Lesson 45: Devarim

From the book Mida Tova: Articles on the Principles of Halakhic Thinking by Rabbi Michael Avraham. Translated from Hebrew using gpt-5.4 (reasoning_effort=high, batch API).

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With God’s help.

Concepts

• A rare distinction between uncertainty and certainty in the laws of danger to life.
• An implication of the distinction between a Jew as a private individual and as a member of the collective of Israel.
• Permission to operate the police on the Sabbath even without danger to life.
• Permission to kill, and even to give one’s life, in order to save property.

Summary

In this week’s essay we deal with the judge’s duty not to yield to threats, a duty anchored in the verse, “Do not fear any man.” We show that, according to some views, this duty applies even in a situation of possible danger to life. The resulting question is a dilemma from either side: is the duty to judge one of those grave prohibitions for which one must surrender one’s life? Seemingly not. So why is there an obligation to endanger one’s life for it? And even if it were such a prohibition, why would this apply only in a case of possible danger to life and not of certain danger, as with the other grave prohibitions?

Our conclusion is that this duty derives from the fact that the person here acts as the bearer of a public role, and if he yields to violence this will undermine the very foundations of the rule of law in society. Concern over a general social breakdown is tantamount to danger to life, and therefore it requires self-sacrifice. Why only in a case of possible danger to life? Here we suggested that the reason is that one cannot obligate a public officeholder to give up his life in the face of certain danger, since even while he bears a public role he also retains the aspect of a private individual. He is not required to forfeit that aspect and subordinate it entirely to the public aspect. One conclusion, however, is that if he decides to do so, this is permitted, unlike self-sacrifice for ordinary prohibitions by private individuals, which according to most opinions is forbidden. At the end of the chapter we commented on the law of an exiled military commander, but that law is extremely puzzling, and it is therefore difficult to derive any halakhic conclusion from it.

From there we moved to several interesting implications of the picture presented here: the operation of the police on the Sabbath in circumstances that involve no danger to life; the duty to serve as a soldier in war, but not to surrender one’s life in the face of certain danger; and implications regarding war on the Sabbath, involving both life and property. We also concluded that every officeholder has a duty not to recoil from threats, even in a situation of possible danger to life, because he is entrusted with the stability of the entire social order.

At the end we brought additional examples of distinctions between the law of the individual and the law of the public in various contexts. We saw that, in halakha (Jewish law), public needs are treated like the needs of a commandment. We also pointed to another mechanism for distinguishing between the law of the individual and the law of the public: not an essential one, but a statistical one.

The Law of “Do Not Fear Any Man”

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

Introduction

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

“And I charged your judges at that time, saying: Hear the cases between your brethren, and judge righteously between a man and his brother and the stranger with him. You shall not show partiality in judgment; you shall hear the small and the great alike; you shall not fear any man, for the judgment belongs to God. And the matter that is too difficult for you, you shall bring to me, and I will hear it.”

Judges are obligated to judge, and there is an additional duty to do so justly. They may not show favoritism in judgment, and they may not be afraid of anyone when rendering a decision. In this week’s essay we will focus on the duty not to fear any man, a duty which, at least in certain circumstances, seems at first glance not to accord with the principles of halakha.

A. The Duties of Judges in Our Passage

Introduction

In their enumeration of the commandments, Maimonides and Sefer HaChinukh count two commandments in our passage: not to appoint judges who are not wise in Torah wisdom, and not to fear a wicked person. As noted, we will focus mainly on the second, but we will also mention the first, because the two are connected.

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

The first commandment is Negative Commandment 284 in Maimonides, and 414 in Sefer HaChinukh:

The 284th prohibition is that the Great Court, or the Exilarch, is warned not to appoint as a judge a person who is not wise in Torah wisdom because of other virtues he may possess, appointing him on that account. He is warned against this. In appointments governed by the Torah, one must look only to a man’s diligence in Torah wisdom, his knowledge of its commands and warnings, and his conduct and firmness in the deeds appropriate to this role. The warning against appointing an official because of other virtues is contained in the verse, “You shall not show favoritism in judgment.”

And the language of Sifrei Devarim, section 17, is: “‘You shall not show favoritism in judgment’—this refers to the one appointed to seat judges.” That is, this warning is addressed to the person who appoints judges over Israel, warning him not to appoint them for the reasons already mentioned. As they said: Lest you say, “This man is handsome; I will appoint him as a judge. This man is strong; I will appoint him as a judge. This man is my relative; I will appoint him as a judge. This man is wealthy; I will appoint him as a judge. This man knows every language; I will appoint him as a judge.” The result will be that he acquits the guilty and condemns the innocent, not because he is wicked, but because he does not know. Therefore it says: “You shall not show favoritism in judgment.”

Sefer HaChinukh adds that the scope of this commandment includes the duty to make worthy appointments for all positions of authority in Israel:

Included in this commandment as well, apparently, is that anyone chosen by the members of the community to appoint officials over them for any matter must devote all his supervision and judgment to appointing those who are fit and worthy for that office which the community requires. And he must not fear any man into appointing someone who is unfit.

“Do not fear any man”

The second commandment is Negative Commandment 276 in Maimonides, and 415 in Sefer HaChinukh:

The 276th prohibition is that the judge is warned not to fear a harmful man who threatens and speaks arrogantly, and not to withhold from him the law and the truth. Rather, he is obligated to render judgment and pay no attention to whatever harm that man may inflict upon him. As the Exalted One said: “You shall not fear any man.” And the language of Sifrei is: “‘You shall not fear any man’—lest you say, ‘I am afraid of so-and-so, lest he kill me or my son, lest he set fire to my grain stack, or lest he cut down my saplings.’ Scripture therefore says: ‘You shall not fear any man.’”

So too says Reish Lakish in Babylonian Talmud, Sanhedrin 6b:

As it is stated: “The beginning of strife is as when one lets out water; therefore stop the quarrel before it breaks out” (Proverbs 17:14). Before the quarrel has broken out, you may abandon it—and make a compromise. Once the quarrel has broken out, you may not abandon it.

Reish Lakish said: If two litigants come to court, one weak and one powerful, before you hear their arguments, or after you hear them but do not yet know to which side the law inclines, you may say to them: “I will not deal with you,” lest the powerful one be found liable and then pursue the judge. But once you have heard their arguments and know to which side the law inclines, you may not say to them, “I will not deal with you,” as it is stated: “You shall not fear any man.”

Sefer HaChinukh adds that this duty appears in two forms:

One who transgresses this, and because of fear of the litigant does not wish to judge once he knows to which side the law inclines, as we have said, violates this prohibition. And if because of that fear he also distorts the law, he violates this prohibition as well, in addition to violating the prohibition against perverting justice [commandment 233].

Thus, both one who refuses to judge because of fear, and one who distorts the judgment because of it, violate this prohibition.

It seems that this commandment, too, was stated not only about judges, but about anyone who holds public authority in Israel. The decisions of a person who holds public office are supposed to be made honestly, for the good of the public, and in accordance with the Torah, without fear of anyone. One who does not act this way, beyond being an unworthy person, violates a biblical prohibition.

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

And he must not fear any man into appointing someone who is unfit.

True, there the discussion concerns the appointing authority, not the officeholder. But it seems there is no reason to distinguish between them. For with respect to judges, we saw that the command “do not fear” is said to the appointed judge, not only to the one who appoints him.

The halakhic ruling

This is also how Maimonides rules in Mishneh Torah, Laws of Sanhedrin 22:1–2, and in Shulchan Arukh, Choshen Mishpat 12:1:

If two litigants come before you for judgment, one weak and one powerful, before you hear their words, or after you hear their words but you do not know to which side the law inclines, you may say to them, “I will not deal with you,” lest the powerful one be found liable and then pursue the judge. But once you hear their words and know to which side the law inclines, you may not say, “I will not deal with you,” as it is said: “You shall not fear any man.” A judge must not say, “This man is wicked; perhaps he will kill my son, perhaps he will burn my grain stack, perhaps he will cut down my plantings.” If he is appointed for the public, he is obligated to deal with them.

Similarly, if a student is sitting before his teacher and sees grounds to rule for the poor litigant and against the wealthy litigant, and keeps silent, he violates “You shall not fear any man.” About this it is said: “Keep far from a false matter”…

Maimonides’ words here contain a novel point: he imposes such a prohibition on every judge, and not only on judges formally appointed. Anyone fit to judge, before whom litigants come, is obligated to hear their case if he knows to which side the law inclines. With regard to judges appointed for the public, there is an additional novelty: for them, even the distinction stated above does not apply. They are obligated to judge in every case that comes before them, even before they know to which side the law inclines. So too wrote Rashba in Responsa, part 2, no. 344 (see Beit Yosef at the beginning of Choshen Mishpat 12).

The motive for withdrawal

The early authorities appear to disagree over how to understand the Talmudic passage. Rashi, there, writes:

Our text reads: “Lest the powerful one be found liable and then pursue him”—that is, he pursues the judge in order to reverse the judgment.

According to this, the concern is that the powerful litigant will force the judge to reverse the judgment and abandon justice. By contrast, from Maimonides’ wording it appears that he understands the powerful litigant as pursuing the judge in order to take revenge on him.¹

According to Rashi, then, the judge’s wish to avoid the case stems from his desire to judge justly and not to distort the law. Once he knows which way the law goes, he may no longer withdraw, and he must then stand up to the threats and not change the ruling. The Tumim, subsection 1, explains that once he has determined the law, there is no longer concern that he will move from it under pressure. According to Maimonides, however, the judge may yield to threats so long as it is still unknown to him which way the law goes. After that point he is already obligated to enter the case and judge it despite the threats.

One implication that later authorities drew from this dispute concerns a case in which two violent litigants come before the judge. If he fears for himself, then this case is no different from the previous one. But if the concern is only for distortion of justice, then when both litigants are violent each balances the other, and there is no concern for distortion. And indeed, the early and later authorities disagree as to whether this law applies only when one litigant is weak and the other powerful, or also when both are powerful.²

B. The Reason for the Law

The distinction between knowing and not knowing to which side the law inclines

We saw that the Talmud and the decisors distinguish, with respect to “do not fear,” between a situation in which the judge already knows to which side the law inclines and one in which he does not yet know. In the Talmud this distinction is also mentioned with regard to compromise, and there it is quite clear why it matters. Once one already knows to which side the law inclines, compromise becomes a distortion of the law and an unlawful extraction of money from its rightful owner. Only before the law is known is there, according to one opinion, room to prefer peace over truth through compromise.

But regarding “do not fear,” the reason for this distinction is not clear. Why does one who recoils from judging before he knows to which side the law inclines not violate “do not fear”? What rationale underlies this?

Later authorities explain it as a formal rule derived from the verse: once the judge knows to which side the law inclines, he is at the stage of final judgment, and when the Torah speaks of judgment it generally means the final judgment. Some explain it from the word “fear” as though it derived from the root “to gather in”—an opinion found in the Talmud itself—meaning that the judge may not keep his word inside himself, that is, refrain from revealing it. Before final judgment, however, there is no “keeping his word inside,” because he still has no definite view of his own. This is how the author of Torat Chayim explains the passage.³ But as for the underlying logic of the distinction, its reason remains unclear.

Some later authorities explained that before the judge knows to which side the law inclines, no commandment to judge yet rests upon him, and therefore he may still withdraw. This assumption requires much clarification, but this is not the place. Perhaps one could also say that before he knows to which side the law inclines, his withdrawal does not appear to stem from fear, and can be attributed to other reasons. But once he has already entered the case and seen to which side the law inclines, if he withdraws it is evident that he did so out of fear, and that is forbidden by the prohibition of “do not fear.” It seems that this is the root of the explanation given by Torat Chayim.

A judge appointed for the public

We saw that a judge appointed for the public is obligated to hear the case even before he knows to which side the law inclines. Why is there such an obligation? Radbaz explains, on that passage, that such a judge need not fear, because the public will assist him and rescue him, that is, protect him from the violent litigant. But what if the violence is such that the public cannot assist him? From Radbaz’s words it seems that in such a case he would be exempt from hearing the case.

Yet Radbaz’s words are difficult. First, according to his explanation, in the case of a judge who is not appointed, even if he knows to which side the law inclines he should still not be obligated to hear the case, since the public will not protect him. More generally, his explanation accounts for the obligation itself to hear the case, but not for the distinction between before and after the judge knows to which side the law inclines.

Perhaps, then, the explanation follows from what we saw in the previous section: either that, in the case of an appointed judge, refusal to hear the case already looks from the outset like flight and surrender; or that he bears an obligation to judge even before he knows to which side the law inclines.

And indeed, Rashba in the responsum cited above explains similarly. He was asked there about a litigant who refused to appear for judgment in the place where, according to halakha, he was required to appear, and who threatened to use the power of the local ruler:

Monteson. You asked: Reuven lent one hundred zuz to Shimon, and both live in Monteson. Now Shimon has gone to live elsewhere, in the land of the rulers. Reuven came before the community of Monteson and before their court, and complained before them about Shimon; and Shimon has assets in Monteson. They sent word to Shimon to appear before them for judgment with Reuven. He refused, and said that he would not appear before them, but that Reuven should come to the land of the ruler where he now lives, and there litigate with him. Moreover, he threatened them with the power of his lord, the ruler, if they did anything against him in this matter. You asked: What should the court in Monteson do? And should they refrain from acting because of fear of the ruler, or not?

Rashba responds:

Response: According to the strict law, as long as Shimon has property in Monteson, the court must hear Reuven’s claim, and they send for Shimon to come litigate before them… And if the concern is that they may incur loss because of the ruler, that does not exempt the court from hearing the plaintiff. For if he frightened them into acting unjustly with them, perhaps he has no power and merely frightens them with empty words. Moreover, if so, everyone would do this, for there is no person who cannot do some harm. If so, the powerful would never be judged. And the Torah said: “You shall not fear any man, for the judgment belongs to God.”

The court may not refrain from judgment because of the threat, for two reasons:

1. Perhaps the threat is not real. At first glance, this reasoning relies on the idea that the threat is uncertain while the transgression—refusing to judge him and yielding to him—is certain, and uncertainty does not displace certainty.
2. If they yield to him, then violent people will never be subject to law, and we will in effect abolish justice from Israel. It is about this that the Torah said, “You shall not fear any man.” See also Bayit Chadash, Choshen Mishpat 12, s.v. “katav Mahariv,” who writes similarly.

It is worth emphasizing that the first reason looks like a reason rooted in common sense: if someone threatens me with an uncertain threat in order to force me not to perform my role, uncertainty does not displace certainty. That is so even without the verse “You shall not fear any man.” The second reason says that even if the threat is certain, one still has no right to yield to it—and that is specifically because of the verse “do not fear.”

Where does Radbaz stand?

Radbaz’s explanation seems, on its face, even more moderate. According to him, the obligation to hear the case is based on the fact that there is no real danger, because the public will protect the judge. This implies that even if there is only possible danger, he may yield to violence.

To be sure, Radbaz said this only in a situation where the judge still does not know to which side the law inclines. But once he already knows that, he has no permission to refrain even without the public’s protection, that is, even if he is not an appointed judge. So Radbaz also contains the opposite statement—but only once the judge knows to which side the law inclines.

From Rashba’s words it is quite clear that he is speaking in a case where the judge still does not know to which side the law inclines, for this is not mentioned at all in the question, and Rashba in his answer does not invoke it. It is therefore clear that with respect to an appointed judge, Rashba agrees with Maimonides that there is no distinction between a case where the judge knows to which side the law inclines and a case where he does not yet know. This is also how Beit Yosef understood him, at the beginning of Choshen Mishpat 12.

How far does this go?

From Maimonides’ language it appears that the judge is obligated to hear the case even in a case of actual mortal danger. He says, “perhaps he will kill my son,” and “the powerful one will pursue the judge,” expressions that imply danger to life. And indeed, Bayit Chadash, Choshen Mishpat 12, understood Maimonides this way. He also explains that the fact that Rashi disagrees with Maimonides and places the case in a situation where there is no threat to the judge stems from a view according to which, in a place of real danger, there is no prohibition against withdrawing from the case. This implies that according to Maimonides, even in such danger there is a prohibition. But in the end Bayit Chadash concludes that this applies only in a case of possible danger, since nothing stands in the way of certain danger to life. In the Tumim, subsection 2, it appears that even in certain danger there is no permission to withdraw from the case once the judge knows to which side the law inclines, and certainly not if he is an appointed judge.

The source of this is Sifrei Devarim, section 17:

“You shall not fear any man”—lest you say, “I am afraid of so-and-so, lest he kill my son, or set fire to my grain stack, or cut down my saplings.” Scripture therefore says: “You shall not fear any man, for the judgment belongs to God.” And thus Jehoshaphat said: “See what you are doing, for you judge not for man but for the Lord” (2 Chronicles 19:6).

Sifrei derives this principle from the wording of the verse, which explains the duty to judge by the claim that “the judgment belongs to God,” that is, that there is an obligation toward the Holy One, blessed be He, to judge. What does this explanation mean?

It seems that Sifrei’s explanation mainly clarifies the duty to judge in a case of danger to property, even certain danger. The judge’s duty to judge exists only because of the need, and the commandment, to save the rightful litigant’s property. But set against that is danger to the judge’s own property, and so he could argue: why should I forfeit my own property in order to save someone else’s property? Here the Torah comes and says that the duty to judge is not rooted in saving another person’s money; rather, it is a duty toward Heaven. Therefore such a claim is irrelevant. In order to avoid violating a prohibition, one is obligated to spend all one’s money.

And indeed, this is what we find in Yeshuot David, part 4, no. 23: so long as the judge has not yet entered the case, the prohibition of “do not fear” does not yet rest upon him, and he may withdraw because his own property takes precedence over saving another person’s property. But once he already knows to which side the law inclines, the prohibition takes effect, and now it is a prohibition directed toward Heaven, so he can no longer withdraw from the case even if he will lose his money. Similarly wrote Shevut Ya’akov, part 1, no. 143.

All this, however, concerns danger to property. When there is actual danger to the judge’s life, and not merely to his property, this explanation is unclear. Is “do not fear” one of the commandments of which it is said that one must die rather than transgress? Why must the judge sacrifice his life in order to save another person’s money, or in order not to violate the prohibition of “do not fear”?

Indeed, in Hagahot Barukh Ta’am on the Tumim it is noted that this is why Sifrei and Maimonides were precise in writing “lest he kill my son,” to indicate that the judge is allowing fear into his own heart and thereby comes to withdraw from the case. In such a situation the prohibition of “do not fear” applies. But if there is truly a reasonable concern for danger to life, he is under no obligation to judge the case.

However, Shevut Ya’akov, part 1, no. 143, wrote more sharply, and from his words it appears that there is no permission to withdraw from the case in any situation unless there is clear mortal danger—that is, unless that litigant is known to kill over such matters, which ordinarily Jews are not suspected of doing. Only then do we say that nothing stands in the face of danger to life. But in a case of possible danger, he has no permission to withdraw from the case.

Explanation

How can one understand the opinions that require the judge to judge even in a case of possible danger to life? Is the other party’s money preferable to the judge’s life? And if for some reason the answer were yes, then why not obligate him to judge even in a case of certain danger to life? Sifrei’s explanation, which grounds the matter in the existence of a prohibition, also does not solve the difficulty, for all the prohibitions in the Torah, apart from the three most severe ones, are overridden by possible danger to life.

One might have thought that we are dealing here with a public transgression, and therefore the judge is commanded to surrender his life in order to prevent a desecration of God’s name, since in public every transgression is treated as one for which one must die rather than transgress. This indeed emerges at the beginning of the responsum of Shevut Ya’akov just cited. But he rejects it, because the case does not necessarily involve a public setting.

His rejection, however, should itself be rejected, for every judicial proceeding is public in nature, since the appointed court is a public institution, and the public must be governed according to the Torah. But as a matter of law this explanation does not fit the facts, because we do not obligate the judge to judge where the danger to life is certain, but only where it is possible. It is therefore clear that publicity is not the reason.

The only way to understand this puzzling law lies in the explanations of Rashba and Bayit Chadash. If the judge does not judge in such a case, that creates a grave breach, because every violent person will evade the law, and society will be run in anarchy and fall prey to the violent. Because of this concern, the judge in such situations does not act under the ordinary rules of halakha that relate to the individual, but as one who bears a public role. A private individual is not obligated, and apparently is even forbidden, to endanger his life in order to save another person, even for a biblical prohibition, however severe. Here, by contrast, even though no one else’s life is actually in danger, self-sacrifice is nevertheless demanded of him. A breakdown in public order is treated like danger to life.

The difference between possible and certain danger to life

Still, the identification of public breakdown with danger to life is not complete, for in a case of certain danger to life there is no prohibition of “do not fear,” and the judge may withdraw from the case. If social breakdown were fully equivalent to actual danger to life, we would have to obligate him to surrender his life even in a case of certain danger.

To understand the difference between actual danger to life and public breakdown, we must return to a distinction we have made several times in the past. In our essays on the portions Ki Tisa and Beha’alotekha, in 2007, we argued that every Jew “wears two hats”: the hat of a private individual who stands before the Holy One, blessed be He, and the hat of a limb within the larger organism—the collective of Israel—which stands as a whole before the Holy One, blessed be He, with him within it.⁴ A judge who bears a public role must surrender himself even when no one else’s life is in danger, merely to prevent public breakdown. Yet we do not obligate him to enter certain danger, because after all he is also a private individual, and as such the Torah does not require him to surrender his life for the repair of the collective.

Thus, the obligation to enter possible danger does not stem from the fact that, if it is not done, someone’s life will be endangered. It stems from the fact that the gravity of public breakdown in matters of property is like the gravity of danger to life for an individual. Such a perspective has several far-reaching implications, and we will now try to note a few of them.

Note: an exiled commander

The picture we have described until now presents public need, even where it does not involve danger to life, as a force that justifies violating prohibitions. Yet there is a source that appears flatly to contradict this approach, and we will deal with it here.

As is well known, one who kills unintentionally must go into exile in a city of refuge, and so long as he is not in the city of refuge, the avenger of blood may kill him, and is not punished for doing so.

Now the Mishnah in Babylonian Talmud, Makkot 11b brings the following law concerning one exiled to a city of refuge:

He does not leave there—not for testimony in a matter of commandment, nor for monetary testimony, nor for capital testimony, and not even if Israel needs him, even if he is the commander of Israel’s army like Joab son of Zeruiah. He never leaves there, as it is said: “To which he fled, there shall be his dwelling; there shall be his death; there shall be his burial.”

The Mishnah rules that the exile may not leave the city of refuge for any need whatsoever. Even if all Israel needs him as a military commander to save them, he may not leave the city of refuge.

So too Maimonides rules in Mishneh Torah, Laws of Murderer 7:8:

One who has gone into exile never leaves his city of refuge, even for a matter of commandment or for testimony, whether monetary testimony or capital testimony, even to save a life by his testimony, or to rescue from an invading troop, from the river, from a fire, or from a collapse, and even if all Israel needs his salvation like Joab son of Zeruiah, he never leaves there until the death of the High Priest. And if he leaves, he has exposed himself to death, as we explained.

This is very difficult. If the problem were the exiled commander’s duty of exile, that duty would be overridden by danger to life, certainly by danger to life for the ציבור as a whole. Therefore later authorities wrote, and this is also implied by Maimonides’ wording, that the problem is not the duty of exile as a punishment imposed on him, but the fact that the exiled commander places himself in possible danger to life, since the avenger of blood may kill him, and a person is not obligated to place himself in possible danger in order to save another. Indeed, several later authorities—see, for example, Or Sameach there—cite this as proof against Hagahot Maimoniyot, at the beginning of Laws of Murderer, in the name of the Jerusalem Talmud, which rules that a person may place himself in possible danger to life in order to save his fellow from certain danger. This rule was not accepted in halakha, and at first glance this seems to be a clear proof against it.

Thus, on the ordinary halakhic plane this law may seem reasonable. But the problem here is that the danger in question is not danger to another private individual, but danger to the entire collective of Israel. How can it be that a person is forbidden to place himself in possible danger when the lives of all Israel hang in the balance? On the face of it, this would imply that a soldier may not go out to war, since he thereby endangers his life. More than that: his own life is also endangered by the war, together with the rest of the ציבור, so why does that danger not override the danger posed to him by the avenger of blood?

It is worth citing here the words of Arukh HaShulchan, who addresses that Jerusalem Talmud and writes as follows (Choshen Mishpat 426:4):

The decisors cite in the name of the Jerusalem Talmud that a person is obligated to place himself in possible danger in order to save his fellow. The early authorities omitted this, because from our Talmud it is clear that he is not obligated to place himself in danger. Nevertheless, everything depends on the circumstances, and one must weigh the matter carefully and not protect oneself excessively. Concerning this it is said, “There shall I show him the salvation of God”—that is, one who orders his paths. And whoever sustains one life of Israel is as if he sustained an entire world. See also Yoreh De’ah 252.

That is, even in the law of the individual one must weigh risk against chance of success and against the alternative danger facing the other person. Certainly this is true when the matter concerns the public.

Or Sameach himself notes that one might have thought that the Sages or the king could enact a rule forbidding the avenger of blood to kill the exiled commander, in order to enable him to go out to war. Or Sameach argues that such a rule would be impossible, because the Torah has assessed the avenger of blood’s mind and determined that he would not abide by it, and would nevertheless kill the exiled commander. But, with due respect, this is extremely puzzling. That avenger of blood is himself in danger just like all the rest of Israel, and certainly in a situation where he endangers the whole of Israel it would even be permissible to kill him—or certainly to imprison him preventively—so that he not endanger us all. He is plainly a pursuer. Especially since, as we noted, the commander himself is also in that same danger.

It is a great wonder that the later authorities ignore this public aspect; the commentaries there say nothing about this law. Were it not presumptuous, one might suggest that the circumstances in which they lived—in a Jewish community in exile—prevented them from seeing this important aspect. Some later authorities did note the difficulty, though not necessarily because of the public dimension, and therefore interpreted this law differently.

For example, Arukh HaShulchan, Choshen Mishpat 425:57, writes regarding Maimonides’ ruling just cited:

Although nothing stands before saving life, one may say that since if he leaves his blood becomes permitted, one cannot tell him to permit his own blood for the sake of others. Moreover, since the killing of a life came about through him, it is unlikely that merit should come about through him.

After bringing the earlier explanation, he adds that perhaps the prohibition against leaving exists because his departure would not in fact produce the hoped-for benefit. Some wrote that the duty of exile overrides danger to life by a scriptural decree, and perhaps they meant something similar.

At the end of that same discussion he adds:

It remains doubtful whether, if he wishes to leave for a life-saving commandment, we restrain him or not. From reason alone it would seem that we do not restrain him, and what we learned in Makkot 11b—that he does not leave there—means only that we do not compel him to leave. So too seems somewhat from the Jerusalem Talmud there, but the practical law requires further study.

It is clear that he was not satisfied with the earlier explanation, and therefore he suggests that the possibility of remaining in the city is only the commander’s right, not his duty. Therefore, if he wishes to go out and fight, we do not protest, though he does have the right to refuse, since he is not obligated to endanger his life for others.⁵ Perhaps one might say even more than this: that there is no prohibition to leave at all, and that the Mishnah means only to say that even if he leaves to save Israel or for a commandment, this does not nullify the avenger of blood’s right to strike him. That is, the point is not that any prohibition rests on him, but only that the danger still stands, and if the avenger of blood harms him he will not be punished. This too is puzzling, since in such a case, as noted, the avenger of blood is a full-fledged pursuer.

Whatever the explanation of this puzzling law may be, it is clear that it is an exceptional case and does not reflect an essential conception. Its difficulties remain—for example, that on this view a soldier would be forbidden to go out to war and endanger his life—unless we accept the words of Arukh HaShulchan that the Torah is telling us that one who killed unintentionally cannot save Israel, and therefore his departure would be of no benefit. In any event, the picture we have presented so far seems to remain intact.

C. Implications

The police on the Sabbath

Usually, when we discuss whether it is permissible to operate a public service on the Sabbath, we ask whether failure to operate it involves danger to life for any of the citizens in society. It is well known that, with respect to society, the treatment of dangers is much more lenient. The main reason is that a slight risk to a single individual translates into a real risk for an entire society. For example, the Talmud says that one extinguishes a metal ember in the public domain on the Sabbath. According to the Geonim, even a biblically prohibited extinguishing is permitted here. It is clear that this is not a case of palpable danger to life, because if it were there would be no room for dispute, and there would be no novelty at all. The novelty is that a slight risk, one that would not permit Sabbath desecration for a single individual, does permit it with respect to the public when the ember is in the public domain.

The explanation for this seems simple:⁶ if the risk is 0.1 percent, then with respect to a single individual—say, an ember in a private courtyard—there is no basis to permit such extinguishing. But in the public domain thousands of people pass by, and so such a probability becomes almost certainty that one of them will be harmed. Therefore, on statistical grounds, one may permit Sabbath desecration for the public even at low levels of risk.

But here we are speaking about a completely different principle. In our case there is no danger to life at all, and yet we obligate the judge to endanger his own life. If so, why should we not also permit Sabbath desecration for the same reason? If such a situation is indeed equivalent to possible danger to life, then it should also permit Sabbath desecration.

The conclusion that follows from our discussion is that operating the police on the Sabbath is permitted even in a situation where there is no danger to life whatsoever. For example, suppose it is known that there are no murderers and no mortal dangers, but only concern over thefts. Is it permitted to desecrate the Sabbath in such a situation? The answer is that if the concern is that the whole society will have to fear thieves on the Sabbath, with no one preventing or hindering them, that justifies Sabbath desecration. Thus, the permission to operate the police on the Sabbath exists even for the prevention of property theft alone. This is a major novelty, but in my view it follows clearly from the positions of the early authorities in the passage with which we are dealing here.

We can now ask ourselves about other public services and institutions. Should they too operate on the Sabbath even without the necessity of danger to life? The answer is not clear. For example,⁶ is it conceivable that a state’s foreign service would not operate on Sabbaths in the modern world? Note well: our meaning is not problems of danger to life that may be involved in this, but the impairment of the public functioning of society and the state as such.

A possible conclusion regarding soldiers in battle, and in general

Another area in which we see the distinction between the individual and the public is war. As a matter of halakha, a person may not surrender his life in order to save his fellow from danger, though see the Jerusalem Talmud cited by Hagahot Maimoniyot at the beginning of Laws of Murderer, but that view is not accepted in practice. Yet in war this is exactly what every soldier does. He endangers his life to save the citizens, and sometimes also to save his fellow soldiers. What permits this? Most likely, the permission is based on the fact that this is an act of public significance, and the soldier acts not as a private individual but as an organ of society and of the fighting army. Therefore he is required to endanger his life for goals that, as a private individual, he would have been forbidden to pursue in this way.

Of course, the comparison is not complete, since in war danger to life threatens society and certainly the soldiers, and so the permission appears grounded in the laws of danger to life. But that is not precise, because one may ask whether a soldier may surrender his life to save the lives of his fellow soldiers irrespective of victory in the war. For example, in the Second Lebanon War, Major Roi Klein fell on a grenade and gave his life in order to save several of his comrades in the unit. Such a case is not self-sacrifice for victory in war, but a private event. Is such an act permitted from the standpoint of halakha? This is not a simple question, but there is room to permit it from the perspective that, as a soldier, he is not wearing the private hat but the public one. The considerations are therefore not Reuven’s life versus Shimon’s life, but the sacrifice of one limb for the sake of saving other limbs.

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

It seems that there is broad agreement that this cannot be imposed as an obligation. Although, as we have seen, such an act is permitted within a military framework—unlike in a civilian framework—it cannot be made obligatory. Not an act like that of Roi Klein of blessed memory, and not a similar act for the sake of victory in battle. One cannot obligate a soldier to surrender his life in certain death for the sake of victory; at most one can obligate him to place himself in possible danger. Participation in war itself is an entry into possible danger, something forbidden in the ordinary life of a private individual.

This expresses the other side of the coin we encountered above. Although the soldier in uniform wears the public hat, he simultaneously retains an aspect of a lone individual. As such, he is indeed required to enter possible danger, but he cannot be obligated to enter certain danger.

The same is true of the appointed judge. According to some opinions he must enter a situation of possible danger, but we saw that he cannot be required to enter certain danger. We can now ask whether he is permitted to do so. In light of the analogy to war, the answer may well be yes. It is permitted, even if it cannot be made obligatory. A person may choose to waive his private hat for the sake of functioning as a limb in the larger organism, but that decision is his alone. He is not obligated to do so, but he is permitted to do so.

War on the Sabbath

The permission to wage war on the Sabbath, learned from the verse “until it is taken” (see Babylonian Talmud, Shabbat 19a, and parallels), also seems to belong to this same line of thought. Clearly this is not a matter of ordinary danger to life, because for that no source is needed to permit Sabbath desecration. Necessarily, it speaks of a case which under the law of the individual would not permit Sabbath desecration—for example, a discretionary war, or a situation in which the war could be postponed, and the like. According to what we have said, the basis of the permission may be that in the law of the public one may desecrate the Sabbath even in such circumstances, because of the concern for anarchy if victory in war is not achieved, and if it becomes clear that we do not fight on the Sabbath.

However, one may object to everything we have said from what is brought in the Talmud, Babylonian Talmud, Eruvin 45a, and ruled in Shulchan Arukh, Orach Chayim 329:6–7:⁸

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

Thus, the law is that one does not go out to war on the Sabbath over property, such as straw and hay, but only in a situation of danger to life. Even in border towns, where going out is permitted even over straw and hay, the reason is only because there is concern for future danger to life—lest they seize the place and the land become easy for them to conquer.

This seems to contradict what we have been saying, for according to our approach, even public concern over property without danger to life should permit Sabbath desecration. Indeed, this too requires explanation on grounds of reason, for according to such a policy all the gentiles around us would know that on the Sabbath they can come and take all our property, while declaring that they have come only over monetary matters and pose no threat to life. In such a situation, life would become impossible for everyone. For a similar reason, judges were obligated to endanger themselves in order to judge the case of a violent person.

Now we find in Hagahot Asheri on Eruvin, chapter 4, no. 6, that nowadays, since we dwell among the gentiles, we go out against them with weapons and desecrate the Sabbath, because our situation is no less severe than that of a border town. And so Shulchan Arukh rules there in the next paragraph:

There is an opinion that nowadays, even if they come for monetary matters, we desecrate the Sabbath, because if Israel will not allow them to plunder and loot his property, they will kill him, and so it becomes a matter of life and death. Nevertheless, everything depends on the circumstances.

These words are puzzling. Why does the fact that we live among the nations make the situation like that of a border town? Does danger to property somehow become danger to life? Put differently, as Magen Avraham asks there: why not simply give them the money and avoid the need for Sabbath desecration? His answer is very strained.⁷

It therefore seems better to explain that his intention is different. He is motivated by precisely the problem we raised above. Since we dwell among the nations, if we adopt a consistent halakhic policy that forbids self-defense on the Sabbath, the gentiles will come and take all our property on Sabbaths, and we will have made normal life impossible for the descendants of Abraham.⁸ That is why Hagahot Asheri compares the case to a border town. And there too, the basis of the permission is not future danger to life, as the decisors explain, but the fact that the town lies near gentiles, and if we do not deal with them firmly they will exploit this and take all the property on Sabbaths as a regular policy. Therefore, in a border town, they permitted Sabbath desecration even for straw and hay. The reason they did not permit this within the interior of the land is only that there is no concern that it will become a permanent situation in which Jewish property is ownerless. But if such a concern were to arise in the interior as well, then indeed we should permit going out even over straw and hay there too.

According to our approach, the formal rationale of concern for future danger to life, which is brought as the basis for the permission in border towns, is only a halakhic fiction whose purpose is to rely on a formal mechanism of permission. But the basic motivation is the need to protect property so that it not become ownerless, and so that there not be anarchy. This is precisely the permission we suggested above regarding the operation of the police on the Sabbath. Perhaps Hagahot Asheri needed this fiction only because he was dealing with a community and not with an autonomous society. An autonomous society, such as a state, may operate various services on the Sabbath even without such fictions.

There is room to show⁹ that the permission to kill a burglar who tunnels into a house is based on the same mechanism: the foundation of the permission is the need to protect property against a phenomenon that may lead to social anarchy—if it were forbidden to kill thieves, they would exploit that and steal everything by force—and the legal mechanism of permission relies on a rather convoluted consideration of future danger to life. Here too, the reasons of future danger to life are a fiction, needed only because the permission is stated with regard to each private individual whose home a thief enters. But with respect to the state’s permission to operate police on the Sabbath, there is no need even for the fiction of future danger to life; it is enough that there be concern for anarchy.

An explicit example of such a permission is found in Shulchan Arukh, Choshen Mishpat 388:10, and in Maimonides, Laws of Injury 8:10, which permit killing someone who informs on another person’s property, after warning him. Here too the permission is to kill in order to protect property. It may be that the permission was said to the authorities of the community or society, and not to a private individual, who would require the fiction of future danger to life in order to receive such permission. But this is not the place for that discussion.

The common denominator of all these cases is the permission to kill for the sake of saving property, where the case involves a social phenomenon whose absence of permission may lead to general anarchy. Where there is only a local risk to property, it is certainly forbidden to kill—and certainly also forbidden to be killed. If this analysis is correct, then the law of war on the Sabbath does not in fact contradict the line of thought we have proposed here.

Additional conclusions

There are several additional conclusions, in ever-widening circles of the analogy we have made here. But we will conclude with one basic point: a police officer or soldier, like any public servant, has no permission not to perform his role because of fear of danger. This applies even where the aim of the activity is not connected to saving lives. It is common knowledge that there are entire areas into which police officers are afraid to enter in order to perform their duty, whether in criminal contexts or in nationalist ones. The conclusion from our discussion is that this is forbidden, and that they are obligated to carry out their duty in full even in a situation of possible danger. In a case of certain danger there is, to be sure, no such obligation; but if someone nevertheless chooses to do so, it is permitted and of course worthy of great admiration.

Public Needs as the Needs of a Commandment

Several later authorities wrote that giving money for public needs, even when the purpose is something discretionary, is considered like giving for the needs of a commandment. Therefore such giving has the status of charity. This has several implications: for example, one may do so from tithe funds. There are opinions that paying taxes to the state, at least in part, counts as charity.

For example, the author of Shulchan Arukh, Orach Chayim 153:5, discusses what should be done with funds collected for a specific purpose when a surplus remains after the project is completed. Shulchan Arukh rules that in such a case one may redirect the use of the money to any purpose the public desires. Magen Avraham, there, subsection 6, explains this ruling on the ground that from the outset the townspeople intended that the money could be redirected to any purpose. By contrast, Taz, there, subsection 2, notes that here Shulchan Arukh uses the language “one may change,” unlike the phrase “they may spend” which appears there in paragraph 7. Paragraph 7 deals with the consent of the donors, and therefore there the money may be spent even for discretionary purposes, because the donors’ intent is what governs. In our case, however, the wording implies that it must be spent on a matter of commandment, and “changing” means changing from a graver commandment to a lighter one. Therefore he explains that the money may indeed be redirected to any need the public desires, but not because the public originally agreed to that; rather, because all public needs are considered matters of commandment.¹⁰

At the end of that discussion he proves this from the passage in Babylonian Talmud, Megillah 27a, and from the law that one supervises public needs on the Sabbath.¹¹ There are, however, many more sources for the proposition that public needs are like the needs of a commandment. See Babylonian Talmud, Moed Katan 6a, and Shulchan Arukh, Orach Chayim 544:1, and also there at the beginning of 545, together with Bi’ur Halakha there, s.v. “public needs,” and Pri Megadim cited there, to the effect that public needs may be carried out on the intermediate days of a festival. See also Shulchan Arukh, Orach Chayim 70:4, regarding one who is engaged in public needs and does not interrupt for the recitation of the Shema; and Yoreh De’ah 228:21, that public needs are treated like a matter of commandment for the purpose of annulling a vow made with public consent; and Magen Avraham 218:22, and many more.

Why are discretionary needs of the many considered needs of a commandment? Here too, apparently, we see a consideration similar to the one raised above: what is discretionary for the many is like a commandment for the individual. A breakdown affecting the many is like danger to life for the individual. In other words, social problems are elevated in status relative to the very same problems when they affect individuals.

We have therefore encountered two different aspects of the comparison between the law of the individual and the law of the public. We saw a statistical difference between the situations, by virtue of which one may be more lenient in matters of the public. This is not an essential difference, but one of quantity and probability. By contrast, we saw that a breakdown affecting the many is like danger to life for the individual. That is already an essential difference between the individual and the public, whose needs are considered weightier because of the very value of the public, even though objectively in both cases the problem concerns property. Now we see something similar: discretionary needs of the many are considered like the needs of a commandment for the individual. This too reflects an essential difference in the way halakha treats the individual and the public.

Footnotes