Dilemmas in Matters of Human Life – Lesson 7

Table of Contents

• [0:00] Introduction to the topic of separating Siamese twins
• [1:15] Methodology in writing halakhic articles
• [3:30] The intuition of halakhic decisors according to Rabbi Soloveitchik
• [4:30] Subjectivity in halakhic interpretation (LOW)
• [5:50] The need for caution in using intuition for interpretation
• [7:27] Preferring linguistic interpretation over reasoning
• [10:17] Agenda and Jewish law
• [26:27] The parachute paradox of two people
• [27:39] The question of one or two—an analysis of the organs
• [29:17] The jug of water versus surgery—is this a pursuer?
• [35:35] The Chazon Ish and the trolley dilemma
• [43:29] Drawing lots over lives—what is the Jewish law?
• [50:48] The Jerusalem Talmud in Terumot—the sacrifice of one for a group

Summary

General Overview

The text discusses the issue of separating Siamese twins as a continuation of the discussions of be killed rather than transgress, saving oneself at the cost of another’s life versus the law of a pursuer, and places at the center a fundamental question about the prohibition of murder and the value of life: is it a prohibition on the act, or a prohibition on the result? The speaker opens with a methodological introduction to halakhic ruling, in which reasoning, intuition, worldview, and tradition all influence the interpretation of sources, while demanding intellectual honesty and distinguishing between forcing the language and forcing the reasoning. Starting from a news event at Tel HaShomer and confronting the rulings of contemporary halakhic decisors, he argues that consequentialist reasoning sometimes requires action that saves life even at the price of shortening the life of someone who in any case will die, and he looks for support and precision for this against sources such as the case of Rabbi Moshe Feinstein in Philadelphia in ’76 and the Jerusalem Talmud in Terumot as ruled by Maimonides, while presenting an internal difficulty in the sources themselves in light of the reasoning of “who says your blood is redder?”

The Framework of the Discussion: Siamese Twins and the Question of the Prohibition of Murder and the Value of Life

The speaker wants to enter the discussion of separating Siamese twins and connect it to the picture he has built so far about be killed rather than transgress, between saving oneself at the cost of another’s life and the law of a pursuer, along with intermediate cases. He frames as the broad question the nature of the prohibition of murder or the value of life, asking whether this is a prohibition on an action or a prohibition on a result, and whether one makes calculations like “how can I gain as many lives as possible,” or refrains from an act of murder even when the result would be life-saving. He presents the question as especially decisive in cases where one action kills one person but saves another, whereas refraining from the action leads to both dying.

A Methodological Introduction to Halakhic Ruling: Intuition, Reasoning, Tradition, and Intellectual Honesty

The speaker says he wrote a series of articles in “Techumin” on topics such as killing a burglar, Siamese twins, and organ donation, and claims that every article came out against what is commonly ruled, so he prefaced them with a “full disclosure” about his initial inclination. He says he was accused of “making Jewish law like plasticine” and using it to prove whatever he wanted, and he answers that he “admits the facts and denies the charge,” because in his view a halakhic decisor may legitimately have an initial inclination so long as intellectual honesty is preserved. He attributes to Rabbi Soloveitchik the statement that a halakhic decisor immediately knows the answer and only afterward builds the arguments, and he distinguishes between halakhic intuition that grows out of tradition and a certain form of thinking, and moral intuition—“it just doesn’t fit”—that motivates choosing between interpretive options.

Reasoning versus the Language of the Source: “Better to Force the Language than to Force the Reasoning”

The speaker cites a yeshiva saying attributed to the Beit Yosef in Yoreh De’ah 328, according to which it is better to force the language than to force the reasoning, and explains that considerations of plausibility are determined not only by language but also by moral and logical considerations. He argues that the Talmud and the medieval authorities (Rishonim) sometimes force an interpretation because another reading is not reasonable, and every ukimta illustrates this. As an example he cites the Shakh in Choshen Mishpat, who offers a reading opposite to what seems to emerge from the plain meaning of the medieval authorities (Rishonim) and presents it as though they all say what he says, and he explains that this is legitimate when “what seems reasonable” itself counts as an interpretive consideration.

What Counts as “Jewish Law”: Talmud versus Contemporary Halakhic Decisors and the Question of Authority

The speaker asks what the binding “text” for interpretation is: the Talmud, Maimonides, later authorities (Acharonim), or contemporary halakhic decisors, and distinguishes between the authority of the Talmud and the lack of formal authority of present-day decisors. He argues that with contemporary halakhic decisors the question is “who is right,” not “what do they say,” and therefore one may disagree after understanding their reasoning, whereas with the Talmud there is a dilemma because of its authority. He adds that where the Talmud contains a factual or scientific mistake, this should not be treated as authority, and in that context mentions statements attributed to Rabbi Steinsaltz about scientific error as something that does not make one a “halakhic decisor.”

The Tel HaShomer Case and Consequentialist Intuition in Favor of Surgery

The speaker says he heard on the news about conjoined twins born at Tel HaShomer to Haredi parents, where separation would mean that a shared organ could serve only one of them and the other would die, while if they did not operate both were expected to die within a few months. He relates that the halakhic decisors instructed the parents that surgery was forbidden, they did not operate, and both died. He describes his response as an initial intuition that “this cannot be,” because if in any case both will die, then refraining from surgery causes the loss of two lives instead of saving one. He says he corresponded with Mordechai Halperin in Jerusalem, who argued that there was not a single halakhic decisor in the world who permitted the surgery and that he had checked both the sources and actual inquiries sent to halakhic decisors, and the speaker replied that nevertheless “I have no doubt that one must operate,” and asked for arguments rather than authority.

The Philadelphia ’76 Event: Rabbi Moshe Feinstein, Asymmetry, and the Parables of the Parachute and the Mountain Climber

The speaker presents as a formative case the event in Philadelphia in 1976, reported in the Philadelphia Inquirer and not included in Rabbi Moshe Feinstein’s responsa, and notes that Rabbi Shabtai Rappaport was involved and said they had spoken with Rabbi Moshe’s family. He describes twins joined at the chest, where one “depended on” the other and the situation was not equal, and he says that a doctor also approached a priest who ruled, by way of the parable of the parachutist, that it is permissible to kick off the person hanging onto the parachute because otherwise both will die. He says that Rabbi Moshe Feinstein brought a similar parable about a mountain climber and a peg, and asked questions about whether they were one person or two, and about their reactions and character, because if this is “one person” then the dilemma is not one of killing but of “surgery” to save the person. He attributes to Rabbi Moshe Feinstein an analysis emphasizing asymmetry: one had a defective heart and the other a whole heart, and therefore one was secondary and endangered the other, making it similar to the peg and the parachute, where there is ownership and asymmetry.

Saving Oneself at the Cost of Another’s Life, “Who Says?”, and the Law of a Pursuer: Asymmetry versus Symmetry

The speaker connects the prohibition against killing one person to save another to the principle of “who says your blood is redder?” and raises the possibility that where there is “redder blood” in a case of asymmetry, perhaps there is room to permit it. But he emphasizes that he already argued earlier that asymmetry by itself does not permit this, not even in a case of property versus life. He claims that here another factor joins in: in any event both will die if no action is taken, and therefore this differs from a case where killing one person causes that person to lose life that he would otherwise have kept had he not been killed. He says that in his view Rabbi Moshe Feinstein permits only because of the combination of asymmetry plus the alternative of both dying, whereas in a symmetrical case Rabbi Moshe Feinstein would not permit it, and he notes that according to Halperin as well, “where there is symmetry” all halakhic decisors forbid it, while where there is asymmetry there is a dispute.

Action versus Refraining: The Jug of Water, the Chazon Ish, and a Rescue Act that Brings About Another’s Death

The speaker points out the difficulty of comparing this to the jug of water case, because in the jug of water there is no active act of killing, only refraining from giving, whereas in separation surgery there is an action that appears to be killing. He cites the Chazon Ish in Choshen Mishpat, section 25, about a driver who swerved and killed someone on the sidewalk in order to save someone else, and argues that the Chazon Ish defines this as a “rescue action” and not a “killing action,” even though the result is death, and he presents this as a hard borderline to define. He concludes that the parables of the parachutists and mountain climbers were chosen because they include an action that causes a fall and death, unlike the jug of water, where the person dies “on his own.”

The Symmetrical Case and the Claim for a Lottery versus Sefer Chasidim

The speaker moves to a symmetrical case in which the two twins share one heart and both use it equally, and says that all halakhic decisors agree that surgery is forbidden, so “you have to leave them both to die.” He compares this to a person on the roof of a burning house who, if he stays, will certainly die, but if he jumps has some chance of dying, and asks whether it would then be forbidden to jump on the grounds that this is a “killing action,” presenting that as absurd. He proposes choosing by lottery whom to save, but says that Halperin replied that “you do not draw lots over lives” and cited Sefer Chasidim in the name of Jonah the prophet, and the speaker says he checked and in his opinion that is not what it says there, and even if it did, he has trouble building on it.

Mutual Pursuit: An Attempt to Create Permission to Choose When Each Endangers the Other

The speaker raises the possibility that in the symmetrical case one might view both of them as “mutual pursuers,” since each one’s use of the shared organ endangers the other, and argues that if there is permission to kill either one of them in order to save the other, then the only problem is the technical one of choosing, in which case a lottery would be possible. He cites Rabbi Shlomo Eiger in his novellae to Ketubot as claiming that in mutual pursuit “the law of a pursuer does not apply,” but the speaker limits that to a case like a duel, where in any event only one will die, and therefore passive non-intervention is preferable. But in Siamese twins the alternative is that both will die, and therefore “obviously I have to intervene.” He declares that even without the law of a pursuer, he thinks consequentialist reasoning requires a lottery and surgery, and he parallels this to the question of allocating a heart for transplant.

The Heart of the Dispute: Prohibition of the Act versus Prohibition of the Result, and Temporary Life versus Full Life

The speaker sharpens the point that the reluctance of the halakhic decisors who forbid the surgery stems from viewing a “murderous act” as an independent prohibition and not a consequentialist one, whereas in his opinion, in a case where inaction causes both to die and action saves one, the action is “life-saving” and not “life-taking.” He connects this to the question of temporary life versus full life and cites an argument in the name of the Ritva that the prohibition is shortening life, so that if the time of death of both twins would be the same with or without separation there might be room to permit it. But he says this is hard to accept on a consequentialist level, because “you spare temporary life and lose full life.” He concludes that the case illustrates the tension between result-based considerations and the language of prohibition of an act.

The Jerusalem Talmud in Terumot and Maimonides: Handing Over One to Save Many, and the Difficulty in Light of “Who Says?”

The speaker cites the Jerusalem Talmud in Terumot about a group encountered by gentiles who demand, “Give us one of you and we will kill him, and if not, we will kill all of you,” where the law is that “even if all of them are killed, they may not hand over a single Jewish soul,” but if “they singled one out, such as Sheva ben Bichri,” they may hand him over, with a dispute between Reish Lakish and Rabbi Yochanan whether he must also be “liable to death.” He cites the story of Ulla bar Koshev and Rabbi Yehoshua ben Levi in Lod, and Elijah the prophet’s response, “Do I reveal myself to informers?” and the reply, “But is this not the teaching of the pious?” He then presents the ruling of Maimonides in Laws of the Foundations of the Torah, chapter 5, halakhah 5, that one may not hand someone over unless they singled him out and he is “liable to death like Sheva ben Bichri,” and even then “one does not instruct them to do so ab initio.” The speaker argues that in terms of the structure of the dilemma, this is “exactly the same case” as Siamese twins, and that those who disagree with him bring this as proof that one may not kill one person to save others even when the alternative is that all will die. But he says that the commentators on Maimonides themselves ask an internal question about the Jerusalem Talmud: if all of them will die in any case, then apparently the reasoning of “who says your blood is redder?” is weakened, and they offer forced answers. He concludes that the first question is to understand how the Jerusalem Talmud and Maimonides “themselves say” something that runs into difficulty against “who says?”, and only afterward to discuss the practical halakhic implication for Siamese twins.

Today I want to deal with the topic of separating Siamese twins, and it will add another certain layer to the picture I’m trying to build here. Until now I’ve been talking about the general principles of “be killed rather than transgress” — that is, saving oneself at the cost of another person’s life, as against the law of the pursuer, and all the intermediate situations, the extreme cases on both sides. Here I wanted to enter into a broader question that somehow isn’t directly connected to all the discussions we’ve had until now, but it affects them, and that is the question: what exactly is the nature of the prohibition of murder, or the value of life in general? I already spoke about this right at the very beginning. Is it a prohibition on an action, or a prohibition on a result? Do I make calculations about how to gain as many lives as possible, or do I need to refrain from doing the act itself, the prohibited act of murder? But before that I’ll give a kind of methodological introduction, a somewhat broader look at halakhic ruling. When I wrote a series of articles in Techumin — literally issue after issue at a certain stage, there were a few years like that — one of them was about killing a burglar, what we discussed last time. Another was about Siamese twins, another about organ donation, and others about different things not connected to life-and-death dilemmas. And each such article basically said the opposite of what people usually say in that field — otherwise why write an article? Otherwise you’re just recycling what everybody says. But each such article, I think all of them, opened with a declaration of intent, with what’s called full disclosure. Meaning, like I told you last time about killing a burglar — in the previous topic, about killing a burglar — I said that from the outset my basic inclination is an American inclination. Meaning: whoever comes into my house isn’t leaving. Now we have to see what Jewish law does with that, how it works, what to do. Even guests? He doesn’t leave on his feet, he leaves on a stretcher. Right. So that point — and in all the articles I wrote this. I started with that, and then I tried to show how it works halakhically. And since in the end the thesis was contrary to what is commonly ruled in that field, I got quite a few responses telling me that basically I’m making Jewish law into plasticine, right? I’m basically using Jewish law to prove what I want to prove. In other words, I’m doing what I want, not what Jewish law says. So I would tell people — each time the conversations were different, but in general — that I admit the facts and deny the charge. Meaning, I completely agree that I do indeed tend in the direction my inclination leads me, but I don’t think that’s illegitimate. I think that’s actually how I’m supposed to work. And maybe I’ll sharpen this a bit more, the meaning of the matter, because it will come up here too. There’s Rabbi Soloveitchik, whom I mention somewhere, or whom I remember quoting, I don’t remember the exact source, who says that there is no halakhic decisor who, when a question comes to him, doesn’t know the answer immediately. Meaning, the answer, the detailed responsum he writes, is always some kind of justification after — after he has already shot the arrow, he draws the target around it. I’m not one hundred percent sure that this sweeping or total formulation is precise; I’m not sure he meant it quite that way. But he meant to describe a phenomenon that clearly exists. Meaning, decisors often build a responsum, but the halakhic result doesn’t emerge only after they finish clarifying the topic. They have some initial intuition; they think in advance what the Jewish law ought to be in such a case, and afterward they show it through halakhic sources, and sometimes they even maneuver the halakhic sources a bit — if it can be interpreted this way or that way, then they’ll take it in the direction their intuition tells them. That definitely exists, and it’s also completely legitimate. It’s completely legitimate so long as one maintains intellectual honesty. Meaning, the fact that I have an initial inclination is perfectly fine; I think that decisors who don’t put it on the table also have it. There is no decisor who is a computer. Everyone has some initial tendency as to where his mind leans. But it’s not what he wants to do — that’s the imprecise wording I spoke about earlier — but rather what he thinks is right to do. And that’s not the same thing. We are not driven by interests. But the question is what I think is right, and that is a sevara, a reasoning. Reasoning certainly takes part in the interpretation we do in every context, including the halakhic one. I think you can see this very clearly in various current issues: if you ask a Haredi decisor, you’ll get one answer, and if you ask a Religious Zionist decisor, you’ll get another. So what does that mean? That each one studied the topic independently and somehow in every question this one always reaches this answer and that one always reaches that answer? Obviously they have some worldview, and that worldview affects the way they interpret the sources. And that’s fine; it’s not criticism. A person is the landscape of his birthplace, meaning he is the total sum of all his intuitions and reasonings, and that takes part in the interpretive act. But one has to be very careful not to subordinate our interpretations to our intuitions. Meaning, to take an incorrect interpretation just because I want to reach some result — that isn’t intellectually honest. I hope that’s not what I do, and likewise other decisors — but at least I try not to do it. But that’s something else. There is a difference between a situation in which my reasoning tells me that this direction is the more plausible one, and now I check whether I can really see it in the interpretations, and a situation where I dictate the result, shoot the arrow and then draw the target around it — that’s not honest; that’s not what one should do. I’ll even say what’s called reverse engineering, yes, exactly. But that claim goes even further. Because suppose I have two possible ways to interpret something, but one of them is more plausible — from interpretive considerations, more plausible — but it leads to a result that seems less sensible to me, less in line with my intuition. That really is a dilemma, because here one can say: be intellectually honest. If that’s the interpretation, then that’s where you’re supposed to go; what difference does your intuition make? You want to know what Jewish law says, not what you yourself think. On the other hand, it’s obvious that what is more plausible and less plausible is determined not only by interpretive considerations but also by moral considerations, by conceptual considerations of one kind or another. That is part of what determines whether something is more or less plausible. And therefore in the yeshivot they commonly say — I think the source is the Beit Yosef in Yoreh De’ah 228 — that he said, I don’t remember the exact wording anymore, that it is preferable to strain the language than to strain the reasoning. Meaning, if I have some dilemma between an interpretation that seems more faithful to the wording of the source and an interpretation that seems more correct to me, I will prefer the more correct interpretation even if it is a bit more forced linguistically. Of course there are limits; you can’t go wild and force the text just so it reaches some place that seems more reasonable to me. So there’s some common sense here, some logic that has to be used. But it is not true that if it is more strained linguistically then that means it is not the correct interpretation. Do they bring all the possibilities in the responsum and then go with… You could say it like that, but even that isn’t necessarily required. He doesn’t have to bring the possibilities he rejects. That’s already a question of method, how you present your ruling. But you certainly need to take them into account when you think. What you write afterward, I don’t know, but when you think, take the possibilities into account, choose the one that truly seems more plausible to you. But plausible is not only interpretive considerations; it is also logical, moral considerations — that is part of the interpretive process. Therefore in the Talmud and also among the medieval authorities (Rishonim) you see that they sometimes force an interpretation of a passage because the straightforward interpretation doesn’t seem logical to them. What’s that? But they justify it… They justify it by saying it isn’t logical, but from an interpretive point of view it’s obvious that it’s forced. Every ukimta is like that. There’s no shortage of ukimtot. So why is that? Because it’s clear to us that if something is logical, that itself is an interpretive consideration. I think I already mentioned the practice of the Shakh, where he no longer… everything is subjective, brother, everything is subjective. What do you mean “a person”? Everything is subjective; all our interpretations are subjective. Yes, there’s the practice of the Shakh that I already mentioned. You come to some topic — the Shakh, with passages the size of a soccer field, in Choshen Mishpat usually — you come to some topic, it is clear to you that all the medieval authorities (Rishonim) say one thing, and then you see the Shakh saying the opposite. And not only does he say the opposite, he takes all the medieval authorities and shows you that they all say like him — against what you thought. It’s consistent; one Shakh after another. You can see it. Meaning, he… now people sometimes laugh about that Shakh. In my view that’s wrong; he’s right — what does it mean “right”? He’s right in principle. Meaning, if you really think that this is what makes sense and the other possibility makes no sense, that itself is an interpretive consideration. So if I can read the Rashba… okay, so that’s why I say that in that sense there is nothing wrong with reasoning, with an agenda if you want to call it that, there is nothing wrong with an agenda, yes? Aharon Barak once looked for judges without an agenda, yes, Ruth Gavison and others. Yes, Ruth Gavison — his agenda was to look for judges without an agenda, exactly. When you speak about reasoning as opposed to interpretation, as opposed to text, do you mean reasoning that is only external logic and morality, or da’at Torah? After all, morality itself is also some accumulation of past rulings, or of everything — I don’t know, my total makeup, it’s hard for me to decide exactly where the intuition I have comes from. Obviously part of it is the society I live in, part of it is the sources I’ve already studied, literature I’ve read of all kinds, lots of things; a person is the sum total of himself. But the Torah was not given to ministering angels; it was given to human beings, and human beings are the total sum of themselves, and decisors are human beings too. I accept the ruling of… Yes, right, so I’m saying: a person who comes to Jewish law comes with all that he is, and what seems right to him is perfectly fine. That’s not a fault; on the contrary, what I want to claim is that that is actually how one should work. One should not try to be some kind of computer stripped of the intuitions one has. One should be honest and put them in their proper place if it is clear to you that you are not right in the topic. And therefore in the end, if you have some clear agenda, it’s worthwhile to put it on the table, so that you can more honestly examine whether you are really maintaining intellectual honesty, or so that others can examine it. And therefore in these contexts I really did always put on the table what I thought at the beginning, and afterward let them examine whether my arguments are valid or not. Look at what I said about killing a burglar — it seems to me that the arguments are good, but I don’t know — I put my initial outlook on the table. But I’ll take one more step within this introduction. What Rabbi Soloveitchik says is relatively conventional. Because what Rabbi Soloveitchik says is that basically the decisor has some intuition about what the Jewish law says, and then he gathers the proofs or builds the responsum in order to support his conclusion. But that still doesn’t mean — it still doesn’t mean — that you are talking about a personal opinion. It means you have an intuition about what the Jewish law says. But one can take this a bit further. Suppose I don’t know what the Jewish law says; I know what seems reasonable to me. Okay? Not that I have an intuition as a result of having studied halakhic sources and so on — that too is part of the matter, as we discussed earlier — but my intuition does not say “Jewish law must say this”; it is not a halakhic intuition. Rather, my intuition says “it doesn’t fit,” meaning morally this cannot be, or because of one consideration or another this can’t be — that is the intuition I’m talking about. What? Okay, does that too permit or justify the same kind of work? That is not written in Rabbi Soloveitchik — at least not necessarily. It may be that necessarily he is speaking only about the intuition as to what the halakhic sources say, but that does not necessarily mean what my own intuition says, morally or otherwise, and then maneuvering Jewish law accordingly. There are things in Jewish law that are contrary to my moral intuitions, yes, that’s clear; the two do not fully coincide. But where there are several interpretive possibilities, I do think I can, and should, choose the option that fits not only my halakhic intuition but also my moral, human intuition, my reasoning. Okay? And that is a somewhat more far-reaching statement, although I also think it is true.

All right, so now I want to bring in one word that has been missing from this discussion, and I’m not sure where to place it — and that is tradition. After all, killing a burglar as against the burglar’s monetary liability is not a new topic. So it could be that Rabbi Soloveitchik is talking about having such a tradition and looking for how to prove it. That’s exactly what I was saying. Not intuition — tradition. No, tradition isn’t the case. It’s a tradition of a way of thinking; it’s tradition in the broader sense, in that it creates my halakhic intuition. But that’s a halakhic intuition in the first sense I just spoke about. The first sense says that in my opinion, this is what the halakhic sources say. It does not mean that this is what I think is just or what I think is correct. So the first kind of intuition — I think that’s more or less it. Sometimes you have an actual tradition about the Jewish law itself, what it says — permitted or forbidden, okay. I’m speaking even in a broader sense: the mode of thinking, the halakhic common reason, obviously that is it. Okay? But that doesn’t mean that that’s necessarily what I think. It only means that it’s clear to me that this is what Jewish law says, and now I check the sources. Regarding Siamese twins, the matter came up for me in exactly that way. I heard on the news — this was before I wrote the article, maybe a year before or after, I don’t remember — I heard on the news that a pair of conjoined twins had been born at Tel HaShomer. They were joined — I no longer remember whether at the head or the heart, I don’t remember where. The claim was that they were a pair, meaning these twins had been born to Haredi parents. And there was a dilemma whether to operate on these twins, because with Siamese twins, at least of this type, there is a shared organ. Meaning, either one brain, or one heart, in other words there is some shared organ that both of them use. So they are not merely attached and we just cut them apart and that’s it. Once we separate them, that single organ can serve only one of them, and the other dies. Okay? And the dilemma was whether to operate on these twins — in which case at least one would be saved — or to leave them as they were, in which case they said that within nine months or something like that they were expected to die. And on the news they said that the decisors — the parents had asked decisors — and the decisors told them that it was forbidden to operate, and in fact they did not operate on the twins and both died within a few months. And when I heard that report it really agitated me, because again, this is exactly what I said earlier: the initial intuition — I had not examined the topic — and the initial intuition said that this is impossible. Meaning: it cannot be. It cannot be, because if you know in advance that both are going to die, then it is not that you are killing one in order to save the other. If you don’t do it, they’ll both die. So how can it be that because I don’t want to be a murderer — meaning I don’t want to kill a person — what do I do? I leave him to die without my killing him, together with another one. Okay? It sounds unreasonable. Now I don’t know, I had no halakhic sources, I had nothing, but it did not sound reasonable. Okay? And that is the kind of consideration I’m talking about. Then I began to get into this topic a bit; I think that was the beginning of my involvement with life-and-death issues and everything we are discussing here. And the result I came to in the end — of course not surprisingly — was that one ought to operate and leave one alive. So I went to several people who had dealt with the subject — actually not went, I corresponded with several people who dealt with this subject. Mordechai Halperin from Jerusalem, for example, who deals a lot with medical ethics; he and Steinberg are considered the two experts in halakhic medical ethics, and not only halakhic. Both are doctors and both are rabbis. And I spoke with Mordechai Halperin at length; we had many arguments about it. He told me, listen, I checked the matter — there is not a single decisor in the world who permits the operation. Not a single decisor in the world who permits operating. And he checked not only in sources; he asked around. I said to him, listen, maybe you’re right, but I have no doubt that one ought to operate. Meaning, explain to me why not. Leave aside what the decisors say — tell me the reasoning. He said the arguments he was making, he said various things; to me it sounded really unconvincing. In the end we remained in disagreement, and I published — I wrote this article. So that’s why I say that here there really was a very, very basic agenda. Just hearing the case was enough to get me to deal with it, because from the outset it was clear to me that this could not be. Fine. Now we have to check what this business actually means. And perhaps one more sentence that needs to be inserted here, because it continues the introduction I gave: the question is also what is called Jewish law. Meaning, what exactly am I supposed to interpret according to my reasoning, or according to I don’t know what, these kinds of interpretations? Is it the Talmud? Is it Maimonides? Rabbi Akiva Eiger? Mishnah Berurah? Rabbi Ovadia? I don’t know, contemporary decisors. What exactly is called Jewish law? Suppose I can interpret the Talmud according to what I think — you know what, even the medieval authorities — but that goes against all the decisors. So what does that mean? Am I supposed to bend? Am I supposed to say: listen, you can’t push your agenda into Jewish law; this is what Jewish law says? The question is what “Jewish law” means. Is Jewish law what today’s decisors say, or is Jewish law — I don’t know — I examine the halakhic sources as they examined them and I come to a different conclusion. So am I also not supposed to do that? Meaning, one has to distinguish here between three levels. About one of them I have no doubt that there I certainly must bring in my own reasoning. The question is what to do where there are different possible interpretations of the Talmud — not of a contemporary decisor, or of a later authority (Acharon), or of a medieval authority (Rishon). We talked about this when we discussed the issue of authority. Now in this case, since we were dealing with contemporary decisors, I didn’t even have a hava amina. Meaning, what do I mean by hava amina? It could certainly be that I am wrong; I wanted to hear his arguments, because none of them is a fool. If they all say this, then apparently there is something there that I’m missing. So I asked him: tell me the arguments, what do you say about this claim, what do you say about that claim? In the end I was not persuaded, and therefore I remained with my position. But I’m saying that once I had examined what they said and remained in my position, I have no problem with that. In the context of the Talmud it is somewhat more complicated, because the Talmud — unlike contemporary decisors, we talked about this in the authority discussions — has authority. Now if the Talmud really means to… On the other hand, if I rule differently from Rabbi Ovadia, or from Rabbi Elyashiv, or from whoever it may be, then fine — so what happened? I think one way and they think another, and we disagree about what Jewish law says. They have no formal authority. They are great Torah scholars, I want to hear what they say, what their arguments are, in order to see whether I am right or not. But if I’ve heard the arguments and reached a conclusion, then I’ve reached a conclusion. But you said not everyone can do that. Right, not everyone can do that. Everyone can do that; the question is whether it’s advisable. But yes — we talked about this when I discussed the issue of authority; I asked there who qualifies, and I brought the Rosh in Sanhedrin, who says that in effect there is no authority after the Talmud, but only someone who qualifies can do it. So what does “qualifies” mean? If in order to disagree with Rabbi Ovadia I myself have to be Rabbi Ovadia, then that’s meaningless, that won’t do. But if “qualifies” — and I think that’s what he means — means that you are skilled in learning, then even if you know less than Rabbi Ovadia or than whichever decisor you are disagreeing with, still you are not missing things such that if you speak with someone you’ll suddenly discover that you’ve been talking nonsense. Meaning, you are not at that stage of learning. You may be wrong, you may argue with them and everything is fine, but you are formed and coherent in your own right. Then you can do it. There is no restriction on who can do it besides common sense. Meaning, someone who is not sufficiently skilled, someone who will speak with the decisor and the decisor will show him that he is talking nonsense — then there is no point in following what you think. But if even after he spoke with you, and you are already skilled in learning and still were not persuaded, and you have another position — go with your position. So I’m saying, there is a difference between standing מול decisors and standing מול the Talmud. When you stand before the Talmud, the Talmud is a source of authority. So with the Talmud there really is a dilemma. If I think that the straightforward reading of the Talmud is X, but it seems more reasonable to me to rule Y, then I say: I will push the Talmudic interpretation in order for the halakhic result to be Y. That can raise a problem. There is room to push. Yes — so I’m saying, I think even there one can do it within the bounds of good taste, but there I hear the argument that says: listen, the Talmud is a source of authority; you are not going to argue with the Talmud. The question is what the Talmud says. Now decide what you really think the Talmud says. So here there is the dilemma: interpretation based on reasoning, interpretive rules, and the combination of the two together tells me what the Talmud says. But opposite Rabbi Ovadia, the question is not what Rabbi Ovadia says; the question is who is right. That is something completely different. So here it may be that I was not persuaded and I think I am right, so I remain in my position. So in this matter too one has to know about which texts, or which sources, we are talking. When the situations are really exactly alike one to one, then you can’t go against… No, but even if they are alike, you can disagree with the decisor. No, even if the situations are exactly the same one to one — I don’t think like him, so why do I need to go like him even if it’s one to one? Ah, not in the Talmud. In the Talmud you can’t. Once you were given a situation and ruled on it, and then… No, obviously. So as I said, intellectual honesty has to be that you interpret — you don’t do what you want, you do what you think. Meaning, if you really think this is what the Talmud says, then do it. If you think not, then not; that is not what the Talmud says. Now, what the Talmud says — I said that this is a sum or weighting of interpretive considerations together with logical considerations. The sum of the two together. By the way, there is room — we discussed this in the context of authority — that where I think the Talmud contains a factual mistake, a scientific mistake for example, something it didn’t know, then there too I don’t think there is room to see authority. We discussed this right at the beginning in one of the first sessions. If I brought things from Rabbi Steinsaltz, from Rabbi Steinsaltz’s doctoral dissertation — from his father, from here. That if there is some factual or scientific mistake there, then those things are not authoritative. Had they known that, they too would not have said it. It’s not that I disagree with them; I simply know things they didn’t know, that’s all.

All right, so let’s enter the topic a bit more. Basically with Siamese twins, the foundational story in this matter — not the first, but I think the one usually quoted — is a story involving Rabbi Moshe Feinstein, and it’s impossible to forget because it was in Philadelphia in 1976, the Seventy-Sixers, as they say. So the report appears in the Philadelphia Inquirer. Meaning, it did not enter the responsa of Rabbi Moshe Feinstein; it’s not exactly clear why. Maybe he did not want to include it in a responsum so people would not draw conclusions from it, because it was too sensitive a topic — I don’t know — but it is not there. You could ask Rabbi Shabtai, because he was involved in it, Rabbi Shabtai Rappaport. He spoke with the whole family there; they consulted the whole family of Rabbi Moshe Feinstein. Yes, he spoke about it. There was a case there too, of two Haredi parents, as far as I remember, again with twin girls. I don’t know exactly how it was constructed, but that’s how it is described. And one depended on the other. They were joined at the chest and one depended on the other. And the question… and one had two atria and sat on one of the chambers of the other. Okay, something… If these were Haredi parents from Cherry Hill? Possibly. I’m not expert in the matter, nor in physiology, but that is the description I read. And they deliberated there whether to do this separation surgery. And again, the expectation was that these girls would die if there were no intervention. If you do separation surgery, then of course one of them dies and the second one is hoped to remain alive. That dilemma reached them — they were hospitalized and the doctors were also struggling with this dilemma. The doctors who were asked actually to do it were also struggling with it, and one of them went to ask his priest what he thought about the matter. And the priest answered this question with some kind of parable, that’s what I once read. He answered it with a parable about a parachutist jumping from a plane; he is holding onto his parachute, and another parachutist next to him is also falling, but his parachute has torn. So he grabs the legs of the first parachutist, and now both of them are hanging on the first parachutist’s parachute. But a parachute can’t carry two people, meaning both are going to crash. The question is whether he is allowed to kick him down and remain alone with his own parachute. He said, simple reasoning says yes. What does logic say — leave both of them to die? If he doesn’t do that, both will die, so what do you gain? Therefore it is obvious that he may do it. That was his parable. And Rabbi Moshe Feinstein brought a parable that is more or less the same — I assume he knew about that — but it’s odd, because he brought a similar parable about a mountain climber. He says that a mountain climber drives a peg into the mountain and is held by it, and another climber next to him, whose peg broke or came loose, grabs this climber’s leg. And again the question is whether he can kick him down. Exactly the same thing. So I don’t know — if he hadn’t heard of that, then it’s a really surprising similarity in the two discussions. If he had heard it, then why change the parable? Maybe because of “do not follow their ways” with Christians? I don’t know. In any event, both reached the conclusion that one may do it. But along the way Rabbi Moshe Feinstein asked the nurses all kinds of questions — again, that’s what the accounts say, these are secondhand accounts once more — he asked the nurses, for example: is this one person or two? How do they react? Do they have the same character or not the same character, and various things of that sort. Meaning, there was room to see this pair as one person. If it is one person, then obviously you can remove one organ to save him, right? Just as we perform surgery on one person. Now here they were not attached at the head — again, I don’t remember all the details of the event, I haven’t reread it now — because if they are attached at the head that is a more relevant question, since then the brain itself is attached. Here it was the heart, so I don’t know exactly. But that is what he asked there, at least as I recall. And this is again an example of the sort of consideration one makes. If it is one person, then there is no dilemma. You simply remove the organs that need to be removed in order to save the person. But if these are two people, then we are in a dilemma. And in his analysis — again, as reported in his name, I don’t have a first-hand source of what he did — Rabbi Moshe Feinstein spoke about the asymmetry. One of the twins is basically with a defective heart and the other with a sound heart, so they are not in equal standing. Because one of them is essentially parasitic on the other, meaning she lives at the expense of the other’s heart, and in that way endangers her. And in that sense it is similar to the parachute and the mountain climber, because there the situation is clearly not symmetric. I mean, the peg is mine — I drove it in and I’m holding onto it. You want to use my peg in order to be saved. It’s a bit like two people walking in the desert and one has a canteen of water, so he should drink and the other should die. That’s why Feinstein used that example. What? The canteen of water. Maybe he used that too, I don’t know, because I remember — I’m not sure. In any event, Rabbi Moshe Feinstein’s arguments revolve around the question, first: does asymmetry by itself justify killing one in order to save the other? And why? I remind you that the prohibition against killing one person in order to save another is based on “who says your blood is redder?” Right? In a case where you kill him in order to save yourself, your blood is not redder than his. But in a case where my blood actually is redder — then maybe I am allowed to kill him in order to save myself. Now in this case there was room to deliberate whether the fact that her blood is less red is a reason that justifies killing her in order to save the other. Although I already spoke about this, that asymmetry by itself does not permit killing in any way whatsoever. We even discussed extreme examples up to money — harming another person’s property in order to save my life, which is the greatest asymmetry possible — and even there, when I brought Rashi and said there are other medieval authorities who say you can’t do that. What of course joins here is the fact that she too is going to die, and therefore this is not the same as a case where someone threatens me so that I will kill another person. There I say: if I don’t kill him, he’ll remain alive; if I do kill him, I’ll remain alive — why am I better than him? But if the other possibility is that both of us die, then if in the case where both of us die he is going to die anyway, then at least let me kill him so that I may be saved, because he is going to die anyway. Now Rabbi Moshe Feinstein says that too, but only because there is asymmetry. Meaning, if the situation were symmetric, he would not permit it. And what I brought earlier from Rabbi Halperin reflects the statements of the decisors in a case where there is symmetry. Where there is asymmetry, by the way, it is disputed. There are decisors who still forbid it and decisors who permit it. Where it is symmetric, all the decisors say it is forbidden. What do you mean by symmetric? Meaning that there is one heart and both use it. No, that’s in this case. Symmetric in the sense of the value of the lives or the chances of survival. Both. No, that isn’t the same thing. What is the “value of the lives”? What is that? For example, a healthy person as opposed to a sick person? Yes, but these are newborns, so there isn’t… but in this case it is very clear. I’m asking, the halakhic source says that where there is symmetry it is forbidden — what do you call asymmetry? How can you say that? It’s the opposite. The halakhic source says that because my life is not preferable to your life, I may not kill him. From that perhaps I can infer that if there is preference, then maybe I can kill him. But the decisors dispute that — no kind of preference matters. No preference justifies it. No preference justifies it, even if it is property versus life. It’s just that here this is a different case, because here both are going to die if I do nothing. But there is always some asymmetry. I mean, in a medical opinion, which one they want more to save, and suppose — hypothetically — there’s no difference. At least hypothetically, I don’t know, one would have to ask doctors, but there may be such cases of equality. Let’s speak on the conceptual level. I’m assuming the case is truly symmetric. So for Rabbi Moshe Feinstein it is clear that you may not kill. And in the course of this Rabbi Moshe Feinstein also rejected the possibility of seeing one of them as a pursuer. That is another option. Meaning, one option is to say — you see, these are the two poles I spoke about — one is “a person may not save himself at the cost of another’s life,” and on the other side there is the pursuer. Now the question is where we are located here. If we are on the side where there is no pursuer, then there was room to discuss: fine, but there is asymmetry — my blood is redder, my blood. And if so, perhaps here the rule does not apply that I may not kill one in order to save the other, particularly since here both are going to die. And that indeed was the conclusion of Rabbi Moshe Feinstein and of other decisors. But that is disputed; there are decisors who did not agree. But if I am on the side of the pursuer, then of course it is simpler. If one is pursuing the other, then certainly it is possible. Ah — but here the question is who is pursuing whom. Here the question is who is more like a fetus about whom “Heaven is pursuing him.” Meaning, there is not really any act of pursuit here, apparently. It is not so simple. There was room — and this too was debated — there is an article by Rabbi Bleich who wanted perhaps to raise the possibility that there is indeed a law of pursuer here, because in the end that one with the defective heart is in fact hanging on the other’s heart in order to survive. Not because she did it intentionally, but we said that even a minor who pursues is a pursuer. So there is — it is not absurd to see this situation also as a situation of pursuit. Okay? Then perhaps it is a simpler permission, because if she is a pursuer, then fine, the law of pursuer is an accepted matter. If there is no law of pursuer here, then we enter into the issue of saving oneself at the cost of another’s life, and the question is whether asymmetry is a sufficient consideration to kill the one with lower survival chances, or the one who is in terrible shape, or however you want to call it. So I’m saying: here one usually decides no, not in the ordinary case. But here because the alternative is that both of them die if I do nothing — it’s not that I’m killing one in order to save myself. If I do nothing, both of us die, he and I. So he is going to die anyway. Then at least let me survive. So in such a situation, if in addition there is asymmetry, then Rabbi Moshe says it is possible. Okay. Why is this really different from the canteen of water? “Who says…” that was not ultimately ruled as Jewish law, right? The canteen of water. Yes — in an asymmetric case, why isn’t this exactly that? Because in the canteen of water case, if I don’t give him the water, he dies on his own. In this case I perform surgery, which is an active act of killing. At least that’s what some claim. That’s exactly the question. There is the Chazon Ish. The Chazon Ish has a very typical Chazon-Ish-type consideration. The Chazon Ish writes — Choshen Mishpat, section 25, I think — about an incident in Bnei Brak: someone was driving there, a woman was driving there, and a cat ran in front of the car, and she swerved or something, and she went up — no, sorry, a person ran in front of the car, she swerved and killed someone on the sidewalk. So a discussion arose whether it is permitted to do that in order to save that one at the cost of that one’s life. After all, that is forbidden. She didn’t think about it, but now it became a Torah topic. Yes, right, exactly, this is the trolley dilemma. And he continues there — by the way he even moves on to another trolley dilemma, what happens if you save more people at the cost of one. He really discusses the trolley dilemma there. I don’t know when this dilemma was first formulated, who came first; that’s interesting. In any event, the Chazon Ish argues with a kind of very Chazon-Ish-like consideration. He says: this is not an act of killing at all; it is an act of rescue. She rescued — true, in the end someone died, but she did not perform… this is not a killing act at all; it is not the kind of action I see before my eyes when I look at it. A very characteristic Chazon Ish consideration. It is very hard to define where the line passes between an act of killing but under compulsion — clearly there was no alternative, clearly it was under compulsion, it’s not that she intended to kill — and a case where it is not a killing act at all but an act of rescue. I am engaged in rescuing this one. What can I do — I killed someone else — but that is not at all a killing act. So here too, in this context, that is exactly the dilemma. With the canteen of water I do not perform a killing act. The person who drinks my water — I don’t give him water because I have no water. He dies of thirst; he doesn’t die because of me. But when I operate and separate him from the heart of the brother or sister, there I am apparently performing an active act of killing. And therefore it is more problematic. So perhaps that is why they did not bring the canteen. Why did they not bring the canteen, but instead brought the parachutists and the mountain climbers? Because with the parachutists and mountain climbers there really is an action that throws the other person down and thereby kills him. So I’m saying that a discussion arose here whether there is a law of pursuer. If there is a law of pursuer, then one may kill. And if there is no law of pursuer, the question is whether asymmetry is a sufficient consideration to permit me to kill one and save… in order to save the other. With the parachutists, does that mean the law of pursuer regarding the one below? Right, but in the case of the fetus too it is the law of pursuer. Of the Siamese-twin baby. By the same reasoning — after all he wants… he is hanging on, that is his action, okay, but still he is using my heart.

Two questions. First: why is there moral weight to action as opposed to inaction? If what is correct is that this is what will happen, then why should that have any weight at all? And the second question is: why aren’t you talking about temporary life versus lasting life? After all, here I am shortening a life, and that is known to be a very weighty halakhic consideration in this context of… In the context of life-and-death law, no decisor distinguishes between temporary life and full life. No decisor. You are not allowed to kill someone with only temporary life in order to save someone who has long-term life. And therefore it is forbidden to separate, because they are still alive now. These two Siamese twins are going to die. Yes, but that… fine, but they are alive. When I am now shortening a life… So that is exactly the dilemma. Earlier you asked the opposite question: why don’t we deal with results? Now you told me: I don’t know, leave aside the results, let’s look at the present situation. Okay, so look — the first question you asked is exactly what I introduced and said, that today’s topic adds this to the discussion. The question is whether the value of life is the basis of the prohibition of murder, or the opposite: the value of life is a result of the prohibition of murder. That is, is it forbidden for me to perform an act of murder and because of that there is a value of life? Or no — I need to care for the value of life, and consequently it is forbidden to commit murder. Where will the difference be? Exactly in this case. And look what happens in this case. In this case, basically I say this: from the point of view of outcomes… one can cut, right? Because in terms of outcomes, if I do not perform the operation both of them die, right? If I do perform the operation one of them dies and the other, hopefully, lives — there’s a high chance he will live. So in terms of outcomes, it is obvious that the operation should be done. What deters the decisors who forbid it? The fact that I am performing an act of murder. And that sharpens this dilemma exactly: what do you mean by an act of murder? What is wrong with an act of murder? It takes life. But after all I am doing it in order to save life, not in order to kill life. I am saving life by this act, not taking it. So what is the issue? The question is whether I conceive of the act of murder as a prohibition standing on its own. It is not a result-oriented prohibition. An act of murder is a problematic thing. Or not — an act of murder is problematic because it takes life. But in this case it is obvious that the act saves life; it does not take life. And that is exactly the dilemma here. So if I now reformulate my point of departure, my intuitive point of departure was that it cannot be that we ignore considerations of outcome. Soon we’ll see that this can be sharpened even more. The consideration I brought initially, when I said that from the outset it seemed one had to operate, is basically an outcome-based consideration. It is a consideration that sees the value of life as a consequential value. You need to make sure that as few lives as possible are lost. How do you do that in this case? By separation. By the way, even if you separate and commit murder, the death of the other is not one hundred percent certain. Meaning, there is a high chance — let us assume for the sake of discussion — that he will live. Okay? The medical assessment is that most likely he will live. A person can always die. Right, right. But there is a claim in the name of the Ritva that those who forbid it, forbid it because you are shortening life. If the time of death of both of them would have been the same with or without separation, then perhaps they certainly would permit it, because in the act itself there is no prohibition. What is prohibited is not because of the result but because you advance the result. And therefore there is a connection between the two questions I asked. I want to say that perhaps one could say that because I am shortening life it is forbidden, not because I am murdering the other. If I were shortening — that too is consequential, also an outcome-based consideration — but on the consequential plane it is hard to accept that argument. On the consequential plane, you are basically sparing temporary life and losing lasting life, okay? Because they are weighed. In terms of the result, it is odd to say such a thing. In terms of the action I can understand, but in terms of result it is a bit hard for me to accept.

Now I want to move to a symmetric case. What happens if there really is a symmetric situation? The two twins — this was not the case in the two examples we discussed — but in principle, to choose. Yes. So basically in a case where they both have one heart, say, and both use it equally, it doesn’t even really matter where the heart is located, because in the end there is probably one abdominal cavity there; it doesn’t really — for the sake of discussion let’s say it is in the middle, yes? With the partition between the women’s section and the men’s section. The heart is exactly in the middle. So the question is what to do in such a case. As I said, in such a case all the decisors agree that it is forbidden to do separation surgery. Meaning, one must leave both of them to die and not do a separation surgery that saves one. What is the argument? The argument was that this is an act of murder. What do you mean, an act of murder? It is an act of rescue. I asked Halperin — the one we spoke about — and I said to him: tell me, someone is standing on the roof of a burning house, and now he is debating whether to jump down. If he jumps down, he may die and he may not. But if he remains upstairs, then he will certainly die. Are you saying that he is forbidden to jump because he is performing an act of killing? It is basically the same thing. You are basically telling me that I am forbidden to perform an action here that takes the life of someone who is going to die anyway, in order to save the life of someone else who would otherwise die too. I’ll sharpen this analogy even more later. But who? Ah — then he said to me: yes, but whom will you choose? Ah — whom? How would you choose one of them? So I said to him: I’ll draw lots. Right — what’s the problem? So he said to me: you don’t draw lots over lives. In Sefer Chasidim, and thus in many decisors, it is brought that one does not draw lots over lives. He learns it there from Jonah the prophet — we’ll see this in a moment — he learns from Jonah the prophet that one does not draw lots over lives. Fine, there I got a bit stuck. I said to him, that sounds unreasonable to me, but I need to check it. I checked it in Sefer Chasidim; in my opinion that is not what it says there. And even if it did, I don’t think I would build on that Sefer Chasidim. It contains many other puzzling things besides this. And therefore I say that one should draw lots. Is there a prohibition there in Sefer Chasidim? What? In Sefer Chasidim. I mean, I read it. I read it. I’ll bring it to you; I even photocopied it for you. No — if there is a prohibition there, then you don’t do it. That falls within the category of ruling. No — drawing lots… no, that is exactly the problem, and that is why I say this halakhic consideration seems strange to me even if it is written in Sefer Chasidim. And after checking, it isn’t written there. If it is correct, then one can’t transgress it. No, I said: if it is correct, one can’t transgress it; you are simply saying it is not correct. I agree — if it is correct, then one can’t transgress it. The water belongs jointly to both of them. The water — they have a jug of water shared by the two of them. The decisors discuss what happens with a jug of water shared by two partners. Fine, perhaps we’ll talk about that today. There was a lottery in Joshua during the conquest of the land. What? In Joshua there was a lottery. Achan? No, that was an instruction from the Holy One, blessed be He — fine, that too. But that was by divine instruction, which is something else. Anyway, in short, don’t force me to defend something I don’t believe in. It’s not that — I agree with you, yes. Is there a difference if the one asking the question is one of the two, or if it’s doctors who have to decide what to do? That’s a good question. I think not, and I’ll explain in a moment why not. Okay?

But before I continue, I want to raise another angle. I said that we are always located between two poles: between saving oneself at the cost of another’s life and the law of the pursuer. In the asymmetric case, we saw that Rabbi Moshe Feinstein spoke about this explicitly. Is there a law of pursuer here? He said there is not, but there is asymmetry that nevertheless justifies it. What happens in the symmetric case? In the symmetric case, the assumption is apparently that the law of pursuer is certainly irrelevant. Who is pursuing whom here? Rather, the only question is: okay, can we nevertheless do something because otherwise both will die? But I argued that no — one can also see both of them as mutual pursuers. Okay? One can see both of them, each one pursuing the other, because in fact your use of the heart endangers me, and my use of the heart endangers you. I say both are pursuers. But both — what difference does that make? It makes a very big difference. Why? Because if both are pursuers, then basically one is permitted to kill either of them in order to save the other. The whole problem is only how to choose. Then one can certainly draw lots. If they are not pursuers, then I need the very permission to kill in the first place. Double-oh-seven — that is, I have no permission to kill. So how can a lottery create permission to kill? If there is permission to kill from both sides, then I draw lots, because in any case killing is permitted; I only need to choose whom. So I draw lots. But if there is no permission to kill, how can the lottery generate permission to kill? Like in a duel, as people used to have in the nineteenth century — was it permissible to kill one of them? Exactly, exactly, we discussed that. What happens if two French nobles — or British, doesn’t matter — stand facing each other with pistols or bows and arrows, about to shoot each other. What am I supposed to do in such a case? Is this a situation with no pursuer at all, or is it a situation where both are pursuers and I should draw lots and kill one of them? There is a certain difference. Maybe. It needs discussion. Why? Because in a duel, usually at least, it seems that only one will die. The one who shoots first will survive. Then perhaps it makes sense not to intervene. Because in any case not both will die, only one. So why should you choose? Or let the better shot choose. Exactly — evolution too will come out ahead. The one who shoots better will survive into future generations. Although sometimes both die. Right, but usually not. Usually not. I’m saying, if indeed both would die, then that reopens the discussion. But assuming one of them will die, that isn’t the question. Yes. Now, in our case it is clear that the alternative is that both will die. Now I’m saying: if both have the law of pursuer, then it is even clearer that one can draw lots. Even if they do not have the law of pursuer, perhaps one can draw lots. But if they do have the law of pursuer, then certainly one can draw lots, because where both have the law of pursuer, there is permission to kill either one of them, and the whole problem is merely technical — each one says, “go push away the other one,” “go push away the other one,” meaning each one pushes me toward the other, so I’ll draw lots. Now there is an interesting source that deals with mutual pursuit: Rabbi Shlomo Eiger, the son of Rabbi Akiva Eiger, in his novellae to Ketubot. There he argues — as part of some move in the Gemara, which by the way I don’t agree with — but he has some move there in Ketubot from which he claims that if there is mutual pursuit, then there is no law of pursuer. It is not called the law of pursuer. If both sides are pursuing each other, then there is no law of pursuer; you basically have to leave it alone. But there too my argument was that there we are speaking, like in the duel situation, where both are pursuing each other and only one will manage to kill the other. So the alternative, if I do not intervene, will not be worse than if I do intervene. One will always be killed. The only question is who. In such a case, passive non-action is preferable: let nature do its thing; whoever gets killed gets killed. But in our case, both are going to die. So in our case, I certainly need to intervene. Beyond the fact that I also don’t agree with his reading of the Gemara. Therefore even in the symmetric case, the pursuer consideration definitely enters, even though even without a law of pursuer here, if we are talking about the consequential consideration, then I still draw lots. Because why do I need the law of pursuer at all? Why do you need to override the prohibition of murder? If there is no law of pursuer, it is forbidden. But here, if I say that there is no prohibition of murder at all because I am doing it in order to save — after all, he will die anyway — then in such a situation I do not need the law of pursuer to permit me to act. And then I draw lots even without the law of pursuer. What I am only claiming is that if there is mutual pursuit, so much the better; then it is even stronger. But my claim is true even if I accept Rabbi Shlomo Eiger and mutual pursuit is not considered pursuit. I still think one should draw lots because of the consequential consideration. For example, people lying there waiting for a heart transplant and one heart becomes available — do you draw lots among them? Yes. But why on earth? You don’t draw lots. I’m not claiming that people don’t; I’m claiming that one should. Maybe he would say not, I don’t know. Only if one is more suitable — let’s say there is no law of pursuer here. Perhaps. But he would probably claim no — that is what he claims.

I’ll perhaps bring an example from Jewish law. The Jerusalem Talmud in Terumot — we’re a bit short on time. The Jerusalem Talmud in Terumot brings a case: “It was taught: a group of people who were walking on the road, and gentiles encountered them and said, ‘Give us one of you and we will kill him, and if not, we will kill all of you’ — even if all of them are killed, they may not hand over a single life from Israel.” Okay? Let’s say we are inside some place, there is a siege, gentiles are surrounding a group of us and say: give us one of you, we need to eat a Jew. Give us one of you — okay, like the Judenräte who had to deliver a certain number of… yes — give us one of you, and if not, we kill all of you. It is forbidden to hand him over, and everyone should be killed. “If they specified one of them, like Sheva ben Bichri” — they say, we want him, not just one of you, we want him — “they should hand him over and not be killed.” Why? This is not the law of pursuer. There is no law of pursuer here, because I am saving myself at his expense; it’s not that he is pursuing me, right? This is the case of saving oneself at another’s expense. But because here there is someone marked out — and even that is still not enough, because even if someone says kill him or else I kill you — kill a particular person and I won’t kill you — it is forbidden to kill him, right? But here what happens is that if I do not kill him, then he will kill him. Someone says kill him or I myself will kill both of you. This is the parallel case. Not “I kill you if you don’t kill him”; rather, “I kill both of you.” So in any case he will die, so at least kill him so that you survive. Okay? Not entirely obvious — let’s see. So it says: they should hand him over and not be killed. That is what it says. Handing him over so others kill him is not the same thing. Wait. Rabbi Shimon ben Lakish said: only if he is liable to death like Sheva ben Bichri. Even if they singled someone out, it is forbidden to hand him over unless he is truly liable to death. Liable to death to the king, not under Jewish law, but liable under the king’s law. And Rabbi Yohanan said: even if he is not liable to death like Sheva ben Bichri. This is a dispute between Rabbi Yohanan and Reish Lakish. Ulla bar Koshev was sought by the kingdom; he fled and went to Lod to Rabbi Yehoshua ben Levi. The king’s soldiers who were pursuing him came and surrounded the city — the Jewish community there. They said: if you do not hand him over to us, we will destroy the city. We’ll kill all of you, destroy Lod. Rabbi Yehoshua ben Levi went up to him and persuaded him, and handed him over to them. So Rabbi Yehoshua ben Levi approached him, convinced him to surrender, because in any event we will all die, and he surrendered and in that way they were saved. And Elijah the Prophet would regularly reveal himself to Rabbi Yehoshua ben Levi and study with him. But he stopped appearing to him. He fasted many fasts and then Elijah revealed himself to him again. He said to him: should I reveal myself to informers? You hand people over. I do not reveal myself to informers. He’s from Bnei Brak, Elijah the Prophet. He said to him: did I not act according to a Mishnah? What do you want — that’s the law. The law is that if he is liable to death, like Sheva ben Bichri, then according to everyone he may be handed over. The dispute is only if he is not liable to death and yet they singled someone out. But when he is liable to death, everyone agrees he may be handed over. So Elijah said to him: but is that a teaching for the pious? Meaning, the pious standard says that even in such a situation one should not hand him over. And that is how Maimonides rules in Jewish law, in the Laws of the Foundations of the Torah, chapter 5, law 5: “Women to whom idolaters said, ‘Give us one of you and we will defile her, and if not we will defile all of you,’ should all be defiled rather than hand over one life of Israel. And likewise 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 rather than hand over one life of Israel.” They should all be killed rather than hand over one life of Israel. “And if they singled out one of them and said, ‘Give us So-and-so or we will kill all of you,’ if he was liable to death like Sheva ben Bichri, they should give him over.” And he rules like Reish Lakish, although usually in disputes between Rabbi Yohanan and Reish Lakish the law follows Rabbi Yohanan; here Maimonides rules like Reish Lakish. “And we do not instruct them to do so ab initio,” which is the case of Rabbi Yehoshua ben Levi — that as a matter of piety, even in such a case one should not do so. “And if he is not liable to death, they should all be killed rather than hand over one life of Israel,” which is Reish Lakish. So Maimonides rules this as Jewish law. There are, by the way, decisors who rule like Rabbi Yohanan, but here Maimonides rules like Reish Lakish. Usually, certainly in matters like these, the tendency is to rule like Maimonides.

Now what does this basically mean? If we return to our case, it is exactly the same case. We have two babies, right, both of whom are about to die, unless we hand one of them over to death — perform separation surgery, right? If we kill one of them, the other will be saved. If we do not kill him, both will die. It is not that one of them will die; both will die. This is exactly the case of the Jerusalem Talmud. Not at all. Why not? I claim — and we have a disagreement dating from the break, which we’ll talk about — that when an evildoer stands before me and presents me with an absurd alternative, I can’t enter into his logic because I don’t even know whether handing one over will save me. I simply refuse to enter into that logic at all. With your first point I completely agree, but not with the second. I agree with the first point for a different reason — and I see I won’t get to it here, I’ll get to it next time — that if there is an evildoer here, the story changes, but not for the reason you think, in my opinion. But we’ll see. You mentioned earlier strategy toward enemies. Okay, that already corresponds more; it’s less exact, right. But in principle, when I began these discussions about Siamese twins, everyone I spoke with immediately brought this Jerusalem Talmud and all the decisors who rule like it, and told me: you see, you cannot kill one in order to save the other, even though the alternative is that both die. By the way, many decisors bring this Jerusalem Talmud and they too ignore this whole issue of the evildoer, terror, threats, surrendering to terror, and everything that came up here in different contexts. I’ll get to that later. If one really ignores that aspect, then this Jerusalem Talmud seems to stand against me. This Jerusalem Talmud says that it is forbidden to do it. But at the root of the matter — why? Because if you do not hand him over, all will be killed, so they died. Right — and that is exactly the reasoning I gave for why I think one should operate on the Siamese twins. The same reasoning also exists in the Jerusalem Talmud, and that is exactly what the commentators on Maimonides ask there. Who? The Kesef Mishneh, the Lechem Mishneh, all of them, yes? The Ramach — they all ask the same question there. After all, the reason we are forbidden to kill one person in order to save another is because of “who says your blood is redder,” right? But both die anyway. If both die in any case, then the reasoning of “who says your blood is redder” does not apply. Now what is implied in the Gemara is that where that reasoning does not apply, then I can kill one in order to save the other. Only that reasoning tells me that I can’t kill him. Well, here that reasoning does not apply, because both die in any case. Or in other words, the same reasoning that I gave with regard to Siamese twins — or that you gave regarding the Jerusalem Talmud — is exactly what the commentators ask on Maimonides. Of course their complaint is not really against Maimonides but against the Jerusalem Talmud, but still that is the question. And they get into all kinds of strained answers and so on. So indeed, yes — and this is where I’ll stop, because we’ll continue next time — but it really is true that beyond the question of what emerges from this Jerusalem Talmud and this Maimonides, the question is whether it is even correct, whether that is even what is written there. Because it is difficult on its own terms, even before the question of what the Jewish law is and whether it applies to us; first of all one has to understand what they themselves are saying. How can this be? How does this stand against the Gemara’s “who says your blood is redder”? In the end it doesn’t stand. Okay, we’ll stop here.