body (an organ on which the soul depends). If so, even if a person has no ownership over the money, it would still seem forbidden for him to give it away, since a person may not lose his own life in order to save the life of his fellow.

According to his son's testimony (Nitzavim issue), Rabbi Gibraltar understood the ruling of Davar Avraham itself in just this way (as against Rabbi Pogramansky, who was careful not to benefit even from the property of the murdered). He wrote:

"But then came the ruling of the great sage of the generation, our master Rabbi Avraham Dovber Shapira of blessed memory (= the author of Davar Avraham): indeed, there is no ownership of property in the ghetto and everything is ownerless, but there is another law—'do not stand idly by your neighbor's blood'—terrible and awesome. If you can save life with your own life and remain alive, you must endanger your life and save."

At first glance there is room to understand the ruling on the pure halakhic plane (as the aforementioned critic understood it in the Ha'azinu issue), and not as Rabbi Gibraltar did. Either because this is a case of uncertainty versus certainty, and according to the opinions that permit a person to put himself into danger in order to save his fellow; or because one might say that where both Jews are already in uncertain mortal danger from a third party (not from thirst but from the Nazis and Lithuanians), then the rule that "your life takes precedence" does not apply, since the lives of both will probably not be saved even if he keeps the flask for himself. But from the language of the article it appears clearly that Rabbi Gibraltar understood that this ruling was not the product of ordinary halakhic reasoning, but was based on the need to be worthy of miracles, for only they would save the Jews of the ghetto from death in such a condition (and without that it would not help them even if they kept the money in their hands). Here again the circumstantial kind of divine inspiration enters, standing in tension with criticism based on the eternal and principled component of Jewish law.

Jewish Law within States of "Fire"

In this connection it is worth bringing other rulings of similar force by the author of Davar Avraham (issue for Parashat Bechukotai), who forbade everyone legumes in the ghetto amid cold and starvation unto death, and forbade eating horse meat only to yeshiva students (as an act of self-sacrifice for the sake of the rest of the public), even when their lives were in danger. In his view, the community had to display self-sacrifice in order to merit miracles, for only those would save them in their condition. The wording of the author of Davar Avraham was: "From the point where exemption ends, self-sacrifice begins." Thus he said, but he warned: "not to lose one's life," and only a hair's breadth separates the two. Let us add here that, as is known, the author of Davar Avraham himself decided, while ill, not to join his son in America but to return to his community in Kovno. He was also the only person in the ghetto who did not remove his beard, and he was prepared to be killed for this. See his son's introduction to volume 3 of Davar Avraham.

If our words are correct, their meaning is that in a state in which we are under palpable threat of death, the ordinary halakhic rules are suspended. Not only does the concept of "ownership" lapse, but many other rules as well. As an illustration for someone standing "outside," let us imagine a case in which a community is living literally inside a fire (= "the town is burning"). It burns fiercely and consumes them each day and at every moment. Even if there is some chance of rescue, does one in such a state discuss ownership of property at all? Do rules of precedence remain valid inside the flames? It is quite clear that one who lives within the fire will decide law in ways that do not really fit what is written in the Shulchan Arukh, and of course such decisions will not appear reasonable to a decisor who observes the situation from outside.

It is worth recalling here the distinction in Tosafot, s.v. "zarak," Bava Kamma 17b,[11] where they distinguished between a vessel already on its way to the ground—which is already considered a broken vessel, because the destructive force is already within it—and a case where an arrow is shot at the vessel, where until the arrow strikes the vessel is considered whole.[12] The Jews in the ghetto are like an infant thrown from the top of a roof (with a slim chance of being saved by a total miracle, and a greater chance that someone else will kill them with a sword before then). During its fall downward, when the force of destruction is already within it and threatens to consume it, does it calculate monetary law and rules of precedence? The question before the sages of the ghetto was whether their condition resembled that of the vessel awaiting the impact of the arrow, or whether they were already in downward flight and like a broken vessel, such that only a miracle could save them. The essence of what emerges from the "testimony" of the author of Davar Avraham (according to Rabbi Gibraltar's interpretation) is that they understood their situation in the second way, and therefore what determined matters there were considerations such as what must be done in order to merit a miracle.[13]

On the other hand, halakhic and Torah considerations still existed and were still being made. For if all Torah were, Heaven forbid, annulled, then what place would there be for considerations of sanctifying the divine name, miracles, and the like? Clearly, only part of the ordinary parameters of Jewish law—such as people's monetary rights and perhaps even ordinary considerations of danger to life—may be suspended or changed, but broader Torah considerations are certainly still operative. Such is the testimony.

Summary

Thus far, then, a possible analysis of the rulings of Rabbi Gibraltar and the author of Davar Avraham. The situation in the ghetto is the most extreme realization of the gap we described in the previous section between a decisor—or even an ordinary person—who is inside a particular situation, and one who observes it from outside. That gap was not clear to the aforesaid critic, who did not understand that when the condition is so extreme and so far removed from anything familiar to him, he should have treated these words as testimony rather than as the expression of an ordinary halakhic position.

As we saw in the previous section, just as these decisions were difficult to derive from the eternal component of Torah, since the circumstances, time, and place played a critical role in them, so too it is difficult to attach them to the body of law transmitted onward to later generations. Following the brief analysis presented here, one might have thought to add to the Shulchan Arukh a section dealing with states of "fire." Seemingly, eternal lessons can be distilled from here. And yet it is entirely understandable why no decisor would do so. The way of Jewish law is that decisions of this sort remain as Oral Torah, or as part of "the fifth section of the Shulchan Arukh," and are not established as fixed and binding law for future generations. One reason for this is that there are no objective criteria by which to assess when we are in such a state. The meaning of this is an acknowledgment that such a question is entrusted only to decisors who are themselves inside the "fire." It depends essentially on circumstances and meta-halakhic considerations, and less on the eternal principles of Jewish law. It is therefore clear that the question of what is correct to do in such states is entrusted only to them. There is no point in setting down eternal and universal rules here, and those standing outside can only receive these words as testimony and try to understand them after the fact.

Even so, looking at them and analyzing them as a kind of testimony contributes greatly to a decisor who must cope with varying situations, even if they differ fundamentally from the extreme situations described here (states of "fire"). This is an example of the contribution made by the temporary component of specific rulings, which joins the eternal component of Jewish law on the methodological plane, as described in the previous section. One can also see here the most basic understandings of monetary law that arise from this testimony. Under ordinary life conditions it is difficult to reach such insights, despite their eternity.

C. Second Example: Changing One's Place of Work Because of Danger to Life

Introduction

In this section we will examine a typical responsum of Rabbi Ephraim Oshry (also from the Kovno Ghetto) in his responsa collection Mima'amakim, which deals entirely with halakhic questions arising from the inferno. This is responsum no. 5, which discusses the possibility of changing one's place of work to a job involving transgressions in order to improve one's chances of survival. The text of the responsum is brought in full at the end of the essay, although we will not enter into all its details, in order to allow the reader to understand and evaluate the remarks I make here.

The Question

This is the questioner's wording:

"These things I remember and pour out my soul within me: in the days of the accursed wanton sinners there was no hope for us, and every single day more than a thousand people were taken out of the ghetto to be worked mercilessly at the airfield and tortured with hard labor. And behold, my student, the late Mr. Yaakov, came before me with the following question. He had the possibility of entering work in the kitchen, at the station where the black soup was cooked, made from beans, which the Germans distributed to the Jews together with one hundred grams of bread per day. However, there was one great obstacle: there he would be compelled and forced to work at cooking even on the Sabbath. But since by doing so he would be saved from the hard forced labor at the airfield, which destroys the soul and breaks the body, perhaps there is here also an issue of danger to life, for by being saved from hard and exhausting work and being able to eat and satisfy his hungry soul with the black soup as much as he desires, his body would become stronger and he could hold out so that the general hunger prevailing in the ghetto would not destroy him. He further asks whether he himself would be permitted to eat on the Sabbath from the black soup that he cooks on the Sabbath."

The question is whether it is permitted to change one's place of work to labor involving Sabbath desecration, and to violate the prohibition of benefiting from labor performed on the Sabbath, in order to improve one's chances of survival.

Already here one can see a severe difficulty. According to the law, we rule that deriving benefit from labor performed on the Sabbath is a rabbinic prohibition. Could one seriously imagine even the slightest doubt that this would be permitted and proper from the outset? Could one seriously imagine entering into a grave danger to life because of the prohibition on benefiting from labor done on the Sabbath? Even regarding Torah prohibitions such as cooking, it is hard to understand what the doubt is at all. But the question regarding rabbinic prohibitions certainly cries out for explanation. An outside observer cannot understand this. And yet the respondent opens with a comprehensive halakhic discussion (it is reproduced in full in the appendix). The very fact that he conducts it, and the order in which it appears, teach us a great deal about his orientation, and in fact also answer the difficulties we have raised here.

The Structure of the Responsum and the Difficulties

From reading it, it emerges that Rabbi Oshry's responsum is divided into two parts (these were marked by me in the text of the responsum in the appendix). The first deals with a halakhic discussion of deriving benefit from Sabbath prohibitions, and the second offers an interpretation according to which even the labor prohibitions (cooking) in such a case are only rabbinic prohibitions (he relies on opinions among the decisors that labor performed under coercion in order to save oneself is a labor not needed for its own sake). In the first part he presents at length the various views of the decisors regarding the prohibition of benefiting from labor done on the Sabbath, and in the second he analyzes the views of the decisors who maintain that escaping coercion counts as a labor not needed for its own sake. He raises objections and resolves them in the manner of Torah discussion.

All of this discussion is very puzzling, since we are dealing with a situation of danger to life. What place is there for all these fine scholastic distinctions? It is obvious that any prohibition whatsoever, whether Torah-level or rabbinic (apart from the three cardinal sins), is permitted where life is at stake.[14] The matter is even more puzzling in light of what Rabbi Oshry himself writes at the end of the responsum, when he summarizes the practical conclusion:

"Returning to the law: from all the above it seems to me that one should permit the questioner to work at cooking on the Sabbath in the kitchen, for in any case the accursed evildoers would force him to work at forced labor on the airfield on the Sabbath. If so, what practical difference is there to us in what sort of labor he will be compelled to desecrate the Sabbath—whether some other labor or cooking? In either case he will not violate a Torah prohibition, for since he desecrates the Sabbath under coercion this is a labor not needed for its own sake, which is prohibited only rabbinically; and in our case even rabbinically it is not forbidden because of the mortal danger involved.

Therefore it certainly appears that he is permitted to work at cooking on the Sabbath, for by this means he will also have a little food to restore his soul. And there is likewise no prohibition whatsoever upon him to eat the black soup that he cooks on the Sabbath, for in such a case everyone agrees that labor done on the Sabbath is not forbidden as an object of benefit, since this eating involves the saving of life. And all the more so other Jews are permitted to eat this soup that he cooks on the Sabbath for the same reason, for the saving of life is of such great importance that it overrides the Sabbath, since the strength of endurance of these poor people had already entirely failed and they were literally wasting away from hunger and want. Therefore it is certainly permitted for them to restore their hungry souls with this soup, though it was cooked on the Sabbath."

Well then—if this is a case of danger to life that permits everything, then there is in fact no practical consequence to the entire discussion conducted above. Why, then, conduct it? Why does it matter whether labor done on the Sabbath is rabbinic or Torah-level, and whether this is a labor not needed for its own sake or not (itself not a simple question, but this is not the place), if in the end everything is permitted outright by the law of danger to life? In truth, what should have been written in this responsum is one sentence: obviously everything is permitted without any doubt whatsoever because of danger to life, or even possible danger to life. It does not seem there was any need to add even a single further word.

The Meaning of This

First, we must note that the responsa in Mima'amakim were written after the Holocaust, not at the time when these decisions were made. But according to Rabbi Oshry, the writing merely detailed and explained the process of decision-making that had taken place inside the inferno. Therefore the above difficulties remain fully intact, for even after the Holocaust it would have sufficed to write that everything is permitted where life is at stake, and no more.

One might also have said that for one living in the inferno, the parameters of danger to life change. The degree of risk that counts as danger to life is not fixed in Jewish law. And if one lives in a state where danger is part of life, then the parameters of danger to life become more stringent, that is, a greater danger is required in order to count as danger to life that overrides the Sabbath. If so, perhaps Rabbi Oshry wanted to investigate whether there truly was danger to life here, and to examine whether one might permit the matter even on the assumption that it was not a case of danger to life. But this too does not seem to emerge from his language, for he does not deal with clarifying that question at all, but with ordinary halakhic questions. Moreover, we saw that in his conclusion he determines that it is indeed a case of danger to life, thereby rendering the whole responsum unnecessary.

It seems that Rabbi Oshry conducts this discussion for a completely different reason. Let us imagine that the responsum had indeed been given as we suggested above: everything is permitted because of danger to life, end of matter. The meaning of this would be that within the "fire" no trace remained of the entire Shulchan Arukh. Jewish law itself would cease to be relevant to the lives of the Jews in the ghetto and the labor camps. Such a state seems to have been intolerable to Rabbi Oshry. True, as a matter of law everything was permitted, but he did not allow himself to write such a responsum. Instead, he composed a detailed responsum on all the views in the topics under discussion, even though he himself makes clear at the end that none of that discussion is actually relevant to the decision. The appearance of halakhic decision-making was more important to him than the decision itself.

Such a consideration too is entrusted only to decisors who are inside the inferno. It may be that in the condition in which they found themselves, the decision would be to sacrifice one's life even for rabbinic prohibitions, somewhat like the reasoning of the author of Davar Avraham not to violate even prohibitions concerning legumes or other rabbinic prohibitions in order to merit miracle and rescue. In the present case too Rabbi Oshry might have thought that, in the situation in which they found themselves, the ordinary permissions of danger to life did not apply, and he might therefore have been stringent and refused to permit violation of rabbinic or even Torah prohibitions even where life was at stake. Such a decision, too, is not open to outside criticism, because one who stands there simply does not understand the situation. This of course also cannot join the pure component of Jewish law that passes to future generations, for we are dealing here with a decision akin to a transgression undertaken for the sake of Heaven—only this time stringently rather than leniently. One adopts stringency in a place where one is forbidden to do so, and does so for the sake of Heaven.

A somewhat different possibility is that for one living inside the "fire," those are ordinary life conditions. He does not perceive the situation as exceptional and catastrophic in the way it appears to us who live outside it. From his point of view, this is life, and the application of Jewish law to his life is naturally required. If we were to live our ordinary lives and treat them as a state of danger to life, the whole of Jewish law would disappear. The perspective of one who lives in such a state is that this is life, and all the ordinary halakhic considerations must be applied to it. Only one for whom such a condition is exceptional sees it automatically as danger to life. By way of analogy, decisors have written that acts people ordinarily do, even though danger is involved in them, are permitted. For example, smoking cigarettes or driving on the road. Someone living in a different reality who had to express a view on driving or smoking might straightforwardly forbid them, and would not understand those who permit them. But we, who live inside the situation, feel that ordinary people do not view this as extraordinary danger but as a reasonable risk that people regularly take. From our perspective, then, this is not a case of danger to life. For those who lived daily inside the Kovno Ghetto, that was the ordinary state of things, and therefore perhaps from their perspective there was no automatic way of looking at it as danger to life. There was still room for the sort of exacting halakhic discussions we saw. Admittedly, in the end Rabbi Oshry too concluded that this was indeed a case of danger to life that permitted those prohibitions, but at least one can say that from his perspective this was not self-evident. The ordinary halakhic discussion was not absurd and had to be undertaken.

D. The Main Lesson That Emerges from Our Discussion

We began by distinguishing between the "judgment of Heaven" and the "judgment of the community." Within the "judgment of the community," that is, the Torah that is created by human beings in different times and places, we distinguished between two components: the eternal and pure component (which is not itself entirely "the judgment of Heaven"), as against the circumstantial one. We saw both the differences and the complex relation between them. The circumstantial is interwoven with the eternal and vice versa, and yet it is important to distinguish between them for several reasons: in extreme situations the decision is entrusted to those who live inside them; criticism is impossible, and at most only retrospective analysis is possible. The circumstantial part does not join the law that will be transmitted onward, but it does contain elements that contribute to the pure law: parts in which a different halakhic interpretation is made, and parts that illuminate the methodological and meta-halakhic dimensions of the ruling and thereby join our conception of Jewish law. We saw that the rule "Do not judge your fellow until you reach his place" is not merely apologetics or charitable interpretation on behalf of those who err and sin, but a claim about halakhic truth itself.

And from a broader and more principled perspective, the example of Rabbi Oshry joins what we saw in the previous section, and together the two illustrate the dominance of the circumstantial component in rulings during the Holocaust and the two sides of the coin described in the first section: on the one hand, the inability to derive such decisions from the ordinary rules of Jewish law; and on the other hand, the impossibility of attaching those decisions to the evolving halakhic corpus that passes to future generations. The advantage of one who lives inside the situation as against the advantage of one whose Torah wisdom in the pure component of Jewish law is greater.

Such decisions remain in the decisor's toolbox, but only as Oral Torah. They will not appear in any code of practical Jewish law, for as we saw in the first section, the authority of a law code cannot depend on circumstances, time, and place. But a decisor can learn much from a halakhic analysis that attempts to ground the specific ruling on foundations drawn from the eternal component of Jewish law. Such cases expose before us boundaries and categories that ordinary Jewish law does not address. In that sense they have great analytical and methodological value, and in extreme cases practical value as well.

It is important to understand that the important and timely practical implication of what we have said concerns less extreme cases. When a decisor faces a situation that he has not experienced and does not understand in its meaning for those taking part in it, he must exercise great caution when coming to decide Jewish law for them. By nature he will do so from the general principles of Jewish law (its eternal, pure component), which is his craft, but at times it will be difficult for him to weigh the circumstantial components correctly. The cautious decisor must be aware of this and understand that he lacks the power to decide and instruct in situations that differ essentially from his own experience and life circumstances. Just as a blind person cannot come with claims against one who sees and trusts his sense of sight, and just as a person who has not experienced divine address cannot challenge Abraham as to why he did not doubt the authenticity of the divine command, so too one who does not know a particular human situation should not issue halakhic rulings about it. Therefore a challenge, such as the one described in the second section, to Rabbi Gibraltar's approach is beside the point.

Of course, in many cases even one who is not situated within a given situation can understand it, get to the roots of the problems, and decide Jewish law. None of us has experienced every kind of experience or knows every kind of reality, and I certainly do not mean to claim that one cannot issue a ruling regarding any situation we have not ourselves experienced. As long as there is sufficient similarity between the situations, that is enough. Here I mean only situations and questions that meet two conditions: 1. the situation in which the question arises differs essentially from the world of the decisor; 2. the question is of such a kind that answering it requires direct familiarity with the reality and circumstances of the questioner or questioners. Given these two conditions, the decisor must ask himself whether he is in fact competent to decide the question, with all the Torah and halakhic knowledge he possesses.

Hearing about the Holocaust is not like living inside it. Understanding modern, open society is not like living inside it. Studying God's command to Abraham is not like the direct experience of such a command. And from this it follows that even in our own reality, which is usually not so extreme, there are still questions in which a decisor must ascertain that he possesses the necessary familiarity with the circumstances before he answers and decides. This is an important and highly timely halakhic lesson that can be learned from a systematic examination of rulings of Jewish law during the Holocaust.

Appendix: Mima'amakim, sec. 5

Responsum:[15]

A. In Hullin 15a we read in the Mishnah: "One who cooks on the Sabbath unintentionally—may eat; intentionally—may not eat: this is Rabbi Meir's view. Rabbi Judah says: unintentionally—he may eat after the Sabbath; intentionally—he may never eat it. Rabbi Yohanan the Sandal-maker says: unintentionally—after the Sabbath others may eat, but not he; intentionally—neither he nor others may ever eat it."

And Maimonides, in chapter 6 of the Laws of the Sabbath, law 23, rules: if a Jew performed labor on the Sabbath and did so intentionally, he is forbidden forever to benefit from that labor, but other Jews may benefit from it immediately after the Sabbath, as it is said, "You shall keep the Sabbath, for it is holy to you"—it is holy, but its products are not holy. How so? If a Jew cooked on the Sabbath intentionally, then after the Sabbath others may eat it, but he himself may never eat it; and if he cooked unintentionally, then after the Sabbath both he and others may eat it immediately. Thus Maimonides rules like Rabbi Judah.

But the Tur, in section 318, rules in the name of Rabbenu Yitzhak, author of Tosafot, that in an unintentional case it is permitted even to him on that very day, and in an intentional case it is forbidden on that day even to others, but in the evening it is permitted even to him—meaning that he rules like Rabbi Meir. Nachmanides, however, decided like Maimonides, and so too the Geonim ruled. And the Shulchan Arukh ruled likewise there in section 318, writing that one who cooks on the Sabbath intentionally is forbidden forever to eat it, while others may do so immediately after the Sabbath; and in an unintentional case it is forbidden on that day even to others.

Now all these great authorities do not mention any requirement of waiting the amount of time it would take to do the act, and this is unlike the view of Rashi, who forbids until that amount of time has passed, as he writes there on the words of Rabbi Judah: "unintentionally he may eat after the Sabbath"—that is, not on the Sabbath itself, and the same for others, for although in an unintentional case there is no liability to stoning, there is still a transgression, and we require the amount of time it would take to do it, so that he not derive benefit from a transgression.

And in Bava Kamma 71a it states: what is Rabbi Yohanan the Sandal-maker's reason? As Rabbi Hiyya expounded at the entrance to the house of the Exilarch: "You shall keep the Sabbath, for it is holy to you"—just as sacred property is forbidden to eat, so labor done on the Sabbath is forbidden to eat. If so, just as sacred property is forbidden even to derive benefit from, perhaps labor done on the Sabbath is likewise forbidden even for benefit? Scripture therefore says "for you"—it shall be yours. One might think this applies even if it was done unintentionally; Scripture therefore says "those who desecrate it shall surely be put to death"—I said this only about one who desecrates it intentionally, not unintentionally. Rav Aha and Ravina dispute the matter: one says the prohibition of labor done on the Sabbath is of Torah origin, and one says it is rabbinic. The one who says it is of Torah origin reasons as above, and the one who says it is rabbinic derives it from the verse "it is holy"—it is holy, but its products are not holy.

Now the Ritva on Ketubbot 34a writes that when Rabbi Judah says that in an intentional case one may never eat it, he means only that the violator himself may not eat it, for no one holds that labor done on the Sabbath is forbidden to the whole world except Rabbi Yohanan the Sandal-maker alone, as appears in that discussion. It follows, he says, that the unintentional case of Rabbi Judah is like the intentional case of Rabbi Meir, and the unintentional case of Rabbi Yohanan the Sandal-maker is like the intentional case of Rabbi Judah. And when the Talmud says that Rav Aha and Ravina dispute labor done on the Sabbath, the discussion clearly shows that they dispute only within the opinion of Rabbi Yohanan the Sandal-maker, who is the one who speaks of labor done on the Sabbath in that sense. But one cannot prove from there that the law follows him, for in the first chapter of Hullin it says that Rav instructed his student like Rabbi Meir and preached publicly like Rabbi Judah—and who is greater than Rav for deciding the law? If, then, the discussion there disputes according to Rabbi Yohanan, that does not mean they themselves agree with him; since the earlier baraita had been set up according to Rabbi Yohanan, it was necessary to explain his reason. And likewise, their dispute arose only because they wished to challenge an earlier explanation. This, says the Ritva, is the correct understanding. It is thus explicit in the Ritva that Rabbi Meir and Rabbi Judah both hold that there is no everlasting prohibition on labor done on the Sabbath, and that Rav Aha and Ravina likewise dispute only within Rabbi Yohanan the Sandal-maker's view, but do not themselves agree with him that labor done on the Sabbath should be forbidden forever.

However, in the glosses of the Mordechai to section 318, subsection 2, I saw that he wrote that for the one for whom the food was cooked, the law is also the same as for the cook himself, as stated in Yoreh De'ah section 99, subsection 5, regarding one who intentionally nullifies a prohibition ab initio: it is forbidden to him and to the one for whose sake it was nullified. Here too the reason is a penalty. Yet from the words of the Beit Yosef there it appears that only in that case do we fear that he will tell a gentile to nullify it, whereas here, in any case, one must wait the time it would take to do it when a gentile cooked it, and with regard to a Jew we do not suspect this, for a person does not sin when there is no benefit for himself. In any event, it emerges from this that one should forbid cooking on the Sabbath for a Jew, since one for whom it was cooked has the same law as the cook himself, as the Magen Avraham writes. If so, in our case it would seem at first glance that he should be forbidden to cook, and if he does transgress and cook, the soup should be forbidden to Jews, since all the labor of cooking in that kitchen is for the Jews who are in distress and captivity within the enclosure of the ghetto.

B. However, in the book Rosh Yosef on tractate Sabbath 72a, it is written that where one is forced to choose one of two things—either desecrate the Sabbath or eat forbidden carrion—he should choose desecration of the Sabbath, because such desecration is under coercion and therefore constitutes labor not needed for its own sake, which is only rabbinically prohibited, whereas if he eats carrion he transgresses a Torah prohibition, since he derives benefit from that eating. The Rosh Yosef there further cites the Penei Yehoshua as disagreeing with Tosafot, who wrote that one who works on the Sabbath because of suffering remains liable; rather, the Penei Yehoshua holds that because of suffering and the like the labor is considered labor not needed for its own sake. He also brings what the Maharsha wrote on Bava Batra 119b regarding the wood-gatherer, that he acted for the sake of Heaven and therefore it was labor not needed for its own sake.

On the strength of these words of the Rosh Yosef, the Maharsham wrote in Orhot Hayyim, in the laws of the Sabbath, section 278, that one can find a basis of justification for Jewish soldiers, since their labor is only rabbinically forbidden because they act under coercion. He brought support from the Maharik, who wrote in root 137 regarding Yevamot 122b, where a gentile says: "Do not kill me as they killed that one," and orders a Jew to cook a pot on the Sabbath—that in such cooking there is only a rabbinic prohibition, because since he does it in order not to be killed by the gentile it counts as labor not needed for its own sake. So too he cites the Talmud in Sanhedrin 74a regarding cutting fodder and throwing it to animals, where again it is deemed labor not needed for its own sake. See also Beit Yitzhak, Orah Hayyim, section 34, which explains why this is indeed such labor.

At first glance, however, one might infer against this from what appears in the Jerusalem Talmud, chapter 2 of Hagigah, law 1: at a time of persecution, when decrees were made against the Jews forcing them to desecrate the Sabbath, and their enemies loaded burdens on them on the Sabbath, the Jews would arrange that two people carry one burden so that they would not violate a Torah prohibition of the Sabbath, since when two people perform a labor on the Sabbath they are exempt. Even though the rule that two people performing a labor are exempt is only an exemption from Torah liability, it remains rabbinically forbidden, as is explained in tractate Sabbath 3a and 4a. If so, what did the Jews gain by carrying one burden together? They did this only in order to save themselves from a Torah prohibition, as the commentators there explain.

Now if it is indeed true that when gentiles force a person to desecrate the Sabbath it is deemed labor not needed for its own sake, then the difficulty returns in full force: why did the Jews need to arrange that two should carry one burden in order to avoid a Torah prohibition? Even if each one had carried his burden alone, he would still not have violated a Torah prohibition, for since the gentiles were forcing him to do so, it would be labor not needed for its own sake, which is not Torah-forbidden. Why, then, did the Jerusalem Talmud write that the Jews arranged for two to carry one burden in order to avoid a Torah prohibition? The category of labor not needed for its own sake exists in the case of carrying as well, as explained in Sabbath 4a. If so, the Jerusalem Talmud would seem to pose a difficulty to this line of reasoning.

But this is not a difficulty, for one can say that those Jews carefully arranged their action so as not to violate a Torah prohibition according to all views. For the issue of labor not needed for its own sake is disputed between Rabbi Judah and Rabbi Shimon: Rabbi Shimon says one is exempt, and Rabbi Judah says one is liable. And there is also a dispute between Rabbi Meir and Rabbi Judah regarding two people who perform a labor on the Sabbath: Rabbi Meir holds that they are liable, and Rabbi Judah holds that they are exempt.

Accordingly, the Jerusalem Talmud is very understandable in saying that the Jews arranged for two to carry one burden, for in that way, whichever way one goes, they would avoid a Torah prohibition according to all views. For even according to Rabbi Meir, who holds that two who perform a labor on the Sabbath are liable, they would still be exempt, since Rabbi Meir holds like Rabbi Shimon that labor not needed for its own sake is exempt; and since the gentiles were forcing them to do the labor on the Sabbath, they were exempt on the ground that it was labor not needed for its own sake, according to the reasoning above. And even according to Rabbi Judah, who holds that labor not needed for its own sake is liable, they nevertheless found a way to be exempt, for Rabbi Judah holds that two who perform a labor on the Sabbath are exempt. Therefore they intentionally arranged for two to carry one burden so that they would be exempt according to all opinions, whether according to the one who says labor not needed for its own sake is exempt or according to the one who says it is liable. Consider this carefully.

And I also saw in Maharik, section 193, in the Pri Megadim section 328, subsection 4, and in the responsa Havot Ya'ir, section 183, that they all maintain that one who desecrates the Sabbath under coercion is considered to have performed labor not needed for its own sake and is prohibited only rabbinically. The coercion of which these great authorities speak is merely bodily coercion—they were forced to work the king's labor. Even so, they concluded that it is prohibited only rabbinically because it is labor not needed for its own sake.

If so, in our case, where the accursed evildoers forced the Jews to work at all manner of hard labor on the Sabbath, and if they did not obey they would kill them with all manner of deaths and tortures, certainly this coercion is coercion of death, and certainly these wretched people may desecrate the Sabbath, for the Merciful One exempts one who acts under coercion. All the more so where there is literal coercion threatening life. Indeed, I saw something even stronger in the responsa Yad Shalom, section 57, which writes that one who is forced by the government to desecrate the Sabbath by a Torah prohibition may perhaps be permitted to do so on the basis of the Maharik in section 137. If so, all the more so in our case, where the coercion is coercion threatening life, it is surely permitted for them to desecrate the Sabbath.

Returning to the law, from all the above it seems to me that the questioner should be permitted to work at cooking on the Sabbath in the kitchen, for in any case the accursed evildoers would force him to work at forced labor on the airfield on the Sabbath. If so, what practical difference is there in what sort of labor he will be compelled to desecrate the Sabbath—whether another form of labor or cooking? In either case he will not violate a Torah prohibition, for since he desecrates the Sabbath under coercion this is labor not needed for its own sake, which is prohibited only rabbinically; and in our case even rabbinically it is not forbidden because of the mortal danger involved.

Therefore it certainly appears that he is permitted to work at cooking on the Sabbath, for by this means he will also have a little food to restore his soul. Nor is there any prohibition on his eating the black soup that he cooks on the Sabbath, for in such a case everyone agrees that the product of Sabbath labor is not forbidden, since there is danger to life involved in this eating. And all the more so other Jews may eat this soup that he cooks on the Sabbath for the same reason, for the saving of life is so great that it overrides the Sabbath, since the strength of endurance of these poor people had already completely failed and they were literally wasting away from hunger and want. Therefore they are certainly permitted to restore their hungry souls with this soup, though it was cooked on the Sabbath.

May the good God save us from error, say to the destroyer, "Enough," and bring us from darkness to light and from bondage to redemption speedily in our days, Amen.

[1] See my article, "Is Jewish Law Hebrew Law?" Akdamot 15, Marheshvan 5765, p. 141.

[2] See, for example, Hana Kasher, "'How Could God Command Us to Do Such an Abomination?' A Critique of the Binding of Isaac According to Joseph Ibn Kaspi," Et Ha-Da'at 1 (5727), pp. 39-47; Shulamit Elizur, Rabbi Elazar birbi Qillir, Kedishtaot for the Day of the Giving of the Torah, Jerusalem 5760, pp. 67-74; Aviezer Ravitzky, "Introduction—The Binding and the Covenant: Abraham and His Sons in Jewish Thought," in Abraham, Father of the Believers: His Figure in the Mirror of Jewish Thought through the Generations, Ramat Gan 2002, pp. 29-38.

The material presented in this section is based on my article, "'How Shall I Curse Whom God Has Not Cursed, and How Shall I Denounce Whom the Lord Has Not Denounced?'" Tzohar 20, winter 5765, p. 9. Here the discussion is abbreviated and adapted to the subject of the present essay.

[4] See Rabbi Margaliot's introduction to Responsa from Heaven regarding the words of the Raavad in his glosses, where he wrote that he ruled on the basis of divine inspiration. Something similar appears in the Tur, Orah Hayyim section 46, in the name of Rav Natronai Gaon regarding the ordinance of one hundred blessings.

[5] There is a similar discussion regarding an informer, that his property too is ownerless. However, the author of Avnei Nezer, Even Ha-Ezer section 2, subsection 28, already wondered about this, and the matter is longstanding.

[6] There also appears there (in a later passage) a doubt whether there is a difference between an obligation arising from a loan, which lapses, and a deposit. It is not clear from his wording, however, whether he means a doubt as to whether, beyond the strict letter of the law, one ought to return the deposit to the depositor (even though he is no longer its owner), or whether a deposit too is considered as being in one's hand and therefore owned by him under the strict law itself.

[7] For a detailed discussion, though not entirely precise, see Avi Sagi's article, "The Religious Commandment and the Legal System—A Chapter in Rabbi Shimon Shkop's Halakhic Thought," Da'at 35, 5755, pp. 99-114.

[8] His words make it clear that the juridical plane is not merely definitional of ownership, as a background to the prohibition of "do not steal," but also has independent normative significance. One who violates it transgresses, besides the halakhic prohibition of theft, a juridical prohibition as well. An implication of this point appears in my article "The Problem of the Relation between the Individual and the Collective and the 'Defensive Shield' Dilemma," Tzohar 14, spring 5763. There I pointed out that Rashi's position in Bava Kamma 60b, that one may not save himself with another's money and then pay, is necessarily based on such a conception (and see there, at the beginning of chapter 3 of my remarks, where I noted that although all the medieval authorities dispute Rashi on this point, the words of many of them clearly imply a similar principled conception).

[9] These matters are also well known in legal philosophy, where many have observed that the duty to obey the law cannot be included within the law itself, for who says that this very law must be obeyed? See, for example, Haim Gans, Obedience and Refusal, Hakibbutz Hameuchad, Tel Aviv 1996 (see there at the beginning of chapter 1, p. 21). See at greater length also in my book (the fourth in the Two Carts and a Hot-Air Balloon trilogy), The Spirit of Law, first part.

[10] This is my assumption here, and such seems to emerge from the plain sense of the Talmud's wording, namely that in such a case there is a prohibition against giving the other to drink. According to Tosafot, however, who disagrees with Maimonides and holds that one is permitted to be killed rather than transgress other prohibitions (apart from the three cardinal ones), it would seem that here too it would be permitted.

[11] Something similar appears in Nachmanides at the end of the pamphlet Dina de-Garmi, where he distinguishes between a case where the damaging process has already begun and a case of mere indirect causation.

[12] It is true that, as is well known, the Ketzot Ha-Hoshen, section 390, subsection 1, thought that the Rosh disagrees with Tosafot on this point; but that is not necessary, and the matter is longstanding.

[13] One should note here the dispute among decisors whether it is permitted to commit a transgression in order to be saved by a miracle. See on this the Birkei Yosef, Yoreh De'ah section 155, subsections 2-3. He brings there proof for leniency from the fact that King David saved the world from the flooding of the abyss by erasing the divine name (see also Otzar Mefarshei HaTalmud to Makkot 11a, though this can be rejected in light of the commentators' dispute there as to whether any prohibition was involved at all). I also heard that there was an incident involving the author of Heshek Shlomo, who sternly forbade traveling on the Sabbath to the Belzer Rebbe so that he should pray for a dangerously ill person, or give him an amulet (though I have not found the source; see Ha-Elef Lekha Shlomo, Orah Hayyim section 118). Perhaps one can distinguish that this is not a case of an infant already thrown from the roof, where the force of death is already operating within him. The prohibition against committing a transgression in order to be saved by a miracle, according to those who hold there is such a prohibition, applies only when the world is proceeding in its ordinary way and only a particular person is in danger. But within a "fire," many Torah laws are suspended and the mode of conduct is entirely different. On this subject too much more could be said, but this is not the place.

[14] One might have argued that this was a time of religious persecution, except that Rabbi Oshry himself at the end of his remarks invokes permission on the ground of danger to life (see immediately below), and does not raise that possibility. It is therefore clear that he did not view this as a time of persecution requiring self-sacrifice for every prohibition.

[15] The division into two subsections is mine, in order to ease matters for the reader and indicate the relevant passages to which I referred in my own remarks.