Dilemmas in Matters of Human Life – Lesson 8
This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
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Table of Contents
- A shared organ and the core dilemma in separation surgery
- The distinction between a symmetric and an asymmetric case, and how halakhic decisors rule in asymmetry
- A symmetric case, the law of a pursuer, and R. Shlomo Eiger
- The problem of choosing and a lottery as a mechanism for implementation
- A claim for intervention even without the law of a pursuer, and comparison to a duel
- The Jerusalem Talmud in Terumot and Maimonides in the Laws of the Foundations of the Torah
- The questions of the Kesef Mishneh and the Lechem Mishneh on “What makes you think…”
- A proposed solution: the context is sanctification of God’s name and refusal to surrender to terror, not the laws of murder
- A lottery: the Jerusalem Talmud versus Sefer Hasidim, and the proof from Jonah
- Consent to a lottery, minors, and the religious court as guardian
Summary
General Overview
The text argues that in surgery to separate Siamese twins who share a vital organ, the real dilemma is not the identity of the organ but the fact that separation saves one and causes the death of the other. It distinguishes between an asymmetric case, where one can identify ownership or better chances of survival, and a symmetric case, where both have an equal connection and halakhic decisors tend to forbid intervention. The author argues that in the symmetric case it is proper, and even necessary, to intervene by means of a lottery, and suggests that this can be justified both within the framework of the law of a pursuer and even without it, when non-intervention leads to the death of both. He presents the Jerusalem Talmud in Terumot and Maimonides in the Laws of the Foundations of the Torah as a source that seems to contradict this, brings the questions of the Kesef Mishneh and the Lechem Mishneh, and proposes a solution according to which that law concerns surrender to terror and sanctification of God’s name, not the laws of murder, and therefore does not apply to Siamese twins. He then discusses the possibility of drawing lots over lives in light of Sefer Hasidim and Jonah the prophet, and concludes with the claim that a lottery in a case where otherwise all will die is for the benefit of every side, including the question of consent and the representation of minors through a religious court.
A shared organ and the core dilemma in separation surgery
The text describes Siamese twins who share a heart and a brain, and says that in principle the identity of the organ is not the main issue so long as separation is required for someone to survive. The text clarifies that there is no dilemma when they can be separated and both remain alive; the dilemma exists when the separation necessarily causes one to die and saves the other. The text states that the shared organ is the source of the problem because the situation makes it possible to leave only one alive, for example when there is only one heart.
The distinction between a symmetric and an asymmetric case, and how halakhic decisors rule in asymmetry
The text distinguishes between a symmetric case, in which both twins have an equal connection to the shared organ and there is no way to determine to whom it belongs, and an asymmetric case in two forms. The text says that one kind of asymmetry is when one child has no chance of surviving in any event, and then there is hardly any dilemma. The text says that a second kind of asymmetry is when the organ clearly belongs to one of them and the other is nourished by it and is considered a parasite, and in such cases halakhic decisors permit separation surgery and leaving alive the one with the advantage. The text attributes different lenient rulings either to the law of a pursuer or to the reasoning that one person’s blood is redder than the other’s, and brings parallel examples from Rabbi משה Feinstein, a court, and a priest in Philadelphia, as well as analogies of paratroopers and a mountain climber with a peg.
A symmetric case, the law of a pursuer, and R. Shlomo Eiger
The text says that in the symmetric case there is no clear target for harm, and therefore according to the consensus of halakhic decisors one may not do anything and must leave both to die. It reports a direct inquiry according to which “there is no one who permits.” The text presents R. Shlomo Eiger in Ketubot, in the novellae appended to Rabbi Akiva Eiger, as arguing that in mutual pursuit there is no law of a pursuer and therefore one should not intervene. The text argues that the symmetry in the twins is not a classic case of mutual pursuit but a struggle over a resource, yet it uses the framework of mutual pursuit in order to sharpen the question of applying the law of a pursuer when there is no way to choose whom to harm.
The problem of choosing and a lottery as a mechanism for implementation
The text argues that the problem in a case of two “pursuers” is not the absence of the law of a pursuer but the inability to implement it because of the question of choice: “Whom do you choose?” The text says that if there is permission to harm either one by virtue of the law of a pursuer, then a lottery does not create permission but merely allows it to be carried out. The text suggests that a lottery can solve the problem of choice in a symmetric case, and emphasizes that deciding by “heads or tails” is technical rather than essential, as long as there is a prior basis for permission.
A claim for intervention even without the law of a pursuer, and comparison to a duel
The text argues that even according to R. Shlomo Eiger one could permit intervention in the case of Siamese twins, because in a duel the expected outcome is that one dies and one lives, and therefore refraining from intervention is understandable, whereas with Siamese twins non-intervention leads to the death of both. The text says that in a case where without intervention all die, it is right to draw lots and separate them in order to save one, even if the law of a pursuer does not apply. In the course of this discussion the text raises questions about “killing someone who is already doomed to die” and arguments such as “he is going to die anyway,” as against the distinction between saving life and permission to kill.
The Jerusalem Talmud in Terumot and Maimonides in the Laws of the Foundations of the Torah
The text presents the Jerusalem Talmud in Terumot and Maimonides’ ruling in the Laws of the Foundations of the Torah as dealing with a siege by gentiles who demand, “Give us one of you and we will kill him, and if not we will kill all of you,” and says that according to Reish Lakish, “let them all be killed rather than hand anyone over.” The text presents a further distinction in the Jerusalem Talmud when “they designated for them” a specific individual, and notes the dispute between Rabbi Yohanan and Reish Lakish, with Maimonides ruling like Reish Lakish that even when a specific person was designated, one may not hand him over if he is not liable for death, and permitting it only if “he was liable for death like Sheva ben Bikhri,” while “one does not instruct them to do so ab initio.” The text comments that the simple implication of the phrase “let them all be killed” seems to rule out the solution of a lottery, and presents this as a point for discussion.
The questions of the Kesef Mishneh and the Lechem Mishneh on “What makes you think…”
The text cites the Ramakh as quoted in the Kesef Mishneh, who asks that there is no room there for the reasoning of “What makes you think your blood is redder?” because if they do not hand someone over, everyone will die, including the candidate for surrender, and therefore “better that he himself be killed than that everyone be killed.” The text presents the answers of the Kesef Mishneh and the Lechem Mishneh as strained, including the claim that the reasoning is not the main reason but merely a received tradition, or that the case is one in which there is some possibility of escape and therefore it is not certain that all will die. The text says that these strained answers result from the force of the difficulty, and presents this as part of the struggle with a source that appears “difficult” in light of simple reasoning.
A proposed solution: the context is sanctification of God’s name and refusal to surrender to terror, not the laws of murder
The text proposes a solution according to which the case in the Jerusalem Talmud and in Maimonides is not a halakhah about deciding between lives, but a special rule against surrendering to a demand of terror, which also involves desecration of God’s name, and therefore belongs to the framework of “be killed rather than transgress” as part of sanctification of God’s name. The text relies on the placement of the law in Maimonides, in the Laws of the Foundations of the Torah rather than the Laws of Murder and Preservation of Life, in order to argue that this is a law about sanctification of God’s name and not about permission to kill in order to save. The text says that in the case of Siamese twins there is no surrender to a threatening person but rather a response to a natural reality, and therefore “What makes you think your blood is redder?” is irrelevant when non-intervention causes everyone to die, and it concludes that there is no contradiction from the Jerusalem Talmud and Maimonides to separation surgery.
A lottery: the Jerusalem Talmud versus Sefer Hasidim, and the proof from Jonah
The text presents a claim that one might infer from the Jerusalem Talmud that there is no “lottery over lives,” but rejects this in light of the distinction that there the problem is surrender to terror, and therefore a lottery too would have been problematic. The text cites Sefer Hasidim, section 201, which forbids casting lots on a ship in order to throw someone into the sea, but then presents another passage in Sefer Hasidim, section 699, which permits and even justifies drawing lots when “other ships pass in peace,” and concludes that there is “someone who is liable” on that ship. The text explains that the contradiction is resolved by saying that permission to use lots applies when there is a unique indication that the storm is directed at this particular ship, so that the lot identifies a particular cause, whereas in a general storm there is no basis to think that throwing someone overboard will save the others, and therefore it is forbidden. The text says that from here there is no principled prohibition on drawing lots over lives, and concludes that in the case of Siamese twins the lottery will “clearly” help save life, and therefore there is room to do it.
Consent to a lottery, minors, and the religious court as guardian
The text suggests that basic reasoning requires consent to participate in a lottery when life is at stake, unless there is a properly constituted governmental authority. The text says that in the case of Siamese twins we are dealing with minors who lack legal capacity, but argues that it is obvious that a rational person would consent to a lottery, because without it death is certain and with it there is a fifty-percent chance of survival. The text says that a religious court, as guardian of minors, can make the decision on their behalf for their benefit, because the lottery is “for the good of both” at the level of chances before the decision is made. The text compares this to a person on the roof of a burning house, where jumping is dangerous but preferable to certain death, and concludes with a comparison to “the flask of water in the desert,” according to which when the water belongs to one person, “your life takes precedence,” but when it is a partnership without clear ownership and there is certainty that both will die without a decision, the halakhic decisors cited justify a lottery, and the Mishpat Shalom in section 175 is cited as writing that a lottery is the correct course where there is no ownership.
Full Transcript
[Speaker A] We
[Rabbi Michael Abraham] are dealing with the issue of surgery to separate Siamese twins where the medical condition is that they have a shared organ—a heart and a brain.
[Speaker A] So does it matter which organ it is?
[Rabbi Michael Abraham] In principle, as long as the situation is such that they need to be separated in order to survive, it doesn’t matter which organ it is. Usually these are organs on which life depends. But if they can survive without it, that’s a different question. If they can’t survive without it, then that’s the situation; the shared organ doesn’t matter all that much. The shared organ is what creates the problem, because here there’s a possibility of leaving only one of them alive. They’re not just attached; they have only one heart. If they were attached and you separated them and both remained alive, there would be no dilemma. The dilemma is that in the separation surgery in the cases I’m talking about, it’s a surgery that sends one of them to death and leaves the other alive. And the question is what to do in such a case.
I’m not going to go over everything I said again, but I’ll mention that in practice I distinguished between two situations. Actually, before that, I distinguished between two situations. There is a symmetric case, where both twins, each of the twins, has an equal connection to the shared organ. Meaning, there is some heart, and you can’t determine unequivocally which of the two it belongs to. There is one heart, both are connected to it, and therefore this is called a symmetric case. There is an asymmetric case, and it can be asymmetric in two different ways. One possibility is that one of the children has no chance of surviving in any event, and then there isn’t much of a dilemma, because one will survive and one won’t. That’s one type of asymmetry. And a second type of asymmetry is in terms of the physiological condition—that is, the heart, say, clearly belongs to one of them, and the other somehow feeds off him and is essentially a parasite, let’s call it that. I mentioned that the halakhic decisors in the asymmetric case permit carrying out separation surgery, and of course they leave alive the one who has the advantage. Some rely on the law of a pursuer, others perhaps on the idea that one person’s blood is redder than the other’s. I brought the examples of Rabbi Moshe Feinstein, and also of the court and the priest there in the United States, in Philadelphia, which were very similar examples. Right, and also that paratrooper example, where two paratroopers are descending, one of them has his parachute torn and he grabs the other one’s legs. So now both of them are essentially hanging on the second one’s parachute. But the parachute clearly belongs to the second one—it’s his parachute. The first one got into trouble because his parachute tore. Now the question is whether the second is allowed to kick him down, because otherwise both die; the parachute can’t carry both of them. Same thing with the mountain climber and the peg—yes, they used really very, very similar examples there. It’s very interesting.
In any case, the conclusion was that in the asymmetric case, according to most opinions, it is permitted to harm the one who is less connected to the organ, or the one who has less chance of survival. And the big question is what happens in the symmetric case. So in the symmetric case there is no specific person who can be harmed, there’s no one who has an advantage over the other, and therefore the consensus of all the halakhic decisors is that one may do nothing. Meaning, you have to leave both of them to die. Again—not just indirectly—but I spoke to someone who checked this directly, and he told me unequivocally: there is no one who permits it. Meaning, the consensus of all the halakhic decisors is that one may do nothing and has to leave them to die. I said that this is actually what really outraged me, because it was clear to me that in such a situation it is in fact right to perform separation surgery. And then the question is really how to relate to a situation like that.
So I said there are two ways to look at it. I brought R. Shlomo Eiger in tractate Ketubot, the son of Rabbi Akiva Eiger, whose words appear in Rabbi Akiva Eiger’s novellae, in his own section, where he wants to argue that in a situation of mutual pursuit there is no law of a pursuer. What happens when two people are pursuing each other? A duel between two people. Then each one is pursuing the other. The question is what you do in such a case. So he argues that in such a case there is no law of a pursuer, and therefore you leave it alone—whatever happens, happens; you don’t intervene. Now, it’s clear that there is a difference between this case and the case of the twins—that’s why I’m bringing it—but one possibility is to say that in a situation of mutual pursuit there is no law of a pursuer. The law of a pursuer is only renewed where there is a clear pursuer and a clear pursued victim. But if both sides are shooting at each other, then there is no law of a pursuer.
It reminds me of an article I just read by two jurists talking about autonomous weapons—I wrote about it on my site—and they say there that one of the claims against the use of autonomous weapons is that it’s not a fair fight. Meaning, only one side is taking a risk; the other side is not taking a risk. Because someone using autonomous weapons—at most they destroy his device. In my opinion it’s an absurd argument. It’s like interest, like interest—you know that it is forbidden to make a deal in which you take no risk. A deal in which you take no risk is interest. Meaning, if you do take risk, then it’s not interest. But I don’t know—maybe in King Arthur’s court those are fine rules; in war you need to win, not to be fair. So that argument is a strange one.
[Speaker A] In any case, but in the symmetric case, the twins aren’t pursuing each other. What? They’re pursuing a resource.
[Rabbi Michael Abraham] Fine, true. But in the end—soon I’ll get to that—even a fetus in its mother’s womb is ostensibly not a pursuer; it’s just after a resource. But we call it a pursuer, because in the end—yes.
[Speaker D] Of the arguments that permit intervention on the basis of the law of a pursuer, which of them fall away because of R. Shlomo Eiger’s argument about mutual pursuit?
[Rabbi Michael Abraham] What do you mean?
[Speaker D] You gave several, for example the quantitative point—that in the end instead of having one dead and one murderer, here you’ll just have one dead person. That, for example, was one of the arguments used to permit. That also exists in mutual pursuit. He would anyway be liable to death, things like that. That also applies.
[Rabbi Michael Abraham] Some of the arguments would still apply, but because of the symmetry there’s a problem. So whom do you choose?
[Speaker D] So why is “whom do you choose” a problem that disqualifies the law of a pursuer?
[Rabbi Michael Abraham] What are you going to do? What are you going to do?
[Speaker D] Heads or tails?
[Rabbi Michael Abraham] Heads or tails? Ah—so that I’ll get to in just a moment. That’s one of the answers that comes up here too. I’ll get to that exactly in a moment. But what lies behind this is that there’s basically some technical problem: I don’t know whom to choose, and therefore you basically can’t do anything. No, there too there is logic to it—we’ll talk about that soon—but there too there is logic to it, because one will be saved and one will die in any event. We’ll see in a moment. In the whole symmetric case, you could define it as a situation where there are two pursuers, and then R. Shlomo Eiger says that there is no law of a pursuer in such a case. But in my view, as you pointed out, there’s no reason to assume that where there are two pursuers there is no law of a pursuer. If both are pursuers, then both have the status of a pursuer. The whole problem is not that there is no law of a pursuer; the problem is that apparently there is no way to implement it. There is no way to implement it because whom do you choose? Go here, he trembles; go there, he trembles. Meaning, you come to kill him and he says, why not kill the other one? And so on. So you have no way to choose which of the two to harm. And to kill both of them under the law of a pursuer makes no sense. Meaning, now you’ll kill both of them instead of them trying to kill each other, because both have the status of a pursuer, and you solved the problem. That’s a good method; Stalin used to solve problems that way.
In any case, the claim is that it’s not that the law of a pursuer doesn’t apply here, as you said. It’s not that it doesn’t apply; there’s a problem of choice. But the problem of choice can be solved. Meaning, if both of them have the status of a pursuer, then that means I have permission to kill each one of them. If there is no law of a pursuer on both of them in the symmetric case, then I have no permission to kill at all, and I can’t hold a lottery. A lottery cannot create permission to kill someone. If there is permission to kill, but I just don’t know whom I need to choose—between the two—then there is room to talk about a lottery. And therefore I say that it matters greatly whether I define this as a case where the law of a pursuer applies to both sides but there is no way to implement it, or whether in such a case the law of a pursuer simply does not apply at all. That’s why I claim that, exactly for the reasons you said, yes, there really is the law of a pursuer on both sides, and the whole problem is just a problem of choice. If there is a problem of choice, I’ll hold a lottery.
[Speaker C] Maybe you should try to kill both of them, and the first one you manage to catch, then you stop.
[Rabbi Michael Abraham] You’re suggesting a way to conduct the lottery. Heads or tails. What difference does it make? Meaning, you’re suggesting a particular form of lottery. Exactly. Fine, do the lottery that way, do it by heads or tails, do whatever you want—it doesn’t matter. The point is basically that if the law of a pursuer applies to both of them, then all I need to do is hold a lottery between the two, and that will resolve the issue of choosing one of them. And the permission to kill already exists, because after all there is the law of a pursuer. So it’s not the lottery that creates the permission; it only allows me to carry it out, meaning to use it. All this is if we really go in the direction of the law of a pursuer, if we assume that there is the law of a pursuer.
My claim goes further than that. I claim that even according to R. Shlomo Eiger there’s no problem here. In the symmetric case, even if there is no pursuer on both sides, I still think you can hold a lottery, choose one of them, and kill him. And why? Because R. Shlomo Eiger is talking about a situation where each one threatens the other, but the final outcome is that one of them will die and one will live. Meaning, who is the fastest draw in the West. Right? Whoever draws faster will remain alive. Whoever draws and actually hits, of course—if he just draws, that won’t help. What? It could be that both die. That usually doesn’t happen; you can’t completely rule it out. Meaning, it’s a very small chance. So the point is that the expected outcome, at least—maybe in an exceptional case not—but the expected outcome is that one dies and one lives. In such a case, without the law of a pursuer, you really have no reason to intervene. But in the case of Siamese twins, if you don’t intervene, both die—not one of them. And if you do intervene, you kill one, but he was going to die anyway, while you save the other. So there, even according to R. Shlomo Eiger, who says that there is no law of a pursuer in a case of mutual pursuit, simple logic says that I can hold a lottery and at least save one—kill one and save the other. Therefore I claim that it also has nothing to do with the law of a pursuer. First, if there is here the law of a pursuer and the problem is choice, I hold a lottery. But in my opinion, even if there is no law of a pursuer, even according to R. Shlomo Eiger, this is not similar to his case. Because in his case, the final result is that one of them dies and the other is saved. In our case, the expected final result if I do not intervene is that both of these twins die. So here, in my opinion, according to all views, one should hold a lottery, intervene, and perform the separation surgery.
[Speaker D] But what is the source of permission here? Where—suppose there’s no law of a pursuer. Saving life. No, but that’s not a consideration that permits killing. Why not?
[Rabbi Michael Abraham] It’s not killing—he’s going to die anyway. Not killing—killing someone already doomed to die.
[Speaker E] Maybe then euthanasia would also be permitted? Killing someone already doomed to die—there’s no Torah-level prohibition of murder in killing someone already doomed to die. Why not? It’s different from when he is… okay, that’s an issue I’m not… each one will die. I’m already… that issue, good question.
[Speaker A] Yes. Each one here has the status both of pursuer and pursued. You need to save the other, each one of them. Meaning, kill one in order to save the other. Yes, but what happens when there are two pursued victims?
[Rabbi Michael Abraham] Fine, but with regard to the pursuer, the law of a pursuer applies; with regard to the pursued victim, it does not. Okay, so kill him from the aspect in which he is a pursuer, but from the aspect in which he is pursued, the pursued victim must be saved.
[Speaker A] But you can’t—
[Rabbi Michael Abraham] save both of them; you save one of them.
[Speaker A] Wait, and what about the Jerusalem Talmud with the city?
[Rabbi Michael Abraham] I’m getting to exactly that question, I’m coming to it now. So the claim is that in the symmetric case, whether we accept R. Shlomo Eiger that there is no law of mutual pursuit here, or whether, as I think, there is the law of a pursuer here, I think that one can—not can, must—hold a lottery and perform the separation surgery. Now in this context, last time we began discussing the Jerusalem Talmud that was also ruled as law by Maimonides in the Laws of the Foundations of the Torah, the Jerusalem Talmud in Terumot, which speaks about “Give us one of you.” I handed out sheets, I have these sheets here with me, because there are a few things here that maybe it’s worth seeing. I don’t think everyone has one, so look on with the person next to you.
[Speaker C] Actually, I don’t have sheets. Do you?
[Rabbi Michael Abraham] You don’t have them. Wait—in the back row on the right, I think—do you have another sheet? We’re missing—
[Speaker C] A few more sheets. Yes. It’s in the study books of—
[Rabbi Michael Abraham] Okay. Fine, pass them around. What’s going on with you? Isn’t there another free page in the corner there?
[Speaker C] We have it on the phone. The Jerusalem Talmud goes everywhere with us.
[Rabbi Michael Abraham] Everywhere I go, behold, I go to the Land of Israel, as our teacher said. Fine. In any case, the Jerusalem Talmud in Terumot brings—we saw this last time, so I won’t read the Jerusalem Talmud now—but it’s talking about a group of people besieged by gentiles who say to them: give us one of you, and if not we will kill all of you. If you don’t give us someone, we’ll kill all of you. In the Jerusalem Talmud it says—and I’m already moving to the opinion of Reish Lakish, which is the ruling in Maimonides; by the way, not everyone agrees, there are halakhic decisors who rule like Rabbi Yohanan, but Maimonides’ view is to rule like Reish Lakish. That’s a big question, but not important right now; we’re not going to get into the rules of deciding law. And that’s how he rules.
Reish Lakish’s view is that it is forbidden to hand one over to them. On this everyone agrees, basically this is Reish Lakish: it is forbidden to hand over one of them, and they should all die rather than hand him over. They do not hand over the one. But if they choose someone, if they say, give us so-and-so—not just, give us one of you, we feel like killing a Jew, but give us so-and-so, a specific person—in that case Rabbi Yohanan and Reish Lakish disagree. Rabbi Yohanan says: hand him over. The logic is very clear. Why? Because if in any event he is going to die—exactly like the Siamese twin, right? It’s really just like the Siamese twin. After all, if we don’t hand him over, we all die, including him himself. What are we doing? We’re doing separation surgery, in effect. We’re giving him over because in any case he is going to die, and he’s the one they want. But that logic is also good if they said, give us one of you. Why is that logic good? It’s not clear—that’s exactly what I’m saying.
[Speaker E] In this specific case I really understand it. The big question is why we don’t say that in the first case as well, right.
[Rabbi Michael Abraham] That is Rabbi Yohanan’s view. But Reish Lakish says that even in such a case it is forbidden to hand him over. However, if he was liable to death under the kingdom’s law—that is, they aren’t just naming some person and marking out someone, but he really is liable to death, he committed some offense such that according to the king’s law he is liable to death—in that case even according to Reish Lakish one may hand him over. But that is not an act of piety; it is not the conduct of the pious. Elijah the prophet there stopped appearing to Rabbi Yehoshua ben Levi because of Ulla ben Keshav, because Rabbi Yehoshua ben Levi persuaded him to surrender himself, and Elijah the prophet called him an informer—he does not reveal himself to informers.
And this is indeed ruled as law in Maimonides. Look at the second source: “Women to whom idolaters said: Give us one of you and we will defile her, and if not we will defile all of you—they should all be defiled and they should not hand over one Jewish soul to them. And similarly, if idolaters said to them: Give us one of you and we will kill him, and if not we will kill all of you—they should all be killed and they should not hand over one Jewish soul to them. And if they designated for them and said: Give us so-and-so or we will kill all of you—if he was liable to death like Sheva ben Bikhri, they should give him to them, but one does not instruct them to do so ab initio. And if he is not liable to death, they should all be killed and they should not hand over one Jewish soul to them.” That is Reish Lakish’s view.
Is it permitted to use a lottery? What? Nothing is written about the fact after the event; nothing is written. So it says one may not hand anyone over. On the simple reading it seems not—what, you want to say it’s forbidden even to conduct a lottery? We’ll talk about that in a moment. From the fact that it doesn’t say so, you could infer that it’s forbidden; otherwise I would have expected him to say it, because that’s the obvious solution. He says rather, “they should all be killed,” not “they should conduct a lottery so that no one is forced.” Of course, if they point to a specific person—
[Speaker C] Conduct a lottery without killing him?
[Rabbi Michael Abraham] What do you mean, conduct a lottery? That’s another question; not sure.
[Speaker F] What about Jonah? Ah, but if he rules that even a specific person may not be handed over, then a lottery won’t help. Not clear.
[Rabbi Michael Abraham] But I’m saying that in a case where no one is singled out, maybe there is room to say: let’s hold a lottery.
[Speaker F] According to the one who rules—Reish Lakish—who says that even if there is a specific person, it is forbidden to hand him over—
[Rabbi Michael Abraham] that’s not such a reason not to have a lottery. We’ll see later; it’s not quite so exact. Because if they single out a specific person, it may be that I am forbidden to perform that act. But if I do it in order to save ourselves, then perhaps maybe I can— we’ll get to that in a moment. So in Maimonides, that’s what he writes.
Now, last time we began to look at the commentators who challenge Maimonides—really they challenge the Jerusalem Talmud, not Maimonides; Maimonides just brings the Jerusalem Talmud, Reish Lakish. They challenge Maimonides because these things are really very, very puzzling. They are very puzzling because this is against the principles we’ve learned until now. Look at the Kesef Mishneh: “The Ramakh wrote”—I think we already started this last time—“The Ramakh wrote: Although a Tosefta is found in accordance with his words”—and this Tosefta is what is brought in the Jerusalem Talmud—“although a Tosefta is found in accordance with his words, I do not know the reason. I do not know what the reason for this is. Why on earth? What kind of law is this?”
[Speaker A] Why are you attacking Maimonides and not the Jerusalem Talmud?
[Rabbi Michael Abraham] It’s the same thing. He’s simply a commentator on Maimonides. “For the Talmud concludes, I do not know what the reason is, for the Talmud concludes that the reason we say regarding bloodshed: be killed rather than transgress, is because it is logical—‘What makes you think your blood is redder?’ But here that reasoning does not apply, for all of them, including he himself, will be killed, and better that he himself be killed than that all of them be killed.”
He says: why am I forbidden to kill the one in order to save myself? Because “What makes you think your blood is redder?” Your blood is no redder than his. But if the situation is that if I do not kill him or hand him over, both of us will die, including he himself, then this reasoning of “What makes you think your blood is redder?” is not relevant. “What makes you think your blood is redder?” applies when it’s his life versus my life, and then we say: you can’t choose. Are you God? Meaning, you can’t decide who dies and who lives. But if the alternative is that both of us die, and you hand one person over to die—someone who in any event will die, because even if you do not hand him over he will die—then, says the Ramakh, where does this law come from? After all, it’s not a logical law.
[Speaker D] Exactly what you’re saying about the Siamese twins.
[Rabbi Michael Abraham] Right. That’s why I’m bringing this Maimonides; we’ll get there in a moment. So the point is that this law is not a logical law. Maybe I should have said that in the previous sentence; I forgot. The connection is obvious, of course, right? Meaning, the connection to the issue of Siamese twins is obvious; it’s exactly the same situation. Therefore when I said that one can do separation surgery, they said to me: but look, there is a Jerusalem Talmud and Maimonides against you. Because there it says that it is forbidden to hand someone over in order to save the others, even though if I don’t hand him over, everyone will die—including him. So this is exactly, one-for-one, the case of Siamese twins. So it goes against what I said.
[Speaker D] Yes, but in terms of who determines the situation—no.
[Rabbi Michael Abraham] What do you mean?
[Speaker D] In the result, certainly. But here the gentile dictates it.
[Rabbi Michael Abraham] Okay, so I’ll get to that in a bit—that’s where I’m heading. So that’s what the Ramakh asks. And then he says: “And I say that his question is not a valid question on the Tosefta. For one could say that there it is different, because they designated him and said to him: Kill so-and-so.” In the Tosefta itself there may have been room to say that they designated him. Reish Lakish and Rabbi Yohanan are in the Jerusalem Talmud. In the Tosefta there are no Amoraim; they are Amoraim, Rabbi Yohanan and Reish Lakish. In the Tosefta it could be that the case is one where they designated him. “And therefore the reasoning is not ‘What makes you think that this one’s blood is redder?’ and we would not say ‘be killed rather than transgress.’ And that is why the latter clause teaches: if they designated for them.” But in the first clause, where they did not designate anyone, where they only said, “Give us one of you and we will kill him,” and whichever one they wanted to hand over—one could say to them: what makes you think that you should hand over this one? Hand over another one. That is “What makes you think this one’s blood is redder? Perhaps the other one’s blood is redder.” And based on that argument they could not hand over any one of them.
Yes, so the difficulty is in the case where no one is designated. Reverse induction. “But if there is a difficulty, on Reish Lakish there is a difficulty, for he said that even though they designated someone, if he is not liable to death one may not hand him over. For here there is no reasoning of ‘What makes you think his blood is redder?’ since he and they will all be killed if they do not hand him over.” So that reasoning is not present here. So according to Reish Lakish—and in other words regarding Maimonides, who rules like him—this is very difficult. Where does this come from? Why on earth do I have to commit suicide together with him, when the whole law that forbids me from killing the other in order to save myself is based on “What makes you think your blood is redder?” but that reasoning does not belong here.
[Speaker D] But excuse me, also in the previous claim—even when they designated him, and even when they didn’t designate him—isn’t the difficulty of deciding not enough to reject the quantitative argument? I don’t understand. After all, the Ramakh has two cases. He attacks Reish Lakish because Reish Lakish says that even if they designated someone, you don’t hand him over. That means that supposedly Rabbi Yohanan’s problem was only with the way of deciding, not with the—
[Rabbi Michael Abraham] No, even when they didn’t designate someone he asks the same question. So in the Tosefta you could have said that it is talking about a case where they designated someone, and then Rabbi Yohanan works out. But Reish Lakish can’t read it that way, because he says that even if they designated someone, it is forbidden to hand him over.
[Speaker D] But why would Rabbi Yohanan work out? Because he takes the difficulty of making the decision as sufficient not to apply the quantitative consideration. I mean, “What makes your blood…” the decision, the choice—of whom?
[Rabbi Michael Abraham] We’ll see in a moment. We’ll see in a moment. R. Shlomo Eiger—yes, we’ll see in a moment. So the claim of the Kesef Mishneh is: “And one may say that Reish Lakish holds that what is written, that regarding bloodshed it is based on logic, is not the main reason. Rather, they had a tradition in hand that one must be killed rather than transgress, and they merely gave a logical reason where it applies. But indeed, even where that reason does not apply, the law is the same—that one must be killed rather than transgress.” That’s an enormous stretch. The Kesef Mishneh is basically saying—notice how difficult this is—the Kesef Mishneh is basically claiming that the reasoning of “What makes you think your blood is redder?” is not really the reason why one may not kill someone in order to save someone else. There is some law like that—I don’t know, maybe a scriptural decree, maybe a law given to Moses at Sinai, I don’t know exactly what—that forbids killing someone in order to save someone else. And the sages wanted to give it a rationale, so they said, “What makes you think your blood is redder?” But the truth is that even where that reasoning doesn’t apply, the law is still the same. That’s what you have to say, otherwise you can’t understand this Jerusalem Talmud.
Look at the Lechem Mishneh: “Give us one of you…” Everyone dealing with Maimonides gets badly tangled up in this. “Give us one of you and we will kill him, and if not we will kill all of you—they should all be killed and they should not hand over one Jewish soul.” “The difficulty raised by Rabbi Kesef Mishneh on Reish Lakish—that we require him to be liable to death—why? Since in the claim that they will all be killed, the reasoning ‘What makes you think this man’s blood is redder?’ does not apply. And if the difficulty were only on Reish Lakish, it would not be so difficult, because one could say that Reish Lakish does not hold by the reasoning ‘What makes you think…,’ but rather that they had a received tradition, as Rabbi Beit Yosef wrote. But our teacher,” meaning Maimonides, “who ruled like Reish Lakish and also brought that reasoning”—after all, Maimonides rules like Reish Lakish and brings that reasoning. Does Maimonides bring the reasoning of “What makes you think your blood is redder?” And regarding Reish Lakish you can say, fine, he didn’t hold that reasoning, it was just anonymous. But Maimonides brings that reasoning and rules like Reish Lakish. “And in Maimonides himself this is very difficult, and the answer of the Kesef Mishneh is not fully sufficient. And one may say, with difficulty, that the case is one where they have some narrow possibility of escape and thus not all of them will be killed, and therefore they should not hand over one soul, for perhaps they will escape.”
Meaning, it’s not 100 percent certain that all of them will be killed? It’s not 100 percent certain that all of them will be killed—maybe they won’t kill them, maybe some will manage to escape, I don’t know. Since there is here some… maybe it’s the worst-case setup, then certainly all will die. So I’m saying that in the end the Lechem Mishneh accepts the difficulty raised by the Kesef Mishneh as very strong. Each of them is pushed into enormous forced answers. The Lechem Mishneh—there is no question that Maimonides never dreamed of this and did not mean it. That is obvious. So what is it? The difficulty is simply so difficult that they can’t find an answer. So one of them says, fine, it must be talking about a case where perhaps they can escape. Maimonides is describing a scenario; Maimonides is not talking about one specific sugya. In the scenario it says that all will be killed—that’s the hypothetical situation. It’s not—there’s no point talking otherwise. No, he’s talking about a situation like that. Are you going to make an interpretive narrowing in Maimonides? Fine, in the Talmud we’re used to that. But in Maimonides? Maimonides is a law book. When he says something, he is supposed to make clear what he means. You don’t make interpretive narrowing moves in Maimonides; there’s no such thing.
So in short, I’m bringing both of them so that you can see just how strong this difficulty is. Meaning, in the end neither of them finds an answer. And notice that according to the Lechem Mishneh, if there were a situation where they really would be killed and there were no chance of being saved, then he agrees that it would in fact be permitted to hand one over. Right? That’s what he writes. He says that here one has to say that probably it is a case where they can be saved even without handing someone over. But the implication of his words is that if there were a hypothetical situation—it doesn’t matter—but one in which it was clear that all would die, then he… for example, Siamese twins. So first of all, we already see that as far as Siamese twins are concerned, this is not a frontal contradiction. Even the Lechem Mishneh, on this very Maimonides, argues that if the assessment is that both die, then it is permitted to hand over one of them. Maybe it is even a commandment to hand over one of them in order to save the others.
The point is that in any event this is always a halakhic dilemma—yes, a halakhic dilemma—what to do with a difficult source. Why? Because I said earlier, on the basis of simple reasoning—what seems to me straightforward reasoning—that one can perform separation surgery on Siamese twins. Now they bring against me the Jerusalem Talmud in Terumot and an explicit Maimonides against me. It says it explicitly. Okay? But on the other hand, what they say is very difficult. The same reasoning because of which I say that one should separate Siamese twins—that is exactly the reasoning because of which the Kesef Mishneh and the Lechem Mishneh find Maimonides difficult. That is exactly why Maimonides is difficult for them. Okay? Now true, but there is such a Maimonides, and that is what is ruled as law, and that is what the Talmud says. What do you do in such a case? So again, that is a question of halakhic policy, of course, because I don’t know—when I see a difficult source I would not derive any conclusion from it. If a certain law is clear to me and there is some difficult source, then it is a difficult source. Fine. But someone else can come and say, all right, but we are bound by it, and there is Maimonides and there is the Talmud. There is no difficult source—the Jerusalem Talmud is difficult? Yes. The Jerusalem Talmud. Yes, yes. Okay, there is no Babylonian Talmud.
[Speaker A] Wait, wait, you said—
[Rabbi Michael Abraham] The Jerusalem Talmud is difficult, Maimonides is difficult, both are difficult. The Jerusalem Talmud is the Babylonian Talmud… no, but the Babylonian Talmud disagrees with the Jerusalem Talmud, because the Babylonian Talmud says, “What makes you think your blood is redder?” So the Babylonian Talmud disagrees with the Jerusalem Talmud. By the way, there’s a rule about Maimonides, that Maimonides rules like the Jerusalem Talmud. That’s… there’s a common mistake in understanding that rule. What does that mean? I think I spoke about this once. Saying that Maimonides rules like the Jerusalem Talmud is not correct; many times he rules like the Babylonian Talmud. So what’s the rule here, that he rules like the Jerusalem Talmud? That sometimes he rules like the Jerusalem Talmud. That’s the rule. The rule is that sometimes he rules like the Jerusalem Talmud. Why is that a rule? It is a rule. Why? Because the accepted assumption is that when there is a dispute between the Babylonian Talmud and the Jerusalem Talmud, we rule like the Babylonian Talmud. That’s the approach of the other medieval authorities (Rishonim). With Maimonides, there is a rule that this rule is not true in his case. Meaning, in his case it is indeed true that sometimes one rules like the Jerusalem Talmud. That rule has meaning. I once talked about this, I think, in connection with Zermelo’s theorem in game theory, yes, that theorem where I think I mentioned this. The theorem says that in a game like chess—it doesn’t matter, a certain kind of game—either black wins, or white wins, or there will be a draw. That’s a theorem in mathematics. There’s a whole course at the Open University you can take in order to prove that theorem. Now understand, it sounds trivial to you, but it is not a trivial theorem. Sometimes things like this sound trivial, but they aren’t. We’re talking here about a predetermined outcome of the game, not about what will actually happen
[Speaker A] in practice. That’s why they laugh when I say this; they laugh at the beginning of the course and say, ah, okay.
[Rabbi Michael Abraham] But—
[Speaker G] Maybe there was just one final suggestion, that there is an essential difference between the two cases, because here there’s a medical situation involving infants, and there it’s something where they… there is antisemitism and they are being threatened tactically. It’s like redeeming captives and all the things that happened in history.
[Rabbi Michael Abraham] I agree, I’m getting to that now, I agree with you.
[Speaker D] On the other hand, though, there is a really very strong argument to the contrary: first of all, both Rabbi Yohanan and Reish Lakish agree that if they don’t point to someone and there isn’t anyone who is liable to death, they both agree that it is forbidden. That’s one. Two, when I hand over the Jew to the gentile, I still haven’t killed him yet. Here, with Siamese twins, I am killing him with my own hands. Meaning, those are two arguments.
[Rabbi Michael Abraham] All the more so, you’re saying.
[Speaker D] All the more so it’s forbidden.
[Rabbi Michael Abraham] There it’s forbidden, so all the more so here. Yes, yes. All the more so, or an archetypal derivation, but in any case it goes against me. Fine. Okay, so now what do you do with a difficult source that stands against a logical argument? This is basically a dilemma, a dilemma in halakhic ruling. I think the best way is simply to find a solution to the difficult source. That’s the best way, because it straightens everything out. And indeed there is a solution, an obvious one. Some of you said it. I first encountered it in an article by Professor Cohen from Bar-Ilan University, the legal scholar. And I think it’s clear that this is the intention of the Jerusalem Talmud and of Maimonides. The claim is that the cases are not similar. In the case of the gentiles who surrounded that group of Jews, we’re talking about a violent demand, about terror, essentially a terrorist act. “Give us one of you so we can kill him, and if not, we’ll kill all of you.” In the case of Siamese twins, nature created that situation. It’s not that someone is threatening us or trying to force us. Now, what happens is that if we yield to that demand and hand over one of us to save the rest, then there is some kind of—call it a desecration of God’s name—that Jews are essentially cooperating with terrorists and handing one of their own over to them, handing one of them over to terrorists. Jewish law says one must be killed rather than transgress in the case of desecration of God’s name. This is desecration of God’s name: one must be killed rather than transgress. The moment they try to extract someone from you by force, by threats, in a terrorist act, you don’t give anyone up; let them kill everyone. But clearly this is a law that has nothing at all to do with the laws of murder and preserving life. This is a law that relates to—where does this law appear in Maimonides? Did you see?
[Speaker C] In the Laws of the Foundations of the Torah.
[Rabbi Michael Abraham] Why not in the Laws of Murder and Preservation of Life? After all, this is a law in the Laws of Murder and Preservation of Life. Tell me, if there were a law in Maimonides about Siamese twins, where would it appear? In the Laws of the Foundations of the Torah? Of course not. In the Laws of Murder and Preservation of Life. That’s where you have the law of a pursuer, where it is permitted to kill, where it is forbidden to kill, right? That’s the Laws of Murder and Preservation of Life. Why does this law appear in the Laws of the Foundations of the Torah? Because this law is being discussed in the whole context of chapter 5 there in the Laws of the Foundations of the Torah, which is sanctification of God’s name. Sanctification of God’s name and desecration of God’s name—that’s the whole chapter there in Maimonides. So within the framework of the laws of sanctifying and desecrating God’s name, the sages tell you, the sages ruled that one may not yield to terror. Do not hand someone over to die even if the price is that all of us together with him will die. But this is a special law in the face of a terrorist threat. It has nothing to do with Siamese twins, where the issue is the Laws of Murder and Preservation of Life. It has nothing at all to do with sanctifying God’s name; we are not yielding to anyone, we are simply doing our best to save whomever we can. So of course one should do it. Who said your blood is redder? Therefore—one second—and therefore the reasoning of “Who says your blood is redder?” is not relevant. That is a reasoning that appears in the Laws of Murder and Preservation of Life. “Who says your blood is redder?” means: yes, you are not supposed to decide whose life is preferable, whose life you favor—you are not supposed to decide. In a situation where there is a threat, then clearly beyond “Who says your blood is redder?” there is also a prohibition against yielding to terror. There is a prohibition against yielding to terror, a desecration of God’s name, however you want to call it; in terms of where Maimonides places it, it is located in the laws of desecration of God’s name. That is the placement of this law in Maimonides. And by the way, that’s another rule: the placement of a law in Maimonides indicates its character, unlike in other places.
[Speaker D] Isn’t there a similarity in that when I separate Siamese twins, I’m not causing the Holy One, blessed be He, to create more Siamese twins? But when I hand over one out of…
[Rabbi Michael Abraham] That’s part of the same point. Meaning, part of the reason not to yield to terror is that you invite more terrorist acts. You can see that as the rationale of this law, part of the rationale. You’re saying it’s not just a desecration of God’s name in the metaphysical sense, but also purposive, meaning consequentialist—we don’t want… okay, yes, that’s fine, it’s part of the same thing.
[Speaker E] The problem is that the historical source was Joab son of Zeruiah and David; these weren’t terrorists who came and did this. David and Joab came and said, give us someone. Okay, so. It’s simply that there—
[Rabbi Michael Abraham] in truth he was one of us, and in truth they had to hand him over,
[Speaker E] only—
[Rabbi Michael Abraham] if he was like Sheva son of Bichri, then it is permitted. But if he is not liable to death, then King David was a terrorist. If he wants to take someone who is not liable to death and kill him, then he is a terrorist. That’s exactly the point. And therefore indeed it would be forbidden. There it was permitted because he truly had rebelled against the monarchy. So the claim basically is that if that’s the case, this resolves it… Then it is also clear that there is no difficulty at all for Siamese twins. Because Siamese twins falls under the Laws of Murder and Preservation of Life, and in preservation of life, if there is no problem of “Who says your blood is redder?”—since both sides will die if we do not intervene—then there one certainly must intervene. It has no connection at all to the question of the Jerusalem Talmud and Maimonides. Now of course one can pose the question: those who cling to halakhic precedents will say, fine, but the Kesef Mishneh and the Lechem Mishneh did not understand Maimonides that way. So now, am I allowed to understand Maimonides this way and issue a halakhic ruling different from how they understood Maimonides? Fine, I don’t see a problem with that. I think they did not think of this solution, but it is the obvious solution in Maimonides. Very often, when we have a difficulty, we infer some conclusion from it because there is no option such as, he simply didn’t think of the possibility we are raising—but there is such an option. Sometimes people don’t think.
[Speaker C] And that’s the difference between halakhic ruling in exile and halakhic ruling when you see terror as it exists here in the State of Israel. There they lived among the gentiles, so you say there could be a situation where in the end we won’t remain here, and so the Kesef Mishneh and the Lechem Mishneh said, wait a second, Maimonides, what are you doing here? After all, in the end we are living in exile overall.
[Rabbi Michael Abraham] But they don’t say that. Otherwise they would have had to say: look, what are you saying—that this is a law against yielding to terror? That can’t be, because even a law against yielding to terror does not justify this. They don’t raise that option at all. They discuss it under the Laws of Murder and Preservation of Life. They ask why the principle “Who says your blood is redder?” does not apply here.
[Speaker C] What, this is terror? What is this?
[Rabbi Michael Abraham] For them that wasn’t considered legitimate, but killing some Jew every—
[Speaker A] morning—what terror is there here?
[Rabbi Michael Abraham] There’s a Jew, they kill him.
[Speaker C] Yes. During the Holocaust two thousand years ago. What?
[Rabbi Michael Abraham] In the Holocaust, this happened every day. The Judenrat had to provide a certain quota of Jews, because otherwise they would kill everyone. There were such cases, yes.
[Speaker H] But there were also cases like those women who were married to Nazis or Germans, and they went on strike and said we won’t hand over our husbands, and it stopped. Meaning, sometimes there’s sociological pressure, which is very different from the Siamese case where the threat won’t actually be carried out.
[Rabbi Michael Abraham] That’s the Lechem Mishneh. The Lechem Mishneh says, look, don’t yield; who knows, maybe in the end it will work out, either because they won’t succeed or because they’ll compromise, fine. But I’m saying it’s clear that in the Talmud, clear that in Maimonides and in the Jerusalem Talmud, we are not talking about such a case, because they describe some case where the situation is clear: in the end everyone will die. We are, after all, in a principled halakhic discussion, not discussing what actually happened in some particular case.
[Speaker D] It’s like the question whether one may throw a person from a boat that is about to sink.
[Rabbi Michael Abraham] I’m getting to that too, I’m getting to that too—that’s Jonah the prophet,
[Speaker D] we’ll get to that in a moment.
[Rabbi Michael Abraham] So the claim, then, is that the Jerusalem Talmud and Maimonides pose no difficulty for Siamese twins. On the contrary, out of all the difficulties, if anything I rely on the Kesef Mishneh and the Lechem Mishneh—I rely on their question, not on their answer. The fact that they challenge Maimonides means it was clear to them that what Maimonides says is not halakhically correct, and that is exactly what I say about Siamese twins. I only say that what Maimonides said is also halakhically correct, because he was not speaking in the Laws of Murder and Preservation of Life but rather about the laws of yielding to terror. That’s all. But it is clear from all the commentaries on Maimonides that this actually supports what I’m saying, because otherwise why do they get into such a strained interpretation? Because it is clear to them that one cannot say such a thing. Meaning, clearly this reasoning is correct. Therefore, in my opinion, that question is proof for me, not a challenge to what I’m saying. Now of course there remains, there remains the question of a lottery. And this came up earlier too, both with Siamese twins and here. Let’s say no one is singled out; then the question of a lottery comes up. What about a lottery? So if this really were in the Laws of Murder and Preservation of Life—this Jerusalem Talmud and Maimonides—and not in the laws of yielding to terror, then the comparison would be correct. Because then what emerges is that you see in the Jerusalem Talmud that you cannot make a lottery over lives. Right? The way to decide, as you said earlier. Why? Because after all, on this both Rabbi Yohanan and Reish Lakish agree: if they did not single out the person, then it is forbidden to hand someone over and everyone has to die. Why? Make a lottery. After all, they’ll all die anyway. Take one person who will die in place of the others, at least the rest will be saved. The logic is the same logic. So why do both Rabbi Yohanan and Reish Lakish agree that it is forbidden to hand someone over? You see that it is forbidden to hold a lottery over lives. But in light of what I said before—not so. In this case that is precisely the problem. The problem is not whom to choose; the problem is handing someone over to the gentiles, because that is yielding to terror. What help is a lottery? The lottery would only tell me whom to take, but when I take him, that’s where the problem lies—that I am handing someone over to gentiles to kill him. This is also true according to Rabbi Yohanan: when they single out someone, he says one may hand him over. What is the difference? Because they want him. I do not have to hand myself over to save him, but I cannot hand him over so that he can save me. So why not make a lottery? According to Rabbi Yohanan. You can’t make a lottery if they specifically want that person—what do you mean? No, but in a case where they don’t specifically want someone, you cannot make a lottery. You cannot decide that he will die. That is yielding to terror. Why?
[Speaker D] You—
[Rabbi Michael Abraham] You cannot choose him so that he will save you.
[Speaker D] He’s not choosing—
[Rabbi Michael Abraham] himself—what do you mean?
[Speaker D] He agrees to the lottery.
[Rabbi Michael Abraham] No, but that is yielding to terror.
[Speaker D] You yield to terror when you hand over someone they didn’t point to.
[Rabbi Michael Abraham] No, but if they pointed to a specific person, that is not yielding to terror. Why? Because if they… it is also yielding to terror, but a different kind of yielding. When they pointed to someone, then not handing him over basically means I hand myself over so that he won’t die. That I am not obligated to do. But to hand him over so that I won’t die—that, yes. That is what Rabbi Yohanan said.
[Speaker D] Handing over someone they pointed to or someone they didn’t point to—what’s the difference?
[Rabbi Michael Abraham] It’s yielding to terror. Why?
[Speaker D] But if they pointed to him, if they—
[Rabbi Michael Abraham] pointed to him, then if I don’t hand him over, what that means is that I handed over myself so that he wouldn’t die. Because they want him, not everyone. And they can take him—they’ll kill everyone. So what I’m essentially saying is: I don’t hand him over; I don’t need to hand over myself in order to save the one they pointed to, even though he is not liable to death, but I am not required to sacrifice my life to save him—so says Rabbi Yohanan. That’s just for those who weren’t listening, hello. But if they don’t point to anyone, then the situation is the opposite: I hand him over in order to save myself—that is forbidden. Okay? It’s like, for example, if someone was captured, am I required to go in there and risk my life to save him? Because of “Who says your blood is redder?” Or because… of course not. I am not obligated to endanger myself. It is forbidden for me to do something so that he saves me, but to endanger myself in order to save him—that I am not obligated to do. So the thing we still need to clarify, the thing we still need to clarify, is the issue of the lottery. So as I said before, ostensibly there is proof from the Jerusalem Talmud that one does not make a lottery, because in the case where no one was singled out, both Rabbi Yohanan and Reish Lakish agree that it is forbidden to hand someone over. And ostensibly I would expect them to make a lottery. You see that there is no lottery when it comes to lives. But as I said before, there we are dealing with yielding to terror, not, Heaven forbid, with concern for life. If it has nothing to do with that at all, then that is why there is no lottery there, because even a lottery would be yielding to terror. But in the case of Siamese twins or in other cases, certainly one may.
[Speaker E] The proof is from Jonah.
[Rabbi Michael Abraham] Yes, now I’m getting to Jonah, exactly. Let me just note, maybe parenthetically, there is a parallel issue of fetal reduction, as it is called. Meaning, when a woman has several fetuses in her womb—three, I don’t know, it doesn’t matter—and it is clear that all three cannot survive there. There is distress. All three cannot survive. Is it permitted to kill one—abort one, meaning kill it and remove it—so that the others can continue to live?
[Speaker C] Can one even speak there of killing? After all, it’s not yet—
[Rabbi Michael Abraham] Doesn’t matter. Kill—call it whatever you want, but so that it does not come out alive. The question is whether it is permitted to do that. And there the halakhic decisors, many of them, write that it is permitted, even though it is like Siamese twins. But they explain that it is permitted because we are dealing with fetuses, because killing a fetus is not murder, like that case we saw. Therefore, from what they say it follows that in the situation of Siamese twins who have already been born, already are people, no longer fetuses, there it is indeed forbidden. And that is the same conception. Meaning, once again, the assumption is that if these are lives, then it is forbidden to do such a thing, and killing one fetus out of several is also a lottery. You insert the knife and whoever you encounter, you selected by lottery—meaning, that too is a kind of lottery. Not to stab and kill. So how should we really relate to a lottery? That was the next stage. I went through many stages in this discussion, and people went through every stage with me. So after I reached the conclusion that the Jerusalem Talmud works in my favor and not against me, they said to me: fine, but what about a lottery? There is no lottery over lives. One does not make a lottery over lives. What does it mean, one does not make a lottery over lives? The Mishnah is full of lotteries. All kinds of lotteries, acquisitions, brothers dividing an inheritance or partners dividing, they make a lottery. Everywhere you cannot make decisions, you make a lottery. Why not make a lottery here? There is Sefer Hasidim. Sefer Hasidim says that one does not make a lottery over lives. Over money, yes; over lives, no. What is Sefer Hasidim? Look in front of you, I’m reading the second passage, not the first, section 701, okay? By the way, there are several editions of Sefer Hasidim; the section numbering is not the same in all the editions. In any case, in section 701, I’m reading the last passage: “People who are on a ship, and there was a storm wind—it is not permitted to cast lots, such that if the lot falls on one of them he must be thrown into the sea. One must not do as they did to Jonah son of Amittai. Now, if a contingent commitment does not effect an acquisition in monetary matters, all the more so in matters of life. One should not rely on the lot.” A contingent commitment does not effect an acquisition, and therefore one cannot make a lottery over lives. By the way, from here it sounds a bit as though the problem with a lottery over lives is a problem of resolve of mind—it’s not a problem of murder. Meaning, the person who agreed to enter the lottery, once he is chosen, he regrets his agreement; that is a contingent commitment. Yes, it’s not the problem of murder, it’s a somewhat different problem, a problem in contract law. The consent to the contract is incomplete; there is no full resolve of mind.
[Speaker J] Why do you need consent for a lottery?
[Rabbi Michael Abraham] You need consent. We’ll see in just a moment, in just a moment. “And as it is written, ‘Saul said, cast lots between me and Jonathan my son, and Jonathan was taken’—there there was the Ark, and every judgment was from God, and they knew in what matter to cast lots.” There it was an emergency decree; the Holy One, blessed be He, said to make a lottery.
[Speaker C] Why there, with David and the Gibeonites?
[Rabbi Michael Abraham] Also—
[Speaker C] there they passed before the Ark.
[Rabbi Michael Abraham] Okay, fine, but again it’s the same situation. But he says that for us, when we have no indication from above, it is forbidden for us to do this. “And do not rely on the lot, as it is said, ‘And I will cast for you a lot here before the Lord our God.’ And even in monetary matters one does not cast lots except when dividing equally, but one may not place two portions against one portion,” etc. It doesn’t matter, that’s a different issue. So his claim is that the case of Jonah is not representative, for some reason—it is not completely clear why it is not representative, because that is what they did there. But fine, what those gentile sailors did may have been prohibited; it doesn’t have to be that what they did was permitted. Okay? But he claims that one cannot learn from there, and one must not make a lottery over lives. And many halakhic decisors bring from this Sefer Hasidim that one does not make lotteries over lives. This was new to me in the discussion, by the way—that one does not make a lottery over lives. I said this is simply not logical. Something here cannot be right.
[Speaker D] You do it in practice all the time. What? In the emergency room, in the army.
[Rabbi Michael Abraham] Things that have implications for lives. Fine. I’m saying that’s okay, and also permitted according to Jewish law. They claim that according to Jewish law it is forbidden to make a lottery over lives. I say: in Sefer Hasidim there are many strange things; I wouldn’t build on it even if it were true. Meaning, even if that is what he wrote, I wouldn’t build on it in matters of life and death, that you hand people over to death because you won’t make a lottery. After all, two will die instead of one because of this rule that one doesn’t make a lottery. What, is the prohibition against making a lottery over lives a case of one must be killed rather than transgress? It’s bizarre. So even if he writes it—but look at the previous passage and you’ll see that he doesn’t write that either. “People who cross the sea,” section 699, “and a storm wind arose against them, breaking the ship or threatening to sink it at sea, while other ships pass safely—then it is known that there is someone on the ship who is liable, and they may cast lots. On whomever the lot falls three times consecutively, they may throw him into the sea, and they pray that it should not fall upon the innocent but upon the guilty, as it is said, ‘Lord God of Israel, grant a perfect lot,’ and it is written, ‘And the lot fell on Jonah,’ and it is written, ‘Lift me up and throw me into the sea.’” And suddenly Jonah suddenly is a source, and one may make a lottery over lives. “And why did they not say to Jonah, throw yourself into the sea? Since he did not want to throw himself, they were permitted to throw him. And furthermore, there were gentiles on the ship, and it is permitted that they should throw him.”
[Speaker J] So you don’t need consent for the lottery. Ah? Here you see that you don’t need consent for the lottery. No, the question is whether after we made a lottery you don’t need consent.
[Rabbi Michael Abraham] Meaning, for the lottery itself it could be that you do need consent—meaning he agreed and afterward regretted it, that’s a contingent commitment. After he was selected. In short. “And if there is a vessel there, or a small raft, let them throw him into the sea and place him in that vessel; and if he survives, he survives. And before they enter the sea, if a storm wind should come, anyone who sinned in a matter carrying stoning, even unintentionally, they should cast lots, and on whomever it falls, they should throw him into the sea.”
[Speaker C] We need to check, if we board a flight…
[Rabbi Michael Abraham] In short, be careful around people liable to stoning; don’t travel with them on a flight or a ship. Well, that’s the Sefer Hasidim part, of course—the last sentence.
[Speaker G] But is there some article that says if people are drowning, first you save a Jew and then a gentile, or a man before a woman?
[Rabbi Michael Abraham] That’s something else. We’re not talking about saving someone who is drowning; we’re talking about throwing someone into the sea—that’s something else. Priority in rescue is a topic in Horayot; I mentioned it.
[Speaker G] So there isn’t such a priority?
[Rabbi Michael Abraham] No. He explicitly says there were gentiles there too, and there is no priority here. Maybe we’ll talk about that later.
[Speaker A] By the way, do you need to do a complementary lottery? What? A complementary lottery. You draw lots—okay, not you and not you—and the one left over…
[Rabbi Michael Abraham] What’s the difference?
[Speaker A] Because then you’re not pointing to someone; he’s just the one left by default at the end. A lottery by indirect causation. Fine.
[Rabbi Michael Abraham] The claim regarding the two goats is exactly that—that’s how they did it there. There are those who say it was by the positive designation and those who say by the negative one, Tosafot and Rashi. Right. In any case, what is really written here? There is a contradiction in Sefer Hasidim. When I saw this, it was obvious to me what the answer was. Later I saw that Rabbi Ovadia also writes this in a responsum. What is the difference between these two passages?
[Speaker D] Here it’s established, and there it’s not established—exactly like in the story with Shimon ben Shetach. You don’t know.
[Rabbi Michael Abraham] You never know. You never know.
[Speaker D] He wrote it.
[Rabbi Michael Abraham] Both are Jonah—what do you mean?
[Speaker D] “It is known that there is one who is guilty”—he writes that explicitly.
[Rabbi Michael Abraham] No, “it is known” means from the situation. You infer that clearly there is someone here liable to death; make a lottery to discover who he is. But there are other ships—
[Speaker D] My friend, and whose ship is this?
[Rabbi Michael Abraham] Ah, I see with my own eyes that something is happening here—
[Speaker D] That’s the difference.
[Rabbi Michael Abraham] Look, he says it explicitly. He says, “and a storm wind arose against them”—in the first passage, yes—”to break the ship and sink it in the sea, while the other ships pass safely.”
[Speaker A] Why does he add that?
[Rabbi Michael Abraham] Ah. By the way, this is a rabbinic midrash. I know. The rabbinic midrash says this about Jonah, that this was the situation. But he doesn’t cite the rabbinic midrash; he’s using it here… no, no, I’ll explain, I’ll explain why. What is the problem here? Look: suppose there is a general storm at sea. It is forbidden to make a lottery over lives—that I also say. Because who would be crazy enough to throw someone into the sea—why do you think that will save you? Not because it is forbidden to throw someone overboard to save yourself, but why do you think that if you throw someone into the sea, you will be saved? There’s a storm at sea. So he will drown because you threw him in, and you will drown because of the storm. How, how, how does throwing him in help? Why do you think there is someone on the ship because of whom this whole great storm came? So why are the other ships suffering? Therefore, it is clear that if the storm is a general storm threatening all the ships, you have no indication to think that someone on the ship is liable to death and that throwing him into the sea will solve the problem. Therefore it is forbidden to make a lottery. Not because it is forbidden to make a lottery over lives, but because if you have no basis at all for thinking that throwing him into the sea will save anyone, then of course it is forbidden to choose someone and throw him into the sea. Not because of some principle that one never makes a lottery over lives. That’s simply nonsense.
[Speaker D] Is it not because of the weight, that they throw him out?
[Rabbi Michael Abraham] No, no, no. It’s because he is liable to death. No, no, no.
[Speaker D] That’s Maimonides—
[Rabbi Michael Abraham] that we saw in the Laws of Injury and Damage, but here we are talking about something else. The question is whether he is liable to death or not. So I’m saying, here the claim is as follows. If there is a storm that attacks only my ship and the other ships are not being attacked—which was the situation with Jonah, that’s what the sages say in the midrash—why do they say that? Exactly because they held like Sefer Hasidim. That’s where he got his law. What? That if this is not the situation, it would have been forbidden to do it. Why did they do it? Because when the storm attacks only this ship, it’s clear that the Holy One, blessed be He, is looking for someone here. There is someone here who is liable to death. Fine, we don’t know who; let’s make a lottery and pray that the lot falls on the one who truly deserves death, we’ll throw him into the sea, and lo and behold, we’ll be saved. So in order to save lives, of course it is permitted to make a lottery and throw someone into the sea in order to be saved. But if you have no indication that this will save you, then what permission is there to make a lottery and throw someone into the sea? How can one derive from this Sefer Hasidim a prohibition against making a lottery over lives? That is not what is written here at all. On the contrary, it says here that it is a commandment to make a lottery over lives in Sefer Hasidim where it is clear to you that the lottery is truly necessary and can save lives. But if it’s not clear to you, and you just do hocus-pocus and guesses, then “you shall be wholehearted with the Lord your God”—you’re simply being a criminal.
[Speaker C] You made a lottery and selected someone, and the ship is still… so do another one. Do another lottery.
[Rabbi Michael Abraham] Apply the same law again. Now you threw him into the sea… be a mathematician. You threw him into the sea… we returned to the previous situation. We returned to the previous situation: there is a storm at sea attacking only them and not the others. What do you do? You make a lottery. Obviously. It’s the same situation; everything here has returned to the same point.
[Speaker D] But you see that the lottery didn’t help.
[Rabbi Michael Abraham] No, it helped, because there is another one. But the question is whether it saved us. The fact is that it attacks only us, once again. And if it had attacked all the ships? Wait, don’t be… wait, now you’ve thrown two more.
[Speaker C] It will increase the statistics.
[Rabbi Michael Abraham] Exactly, yes? He says maybe the storm continues because throwing him overboard was not okay, therefore the storm attacks… okay, so we all have to jump into the sea—
[Speaker A] so that the storm will be what it was before.
[Rabbi Michael Abraham] We threw the wrong one. Before there was a storm so that we would throw someone overboard, but we threw the wrong one, so now the storm wants to drown everyone.
[Speaker I] These are two different types of lotteries, two different things. In the first case where everyone has… the point is the ship’s weight, no matter what; in that case you need to release some of the weight.
[Rabbi Michael Abraham] That is Maimonides in the Laws of Injury and Damage that we discussed in previous lessons.
[Speaker I] They need to find someone…
[Rabbi Michael Abraham] But that’s not the case here. But that’s what he says. No, it isn’t; he says no, that’s not the case here.
[Speaker I] The case here is something mystical. Someone is liable to death, and because of him the ship is being attacked.
[Rabbi Michael Abraham] And that’s the second case.
[Speaker I] The second case is if they know someone here is guilty and they just need to—
[Rabbi Michael Abraham] No, they don’t know; the lottery is meant to identify him.
[Speaker I] So I’m asking, how do you know?
[Rabbi Michael Abraham] How do you know he is guilty? Before the three lotteries. How do you know there is someone guilty there? Because of the nature of the storm, that’s all. So the difference is the nature of the storm; it has nothing to do with the question of how one is saved from the storm. Are you throwing him overboard to be saved from the storm? No, you… not because of lightening the load. Right.
[Speaker I] But that’s exactly it, and therefore the lottery was made to identify the criminal. In the second case, it’s a general storm, you need to lighten the load, and therefore you need to choose who will be the sacrifice.
[Rabbi Michael Abraham] But that is forbidden. That is forbidden. No, but that’s permitted. That’s permitted? That’s permitted. Exactly—that’s the point, it is permitted. It is permitted, that is exactly the case of Siamese twins and exactly the case of Maimonides with the gentiles who attacked—if this is not terror, yes?—who want to destroy all life. Therefore it is permitted. This interpretation is not logical and also not necessary.
[Speaker C] In short, now you get a sense of proportion for what death counts mean when someone doesn’t take them into account.
[Rabbi Michael Abraham] Yes, exactly. And if it’s death counts, what is that?
[Speaker C] What is it?
[Speaker E] By the way, regarding Jonah, I saw in some midrash that they did a test—they lowered him and the sea spat him out. They put him in, submerged him. There are many midrashim, but I’m saying, the principled claim—
[Rabbi Michael Abraham] is that in Sefer Hasidim, even if it had said it, I’m not sure I would build on it a prohibition against making a lottery over lives. But in Sefer Hasidim it says the opposite. It says explicitly that one may make a lottery over lives where it is clear that the lottery will help save lives. Now, in the case of Siamese twins, it is clear that the lottery will save lives. So there it is clear that one may make a lottery over lives. Why not? Now, the last point I’ll end with is the question of consent. That came up earlier. Again, I don’t have clear proof on this matter, but my inclination, my reasoning, says that in order to conduct a lottery you need consent. Meaning, the consent of the people among whom we are conducting the lottery. Otherwise, you cannot compel someone to die in order to save you, and not even compel him to take a risk of death in order to save you. I’m not willing to take part in the game; let everyone die. There was room to say, look, if there is an orderly government in that place, the government can make such a decision even without the citizens’ consent. A government has the law of the kingdom. But if we are just a group of people, five people, say, or however many, and there is no group with a governing authority at its head, then here, to make decisions, it seems to me, you need to make decisions by consent. Meaning, they need to agree to the lottery.
[Speaker C] Now, what—
[Rabbi Michael Abraham] happens with Siamese twins, the final problem we really need to solve, is that they are minors. They cannot consent. But that’s not terrible, because it is completely clear that if they were adults and mentally competent and we asked them, they would agree. So a religious court, which is the father of orphans or the father of minors, makes the decision for them as guardian. And it does what is best for them, even if they themselves are currently not mentally competent and cannot make the decision. Certainly, if they have a guardian for both children, he makes the decisions for their benefit, the optimal decisions for their benefit, yes.
[Speaker D] So why do you say it’s obvious they would agree if you also say consent is needed?
[Rabbi Michael Abraham] No, because if someone says, “I don’t agree,” an adult—
[Speaker D] But you say it’s obvious he wouldn’t do that.
[Rabbi Michael Abraham] No, if someone comes and says, I’m crazy, I don’t agree—
[Speaker D] But if one of the two Siamese twins, if they grew up, would be crazy?
[Rabbi Michael Abraham] You can’t assume that, because you go by the majority. If there is someone who says, I don’t agree, then he said it. If there is someone whose position you don’t know, why assume he’s one of the crazy ones? He is a reasonable person—that is the accepted legal assumption. So therefore I say that even the problem of consent does not exist here, because clearly we want the… it cannot be that because they lack mental capacity, both have to die. That is absurd. We have no one to ask, so because we have no one to ask, we let both die? That makes no sense. Rather what? We make the decision for them according to what we estimate they would want if they were adults; that is what they would say. So therefore we basically make the decision for them. Now, that brings me back to the example with which I opened, one of the examples with which I began: someone is standing on the roof of a burning house, and they tell him you are forbidden to jump down, because if you jump down you will surely die, right? Therefore you are forbidden to jump down, because you are killing yourself with your own hands. Meaning—not certainly die, sorry—there is a high chance that you die. Yes? Clearly that is not true. Meaning, clearly if I stay there, then I will surely die, right? If I jump down, maybe I die and maybe not. So clearly I am allowed to jump. Just one second. Clearly I am allowed to jump, and now likewise it is clear not only that I am allowed to, but that this is also what I will do, what a rational person is supposed to do. Okay? And therefore, if I apply that same simulation to the twins, then in fact each of the twins is in the position of someone standing on the roof of a burning house. He basically says: if I do not agree to the lottery, I surely die; the fire burns me. If I agree to the lottery, there is a fifty percent chance I survive and a fifty percent chance I die. Therefore it is clear that this decision is for the benefit of both of them, even for the one who is going to die. Because if the decision were not for the benefit of both, then there is no rule of acting beneficially on someone’s behalf; I cannot make decisions for him. But my claim is that the decision is for the benefit of both, because each one before the lottery—because before the lottery he gains a fifty percent chance to live; as things stand now he is one hundred percent dead, and this way he gains a fifty percent chance to live. True, in the end the fifty percent is realized for one of them and not for the other, but the consent is given in advance, before the lottery is conducted. Before the lottery is conducted, carrying out the lottery benefits both of them; it gives each one a fifty percent chance to survive. Therefore it is clear that this is what should be done. What? The canteen of water in the desert. The canteen of water in the desert—there Rabbi Akiva ruled that your life takes precedence over your fellow’s life. Why don’t they make a lottery there? There the water belongs to one of them. When the water belongs to one of them, he need not place himself into a fifty-percent doubt when he is certainly alive. But if the water belongs to both of them jointly, and there is not enough for both—if both drink they die, and if one drinks he lives—there the halakhic decisors indeed wrote that one makes a lottery. Why make a lottery? For the same reasoning we said. Because in the current situation both surely die. Through a lottery, each has a fifty percent chance to live. That is better for both of them. And that is what Mishpat Shalom wrote in section 175, that where neither one has ownership, a lottery is the right way. And that is what I wanted to say: that consent to a lottery in a situation of danger to life is for everyone’s benefit.