Another Look at the Individual's Duty in Public Office

With God’s help

Machanich 3 – 2008

In the law 'You shall not live before anyone'

introduction

This article discusses the duty of the judge not to yield to threats, which is anchored in the verse "You shall not be afraid of anyone." We show that according to certain opinions, this duty is imposed on him even in a situation of doubt, contrary to the usual rules of halakhic law.

We attribute this to the fact that the judge is acting here as a public official, and if there is a surrender to violence, it will undermine all the elements of the rule of law in society. Fear of general social decay, even if there is no direct danger to life, is halachically equivalent to a situation of "Pikon", and therefore requires self-sacrifice.

From this, it is possible to offer readers some far-reaching halachic conclusions, both regarding the operation of the police on Shabbat in circumstances where there is no fear of a fiqon, and regarding the obligation to participate as a soldier in war, but not to give one's life in a situation of certain danger. Of course, these are not halachic rulings, but merely a suggestion for consideration.

The main conclusion that emerges from our discussion is that there is an obligation on every public office holder not to shy away from threats, even in a situation of doubt, since he is entrusted with undermining the entire social order. We show that these things are anchored in the halakhic perception of the public as an entity different from the individual person.

A. Duties of the judges

Introduction: "You shall not live before anyone"

In our parsha, Moses begins his farewell speech to the people, on the edge of the Land of Israel. In his words, he mentions the appointment of the chiefs of thousands, hundreds, and tens, and immediately afterwards he refers to the duty of the judges and says the following (Deuteronomy 1:16-17):

And I will command your judges at that time, saying, Hearken between your brethren, and judge righteously between a man and his brother and his stranger: Ye shall not respect persons in judgment, whether small or great: ye shall hear; ye shall not turn away from the face of any man: for the judgment is God's: and the cause that is too hard for you, ye shall bring unto me, and I will hear it.

Judges have an obligation to judge, and an additional obligation to do so justly. They are certainly not allowed to show favoritism in court, and they are not allowed to fear anyone when they are deciding a case. In our article this week, we will focus on the obligation not to fear anyone, which, at least in certain circumstances, seems to be inconsistent with the principles of halakhic law.

These verses contain two different commandments: not to appoint a judge who is not honest, and that the judge should not fear anyone when passing judgment. We will focus on the second commandment, but as important background, we will also briefly examine the first.

Prohibition of appointing a judge who is not knowledgeable in Torah wisdom

The first mitzvah is the mitzvah of the Rambam (Tid Behinuch):

And the mitzvah of the Rada is that the great court or the head of the exiles warned not to appoint a judge who is not wise in the wisdom of the Torah because of other virtues that he may have and appoint him for them. Here he is warned about this. But he should not look at the Torah's appointments except for the person's diligence in the wisdom of the Torah and his knowledge of its errors and warnings and his conduct and adherence to the actions appropriate to this. And the warning against appointing an appointee for other virtues is what was said (Deuteronomy 1:1): You shall not show partiality in judgment.

And the language of the Book is that you shall not recognize a person in this trial who is appointed to appoint judges. I mean to say that this warning is indeed for a person who appoints judges over Israel who was warned not to appoint them because of what we mentioned earlier. And they said, "Lest you say, 'A man so-and-so is handsome, let us seat him as judge, a man so-and-so is strong, let us seat him as judge, a man so-and-so is a relative, let us seat him as judge, a man so-and-so is wealthy, let us seat him as judge, a man so-and-so knows everything, let us seat him as judge, he is found to acquit the debtor and to blame the rightful, not because he is wicked, but because he does not know. For this reason it is said, 'You shall not recognize a person in the trial:'

The Education (ibid.) also adds within the scope of this mitzvah the obligation to appoint decent appointments for all positions of power in Israel:

And the generality of this commandment is also according to the same principle, that whoever the members of the congregation have chosen to appoint over them as appointees for any matter, he should use all his care and all his mind to appoint from among them the most worthy and the best for that appointment that the congregation needs. And he should not hesitate to appoint someone who is not worthy.

This expansion of the commandment, which was originally addressed to judges, will be repeated and discussed here later in our discussion.

'You shall not live before anyone'

The second commandment is the commandment of the Law of Reu (Tetu in Education):

And the mitzvah of the Holy One is that the judge warned not to fear a harmful person who speaks harshly and does not cut off justice and truth from him. But he is obligated to cut off justice and does not pay attention to what may happen to him from the harm caused by that person. The Almighty said (Deuteronomy 1): You shall not be jealous of anyone. And the language of my book is: You shall not be jealous of anyone, lest you say: I fear such and such a person, lest he kill me or my children, lest he set fire to my crops or lest he cut down my plantings. The Talmud says: You shall not be jealous of anyone:

The source of this is in the issue of Sanhedrin 6b, where we find:

…As it is said +Proverbs 17+, “He who pours out water first of all from a dispute, and before the quarrel breaks out, abandon it.” Before the quarrel breaks out – you can abandon it (and make a compromise), but after the quarrel breaks out – you cannot abandon it.

And Reish Lakish said: Two who have come to judgment, one soft and one hard, until you hear their words or when their words are heard and you do not know where the law is leaning – you are permitted to say to them: I do not need you. Lest we commit a strong man and find him a strong man, we may pursue him. When their words are heard and you know where the law is leaning – you cannot say to them: I do not need you, as it is said +Deuteronomy 1+ You shall not be envious of anyone.

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

And he transgresses this and does not want to judge, knowing where the law is leaning, as we said, out of fear of the one being judged, he transgresses this wrong, and if the law also deviates out of fear of him, he transgresses this wrong, except that he transgresses this wrong so that the judgment may not be deviated [commandment 633].

Therefore, both those who do not want to judge out of fear, and those who distort the law out of fear, transgress this law.

From the context, it is very clear that this commandment, like its predecessor, was also addressed to everyone who holds power in Israel, and not necessarily to judges. Decisions by a person holding a public position are supposed to be made honestly and for the good of the public and according to the Torah, without fear of anyone. Whoever does not do so, in addition to being an dishonest person, violates the Law of the Torah.

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

And he will not hesitate to appoint someone who is not worthy.

Although this is not about the appointee, but rather the appointer, it turns out that there is no division. This is proven by its nature, since the person who appoints judges is also a public official, and the duty not to be afraid is imposed on him as the holder of such an office. If so, it is reasonable that the duty applies to anyone who holds a public office.

Halacha ruling

This is also stated in the Rambam, Hala Sanhedrin, 122:1-2 (and in the Shulchan Shulchan HaMoshiach, 12:1):

Two people have come before you for a judgment, one soft and one hard, until you hear their words or when you hear their words and you do not know where the judgment is leaning, you are entitled to say to them, "I do not need you," lest the hard one be committed and someone is found pursuing the judge. But when you hear their words and you know where the judgment is leaning, you are entitled to say, "I do not need you," as it is said, "You shall not be afraid of anyone, saying, "This man is wicked, lest he kill my son, lest he set fire to my crops, lest he cut down my plantings." And if he were appointed to many, he must be in need of them.

Likewise, a student who was sitting before his teacher and saw a right for the poor and a duty for the rich, if he remained silent, then this would pass because he would not be afraid of anyone, and for this it was said that he who speaks falsehood should stay away...

There is another innovation in the words of the Rambam here, beyond what we have seen so far, as the Rambam establishes such a prohibition for every judge, and not necessarily for appointed and permanent judges. Anyone who is qualified to judge and the litigants come before him must resort to them, if he knows where the law is leaning. And regarding appointed judges, there is another innovation in his words, and that is that the distinction is not made regarding them whether they know where the law is leaning or not. Appointed judges must judge every situation that comes before them, even before they know where the law is leaning. And so the Rashba wrote in his reply to the Hadiya, Ch. 2, 344 (see B.I. Rasi 12, which they cited).

The reason for leaving

It seems that the Rishonim disagree on the interpretation of the words of the Gemara. Rashi on Atar writes:

The most important thing: lest he commit himself strongly and be found persecuting him – persecuting the judge to pervert the law.

In other words, the fear is that the powerful will force the judge to reverse the judgment and not to pronounce a just judgment. However, the Maimonides' language implies that he understands that the powerful will pursue the judge in order to take revenge on him.[1]

Therefore, according to Rashi, the threat to the judge is before the ruling, and the judge's desire to avoid the ruling stems from his desire to rule in justice and not deviate from it due to threats. Once he knows where the law is leaning, he is not permitted to withdraw, and then he must face the threats and not change the ruling (and in Tetumim Saka he interpreted that after he has determined the law, there is no fear that he will deviate from it due to pressure). In contrast, according to Maimonides, the judge is permitted to yield to threats and withdraw from the ruling as long as he does not know where the law is leaning. After that, he is already obligated to enter and rule on this case despite the threats. Maimonides implies that the threats are not necessarily intended to deviate from the law, but rather to take revenge on the judge for his ruling after it has been made.

One of the implications that the latter brought to this dispute concerns a situation in which two violent people come before the judge for judgment. If the judge fears for himself, as the Maimonides did, then this situation is no different from the previous situation, since there is a fear that the loser in the judgment will pursue and take revenge on the judge. But if the fear is only of a distortion of the law, as Rashi does, then when both are violent, one will balance the other and there is no fear of a distortion of the law. And in truth, the former and the latter disagree on the question of whether this law exists only when one is soft and the other is hard, or also when both are hard.[2]

B. The boundaries of the law "You shall not dwell"

The division between knowing and not knowing where the law is headed

We have seen that the Gemara and the poskim divide the issue of 'you shall not dwell' between a situation in which the judge knows where the law is headed and a situation in which he does not yet know it. The Gemara also mentions this division with regard to compromise, and there it is quite clear why it is relevant. When a person already knows where the law is headed, compromise is the distortion of the law and the unlawful taking of money from its owners. Only before the law is known is there interest (in one opinion) in compromising in order to prefer peace over truth. However, with regard to 'you shall not dwell' it is not clear what the reason for this division is? Why does someone who is reluctant to judge because of threats, but does so even before he knows where the law is headed, not violate 'you shall not dwell'? What is the reasoning behind this?

The latter explain this as a formal law learned from the verse: after one knows where the law is headed, he is in a state of 'conclusion of the law', and when the Torah speaks of law, it usually means 'conclusion of the law'. Some have explained this from the verb 'tegur' from the root 'to store' (this is one opinion in the Gemara itself), which means that the judge is forbidden to bring his word in (=not to reveal it). And before the conclusion of the law, there is no introduction of his word in, because he no longer has anything clear of his own (this is how the author of Torah Chaim interpreted the issue)[3]. However, the reason for the division itself is not clear.

Some of the latter have explained that before the judge knows where the law is headed, he is not commanded to judge, and therefore he can still withdraw. This assumption requires much clarification, and so on. Perhaps it could be said that before he knows where the law is headed, withdrawal is not seen as due to fear, but can be attributed to other things. But after he has already entered the case and seen where the law is headed, here if he withdraws, it is proven that he did so due to his fear, and this is prohibited by the law of God, "You shall not dwell." It turns out that this is the root of the above explanation by the author of Torah Chaim.

A judge appointed by many

We have seen that a judge appointed by the majority has an obligation to resort to law even before he knows where the law is headed. Why does he really have such an obligation? The Radbaz on Atar explains that this is because such a judge does not need to fear that the majority will help and save him (=protect him from the violent judges). And what if it is a matter of such violence that the majority cannot help him? It is implied from the Radbaz's words that in such a situation he is exempt from resorting to them.

Admittedly, the Radbaz's words are difficult. First, according to his explanation of a judge who is not appointed, then even if he knows where the law is headed, the law should have been that he is not obligated to resort to it, since the majority will not defend him and he is in danger. In general, his explanation justifies the very obligation to resort to the law, but not the distinction between before he knows where the law is headed and after he knows it.

And perhaps the explanation stems from what we saw in the previous section: In an unappointed judge, and especially when he does not know where the law is headed, resignation does not appear as surrender to the threat, since it is not his job to adjudicate laws. Only in an appointed judge does the lack of recourse from the outset appear as escape and surrender. And certainly such a judge is under an obligation to adjudicate even before he knows where the law is headed.

In fact, the Rashba in the above-mentioned answer (Chapter 2, 6, 11) explains in a similar way. He was asked there about a judge who refuses to hear a case in a place where he must hear a case according to the halakhah, and he threatens to use the power of the minister of that place to force a hearing in another place:

To Montshon. You asked: Reuben gave a loan to Shimon, and they both lived in Montshon. And now, Shimon went out to live in another place, in the land of the ministers. And Reuben came before the assembly of Montshon, and before their court, and pleaded with them against Shimon, and Shimon had property in Montshon. And they sent for Shimon to stand with Reuben for judgment before them. And he refused, saying: He will not be judged before them, but Reuben will come to the land of the minister, where he lives there, and he will judge with him there. And he further threatened them with the power of the minister, his masters, if they would do anything against him, like this. And you asked: What does the court in Montshon have to do? And if they have the right to refrain from it, because of the terror of the minister, or not?

To this the Rashba responds:

Answer: The rule of law, all the assets that Shimon has in Montshon, the court must demand that Reuben be brought before them, and they must send Shimon to come and argue with his debtor before them…and if because he lost because of the minister, this does not save the court from demanding the plaintiff. If he has frightened them into doing wrong to them, perhaps he does not have the strength, and they are afraid of the words of the one who comes, and moreover, if so, every person will do so. There is no one who cannot be harmed. And if so, the great are never condemned. And the Torah said: You shall not be afraid of anyone, for judgment is God's.

The court cannot avoid judgment because of the threat, for two reasons:

1. Perhaps there is no real threat. Ostensibly, this is an argument that relies on the fact that the threat is doubtful, and the offense (not to discuss it and submit to it) is certain, and doubt does not exclude certainty (see more on this below).

2. If they submit to him, then the violent will never be subject to justice, and we find ourselves abolishing justice from Israel. And regarding this, the Torah said, "You shall not live before anyone." And see also B.H. Chom, 12:12, 35:1, "Ketvat Mahariu," which wrote so.

We emphasize that the first argument seems to be based on the Sabra: If someone threatens me with an uncertain threat and wants to force me not to perform my duty, doubt takes away certainty. This is even without the verse "You shall not dwell before anyone." The second argument says that even if the threat is certain, there is still no permission to give in to it. This halakha is certainly learned from the verse of "You shall not dwell before anyone." This is itself what is new.

Where does the Radbaz stand?

The Radbaz's reasoning appears, on the surface, to be even more moderate. According to him, the obligation to resort to law is based on the fact that there is really no real danger, since many will protect him. This means that even if there is only a doubt of danger, there is permission to surrender to violence.

Although the Radbaz said this only in a situation where the judge does not yet know where the law is headed. But when he already knows this, here he does not have permission to refrain even without the protection of the multitude (that is, even if he is not an appointed judge). It turns out that the Radbaz also contains the opposite statement, but this is only when the judge knows where the law is headed. If so, even he does not universally permit giving in to threats.

In the words of the Rashba, it is quite clear that this is a situation in which the judge does not yet know where the law is headed, since these things are not mentioned at all in the question, and in his answer, the Rashba does not need to do so. Therefore, it is clear that with regard to a appointed judge, the Rashba agrees with the Rambam's words that there is no difference between a situation in which the judge knows where the law is headed and a situation in which he does not know it. This is also what the rabbinic Rabbinic

how far?

From the language of the Rambam, it seems that the judge must resort to the law even in a situation of real danger. He uses the language 'lest he kill my son', and the language 'he is found pursuing the judge', these are language that means a situation of danger to life. And in fact, the Bahá'í Chóm 6:12 understood the Rambam's language in this way. He also explains that the fact that Rashi disagrees with the Rambam and places a situation in which there is no threat to the judge stems from a perception according to which in the case of real danger there is no prohibition to withdraw from the law. This means that according to the Rambam, even in the case of danger there is a prohibition.

But ultimately the BAH concludes that it is only in doubt of danger, since in a situation of certainty there is nothing that stands before the judge. And in Tomitim Sek.B it means that even in certainty of danger there is no permission to deviate from the law after knowing where the law is headed, and certainly in an appointed judge.

The source of this is in the Book of Deuteronomy, paragraph 17:

Do not be jealous of anyone, lest you say, "I fear so-and-so, lest he kill my son, or set fire to my young plants, or cut down my plantings." Learn to say, "Do not be jealous of anyone, for judgment belongs to God." And so Jehoshaphat says, "+Deuteronomy 22:19-26." And he said to the judges, "See what you are doing, for you do not judge for man, but for the Lord."

The Safri learns this principle from the language of the verse, which justifies the obligation to discuss the claim, "For the judgment is not God's," meaning that there is an obligation towards God to judge. What is the meaning of this reasoning?

It seems that the book's reasoning mainly explains the obligation to judge in a situation of financial danger (and even certain danger). The judge's obligation to judge is only due to the need and commandment to save the wealth of the righteous judge. But against this stands the danger to his own wealth, and therefore he can claim, "Who will bet on me, my dear, if I have a bloodbath, will I bet on my blood?" In other words, why should I give up my wealth to save someone else's wealth? Here the Torah comes and says that the obligation to judge is not due to saving someone else's wealth, but rather it is an obligation towards God, and therefore there are no arguments here about "who will bet on me." For abstaining from fulfilling it ('you shall not dwell'), there is an obligation to spend all of his wealth.

And indeed, we find in the book Yeshuat David, 44:23, that as long as one does not need a judgment, the prohibition of "you shall not dwell" is not upon him, and therefore he can walk away because his own wealth is preferable to saving someone else's wealth. But after he already knows where the judgment is headed, the prohibition applies to him, and now it is a no-no for heaven's sake, and it is not possible to walk away from the judgment even if he loses his wealth. And similarly, it is also written in Shevut Yaakov, 1:33.

But all of this concerns the danger of money. However, when there is a real danger to the life of the judge, and not just to his money, here this reasoning is not clear: And is 'You shall not dwell' one of the commandments about which it is said, 'He shall kill and not transgress'? Why should the judge sacrifice his life in order to save the money of another, or in order not to transgress the law of 'You shall not dwell'?

And indeed, in the glosses of Baruch Ta'am on the Tomitim, the Rabbinic scholar and the Rambam were precise in their language and wrote, "Lest he kill my son," to mean that this is a situation in which the judge puts a morach in his own heart and thus comes to withdraw from the judgment. Such a situation is subject to the prohibition of "you shall not dwell." But if there is truly a reasonable fear of danger to life, he is not obligated to discuss it.

But in the book of Toumim himself he wrote that at least when the judge knows where the law is headed, he does not have permission to leave, even with real protection of life. Thus he writes (ibid., Sec. 2):

The hard-line B"ach from the books of Damboer Dafi' Yahrug M"m cannot be prevented from the law...but if he already needs the law even from the Rabbis, the Rabbis admit that for fear or some reason he will remove himself from the law and is obliged to judge. And in this illustration from the books of Dafi' Yahrug, he cannot be removed. And we mean that he already needs the law and the Rabbis. And I also found in the answer of Shevut Ya'akov Ha"a Si' Remag, that since he knows where the law tends, it is forbidden to remove due to fear in any way, and that is correct.

Therefore, in the reply to Shevut Yaakov, the C.I. writes more radically, stating that from his words there is no permission to deviate from the law in any way, unless there is a clear danger to life, meaning that the person is held liable to be killed for such a thing (and usually the Jews were not suspected of this). Only then would they say that there is nothing that stands before the Pikuon, but in a state of doubt there is no permission to deviate from the law.

explanation

How can we understand the opinions that obligate the judge to consider even in a situation of doubt about the fiqun? Is the wealth of another person better than the life of the judge? And if for some reason the answer is yes, then why not obligate him to consider even in a situation of doubt about the fiqun? The explanation in my book that attributes this to the existence of a lav does not answer the difficulty either, since all the lavs in the Torah (except for the three most serious) are rejected in the face of doubt about the fiqun.

There was reason to understand that this was a public offense, and therefore the judge was commanded to surrender his life in order to prevent blasphemy (since in public every offense is punishable by death and not by trespassing), and this is stated at the beginning of the above-mentioned Shab'i's response. However, he rejects this, since this is not necessarily a public offense. This reasoning should be rejected nonetheless, since every law is punishable by public law, since the appointed court is a public institution, and the public must conduct itself according to the Torah.

Although according to Halacha this does not meet the Halacha test, since we do not obligate the judge to rule in a situation of certain certainty, but only in a situation of doubt. Therefore, it is clear that the reasoning is not public. Although there are systems that understand the Sifra literally, that even in a situation of certain certainty, the dayan must resort to law – this could be the explanation. But how should we understand the systems that divide between certain certainty and doubtful certainty?

It seems that the only way to understand this puzzling halacha lies in the explanation of the Rashba and the Bach. If the dayan does not rule in such a situation, this is a serious loophole, since every violent person will escape the law, and society will be governed in anarchy and fall prey to the violent. Because of this concern, the dayan in such situations does not conduct himself according to the normal rules of halacha that relate to an individual, but rather as someone holding a public office. An individual is not obligated (and probably even forbidden) to risk his life to save another, nor for the sake of a Torah prohibition, no matter how severe. In contrast, here, although there is no situation of danger to anyone, dedication of soul is still required of him. A breakdown in public conduct is like a situation of danger.

The difference between doubt and certainty: the status of the individual within the public

It is true that the identification between public corruption and picun is not entirely complete, since in a situation of certain picun there is no prohibition of "you shall not dwell", and the judge can deviate from the law. If a situation of corruption were equivalent to actual picun, we would have to require him to surrender his life even in a situation of certain danger.

To understand the distinction between a state of public corruption and a state of public corruption, we must again draw upon an important distinction between two aspects in which each person is examined, which I have discussed elsewhere.[4] I showed there that every person from Israel 'wears two hats': the hat of an individual who stands before God, the Almighty, and the hat of a member of the collective body (=Kal Yisrael) who stands before God, the Almighty, and is within Him.

In light of this distinction, we can understand the puzzlement we discussed above. The judge who holds a public position must give up his life even when there is no danger to the life of anyone else, just to prevent public corruption. Although he does so with his hat as a member of the whole. Beyond that, he has another hat, that of a private person, and therefore he is not required to enter into a state of danger, that is, to give up his life, since after all he is also a private person, and as such he also has an independent status, and he is not required to give up his private life in order to correct (or prevent corruption) the common good. The Torah also recognizes his status as a private person, and therefore it permits him to keep his life in a state of danger.

The conclusion that emerges from this is that the obligation to intervene to provide a hazard does not stem from the fact that if this is not done, there is a danger to someone's life, but from the fact that the importance of public damage, even in property law, is like the danger to the life of an individual. Such a view has some very far-reaching implications, and in the next chapter we will try to address some of them. But before that, we must examine an issue that on its face appears to contradict our statements.

Note: Exiled warlord

The picture we have described so far presents public need, even that which does not involve a penalty, as a necessity that justifies committing offenses, and even entering a situation where a penalty is doubtful. However, the law of a military officer who was exiled seems to contradict this claim.

As is known, the unintentional murderer is subject to exile to a city of refuge, and as long as he is not in the city of refuge, the blood avenger can kill him, and he is not punished for it. And here is the Mishnah in Beatitudes 11b, which states the following ruling regarding the blood avenger in a city of refuge:

And he does not go out either to testify to a mitzvah, or to testify to wealth, or to testify to souls, nor even to those in need of him in Israel, nor even to the commander of the army of Israel, like Joab the son of Zeruiah – he never leaves there, as it is said: +In the wilderness of Leah+ to which he fled, there will be his dwelling, there will be his death, there will be his burial.

The Mishnah states that the blood redeemer is not to leave the city of refuge for any need whatsoever. Even if all of Israel needs him as a commander to save them, he is not allowed to leave the city of refuge.

This is also how the Maimonides (Hebrew: Rotesh, 57:8) rules according to the law:

The exile never leaves his city of refuge, not even to speak a commandment or to testify, whether it be a testimony of money or a testimony of lives, or even to save a life with his testimony, or to save from the hand of the army or from the hand of the river or from the hand of fire or from the landslide, or even if all of Israel needs his salvation, like Yoav ben Zeruiah, he never leaves there until the death of the High Priest, and if he does leave, he has allowed himself to die, as we have explained.

These things raise a very great difficulty. If the problem is the exiled commander's obligation to exile, then this obligation is rejected before the general public, and certainly before the general public. Therefore, the latter wrote, and so is also accurate in the language of the aforementioned Maimonides, that the problem is not the fulfillment of the obligation to exile as a punishment imposed on him, but rather that the exiled commander places himself in danger of exile (since the blood avenger can kill him), and a person is not obliged to place himself in danger in order to save his fellow man. Indeed, some latter scholars (see, for example, Osh on the website) cite from this evidence against the words of the glosses of Maimonides (Supa Mahal 'murderer') on behalf of the Jerusalemite, who rules that a person is permitted to place himself in danger of exile in order to save his friend from certain danger. As is known, this rule has not been ruled upon by law (in states of peace), and apparently there is clear evidence for this from here.

So, while on the ordinary halakhic level this ruling seems reasonable, the problem that arises here is that the risk in question here is not a risk posed to another individual, but a danger to all of Israel. How is it possible that a person is forbidden from putting himself in the shoes of a pikoon when the lives of all of Israel are at stake?

In addition to the fact that this law contradicts our statements above, where we saw that even legal anarchy justifies entering a state of doubt about the judge's fiqon,[5] there is a double difficulty here: Ostensibly, this law implies that a soldier is prohibited from going to war, since he is thereby endangering his life (see more on this in the next chapter). Furthermore, his own life is in danger because of the war, as is the rest of the public, and why does this danger not outweigh the danger posed to him by the blood libel?

It is worth citing here the words of the author of the Aruch Shulchan, who refers to the above-mentioned Jerusalemite ruling and writes as follows (Homom 3:14):

The poskim brought in the name of the Jerusalemite that a person is obliged to put himself in danger in order to save his friend. And the former omitted this because our Shas has proven that he is not obliged to put himself in danger. And who is everything according to the matter, and the matter should be weighed in balance and not to protect oneself too much. And in this it is said, "And there we will show ourselves by the will of God" - that is, there is His dwelling place. And whoever saves a soul from Israel is as if he saved a whole world, and Rabbi Si' Ranev.

In other words, even in individual law, the risk must be weighed against the chance and alternative danger posed to others. And this certainly applies when it comes to the public.

The OAS itself comments that there was a case where the sages or the king would establish a regulation that forbids the blood-saver from killing the exiled general, in order to allow him to go to war. The OAS claims that this is an impossible regulation, since the Torah estimates that the blood-saver will not comply with it, and yet he will kill the exiled general. However, with all due respect, these are very puzzling things, since that blood-saver is in danger like all the rest of Israel, and certainly in a situation where he endangers all of Israel, it is permissible to even kill him (and certainly imprison him as a precaution) so that he does not endanger all of us. After all, he has a truly persecutory law against all of Israel. What's more, as we noted, the general himself is in the same danger.

It is a great wonder that the latter ignore this public aspect (the bearers of the tools on the website do not comment on this halakha). If it were not for Demisthapina, it would seem to say that the circumstances in which they operated (in a Jewish community in the Diaspora) prevented them from seeing this important aspect. It is true that some of the latter have commented on this (not necessarily because of the public aspect), and therefore interpreted this halakha differently.

For example, the author of Aruch Shulchan Khum 6th Tikha 27th century writes about the above-mentioned words of Maimonides:

And even though you have nothing that stands in the way of a life sentence, it is true that if a person goes out and his blood is permitted, the Lord will tell him to allow his blood to be used for the sake of others. And since a life was committed by him, it is far from a meritorious act by him.

After he gives the previous explanation, he adds that it is possible that the prohibition on leaving is because his leaving will not bring the desired benefit. Some have written that the obligation of exile rejects the fiqon from the magyaziyya, and it is possible that they mean something similar.

And here, at the end of that halakha, he adds:

And one must be satisfied with whether he wants to go out for the commandment of Piku'n, whether he has the will or not. From the perspective of the explanation, it would seem that he does not have the will, and what we have learned in the verses 11b that he does not go out from there means that he is not forced to go out. And this is what is meant by a little bit of Jerusalem there, and Tza'at La Dina.

We see that his mind is not at ease with the previous explanation, and therefore he suggests that the option of remaining in the city is only the commander's right and not an obligation. Therefore, if he wants to go out and fight, he is not protested (only his right to refuse, since he is not obligated to risk his life for the sake of others).[6] Or perhaps one could say more than that, that there is no prohibition at all to go out, and the Mishnah's intention is only to say that even if he goes out to save Israel or to fulfill a mitzvah, this does not take away the right of the bloodsucker to harm him. In other words, this is not a prohibition imposed on him, but rather that the danger to him remains, and if the bloodsucker harms him, he will not be punished. And indeed, if the Sages establish a prohibition on the bloodsucker or ban him as a persecutor, there is nothing in it, and this is certainly a possibility, but not what we are dealing with. Here, they are merely stating the principled law that the bloodsucker's right to remain in place is based on the main law, and if the Sages wish, they will establish special regulations here.

Whatever the explanation for this puzzling law, it is clear that it is an exceptional case, and it does not reflect a fundamental perception. The difficulties with it remain the same (for example, according to which a soldier is forbidden to go to war and risk his life), unless we accept the words of the author of Arvah, that the Torah tells us that an unintentional murderer cannot save Israel, and therefore his going out would be of no use. In any case, it seems that the picture we have presented so far remains intact.

C. Halachic implications

Police on Saturday

Usually, when we deal with the question of whether it is permissible to operate a public service on Shabbat, we ask whether not operating it entails a risk to the lives of any of the citizens in society. It is known that when referring to society, the treatment of risks is done in a much more lenient manner. The main reason for this is that a slight risk to an individual person translates into a real risk to society as a whole. For example, the Gemara says that one extinguishes a hot coal in a brazier on Shabbat. The method of the Ge'onim is that even extinguishing a Torah scroll is permissible here. It is clear that this is not a situation of tangible danger to lives, otherwise there would be no room for dispute, and there is nothing new in this. The newness here is that a slight risk that does not permit desecration of Shabbat for an individual person permits it in relation to the public (when the hot coal is in a brazier).

The explanation for this seems to be simple:[7] Assuming that the risk is 0.1%, then for a single person (i.e., for a coal found in a single person's yard) there is no reason to permit such an extinguishing. But in a public place, thousands of people pass by, and therefore such a chance becomes almost a certainty that one of them will be harmed. Therefore, from a statistical point of view, it is possible to permit the desecration of Shabbat for the public even at low risks.

But here we are talking about a completely different principle. In the matter of a judge, there is no direct risk to lives at all, but only the risk of legal anarchy, and yet we oblige the judge to risk his life. If so, why don't we also permit the desecration of Shabbat for the same reason?! After all, if such a situation does indeed reject the question of the Picun, and the question of the Picun rejects the Shabbat, then it seems that such a situation should certainly also permit the desecration of Shabbat.

The conclusion that emerges from our discussion is that, at least for these methods, police operations on Shabbat are permitted even in a situation where there is no risk to life, merely because of the fear of legal-social anarchy. For example, if it is known that there are no murderers and no danger to life, but only a fear of theft, is it permissible to desecrate Shabbat in such a situation? The answer is that if the fear is that a situation will be created in which society as a whole must fear thieves on Shabbat, since there is nothing to prevent or hinder them from stealing on Shabbat, this justifies desecration of Shabbat.

The conclusion is that the permission to deploy police on Shabbat exists even for the sole purpose of preventing theft of money. This is a major innovation, but for the sake of argument, it emerges clearly from the opinions of the aforementioned rabbis on the issue we are dealing with here. Of course, the matters require extensive investigation and a decision by the great rabbis, and I have come here only as a proposer.

Now we can ask ourselves what about other public services and institutions? Should they also be operated on Shabbat even without the necessity of a Pikun? The answer to this is not clear. For example,[8] is it possible for a country's foreign service not to operate on Shabbat in the modern world? And, of course, we are not referring to the problems of a Pikun that could be involved in this matter, but to the very deterioration in the public functioning of society and the state, that is, to social anarchy. On the other hand, it is clearly unreasonable to say that every public need would justify desecration of Shabbat, and therefore the line in this is not clear.

Possible conclusion regarding soldiers in battle and in general

Another situation in which we see the distinction between an individual and a public is war. According to halakha, a person is forbidden to give up his life to save his friend from danger (although see Yerushalmi, which the Hagahami brought in a pa'a from the halakhah, a murderer, but there is no halakha like it). But in war, this is what every soldier does. He risks his life to save civilians, and sometimes also to save his fellow soldiers. What is the permission to do this? Apparently, the permission is based on the fact that it is an act of public significance, and the soldier is not acting as a private individual but as an organ of society and the fighting army. Therefore, he is required to risk his life for purposes for which, as a private individual, he would not be permitted to do so.

Of course, the comparison is not complete, since in war there is a danger to life for society and certainly for soldiers, and not just a danger to social anarchy. Therefore, here the permission seems well-anchored in the laws of the Jewish People. But this is not precise, since one can ask whether it is permissible for a soldier to give his life to save the lives of his fellow soldiers regardless of victory in the war? For example, in the Second Lebanon War, Major Roy Klein, the late, fell on a grenade and gave his life to save the lives of several of his unit members. Such a situation is not a sacrifice of life for the sake of victory in the war, or in any battle, but for the sake of saving the lives of several individuals. Is such an act permissible from a halachic perspective?

This is not a simple question, but it is permissible from the perspective that as a soldier he does not wear the private hat but the public hat, and therefore the considerations are not considerations of Reuven's life versus Shimon's life, but rather the giving up of an organ in order to save other organs. If the whole is the body that is in doubt here, it is permissible to cut off one branch of this organ in order to save the other organs.

Now we can ask whether there is an obligation to do so? Moreover, even in a situation where this is required for the sake of victory in battle, does the soldier have an obligation to give up his life in a situation of certain death (i.e., a situation in which he will certainly be killed for the sake of victory)?

There seems to be broad agreement that this cannot be imposed as an obligation. Although, as we have seen, such an act is permitted in a military context (unlike a civilian context), it cannot be imposed as an obligation. Not an act like that of the late Roy Klein, nor a similar act for the sake of victory in battle. It is impossible to oblige a soldier to give up his life in the face of certain death for the sake of victory, but at most to oblige him to put himself in danger (the very act of participating in war is an entry into danger, which is prohibited in the context of an individual's normal life).

This is an expression of the other side of the coin that we encountered above. Although the soldier in uniform wears the public 'hat', at the same time he also has the face of an individual, and as such, although he is required to enter into certain danger, he cannot be forced to enter into certain danger.

Even with regard to the appointed judge, who, according to some opinions, must enter a state of doubtful danger, we have seen that he cannot be required to enter a state of certain danger. Now we can ask whether he is permitted to do so? In light of the analogy to a state of war, the answer may be yes. This is permitted, even if he cannot be required to do so. A person can decide to give up his private hat in order to function as a member of the general body, but this decision is his alone. He is not obligated to do so, but he is permitted to do so. This severe ruling is also offered here for public consideration, and it is certainly not worth my while to rule on it.

War on Saturday

The permission to fight on Shabbat, learned from the verse "until it descends" (see Shabbat 19, and parallels), also seems to belong to the same line of thought. It is clear that this is not a regular fiqon, since in this regard no source is required for permission to violate Shabbat. We are necessarily dealing with a situation in which individual law does not permit desecration of Shabbat (for example, a war of authority, or a situation in which the war can be postponed, etc.). And according to our words, it is possible that the basis of the permission is that in public law it is permissible to violate Shabbat even in these circumstances, due to the fear of anarchy if there is no victory in the war, and if it is clear that we are not fighting on Shabbat.

Indeed, all of our statements must be commented on from what is presented in the Gemara (see Eruvin 40:1), and it is ruled in the Shulchan Orach 39:56-7:[9]

The Akkadians who besieged the towns of Israel, if they came for a financial transaction, they did not desecrate the Sabbath against them; they came for a transaction of lives, and even if it was just for nothing, they went out against them with weapons of war and desecrated the Sabbath against them; and in the city next to the book, they did not even come except for a transaction of straw and chaff, desecrating the Sabbath against them. The thought: And even if they did not come yet, they only wanted to come (Ez).

Therefore, the law is that one should not go to war on Shabbat for financial matters (hay and straw), but only in a situation of danger to life. Even in the towns near the book that allowed going to war even for hay and straw, the reason is only because there is a future fear of loss of life (that the place will be seized and the land will be easy to conquer for them).

This seemingly contradicts our words, since according to our way, even in a place where there is no danger to life, public concern for wealth permits the desecration of Shabbat. And in truth, the matter requires explanation and explanation, since according to this policy, all the Gentiles around us will know that on Shabbat they can come and take all our property, and announce that they are coming for financial matters only and there is no threat to life. In such a situation, the life of any creature is not at stake. For a similar reason, the judges were obliged to risk their lives in order to judge a violent person.

And here we find in the glosses of the Asherahs on the Eruvin (30:6) that during this time when we live among the Gentiles, we go out to them with a vessel of filth and desecrate the Sabbath because it does not detract from the city adjacent to the book. And so the Shulchan Aruch rules there in the following halakha (57):

There are those who say that at this time even those who are involved in money matters are profane, and that if Israel does not allow us to deprive and despise our money, we will kill it, and woe to those who are involved in life matters (and everything is according to the case) (Rulings of the Maharai, 355/56/).

And the things are puzzling. Why does the fact that we live among the nations make the situation similar to the city next to the book? And does the danger of money become a problem here? In other words (and this is how the Maga put it there, and his excuse is very narrow): Why don't we give them the money and prevent the need to desecrate the Sabbath?[10]

Therefore, it seems to be clear that his intention is different. It may be motivated by the problem we raised above: after all, we live among nations, and therefore if we adopt a consistent halakhic policy that prohibits defending ourselves on Shabbat, the Gentiles will come and take all our property on Shabbat, and we will not spare the lives of the sons of our forefather Abraham.[11] Therefore, the HaGa compares this to the situation of a city near the Book. And there, too, the basis for the permission is not the future fiqon (as the poskim explain), but the fact that the city is located near the Book, and if we do not deal with them harshly, they will take advantage of this and take all the wealth on Shabbat as a permanent policy. Therefore, in the city near the Book, they permitted the desecration of Shabbat even for the purpose of straw and chaff. And the reason they did not permit this also within the land is only because there is no fear that this will become a permanent situation in which Israel's property will be unoccupied. But if there were such a fear also within the land, we would indeed permit going to war over straw and chaff transactions within the land, and this seems simple to understand.

Formal and substantive reasoning

In our view, the formal justification of fear of future riots, which is presented as the basis for the permit in the towns adjacent to the book, is nothing more than a halakhic fiction, the purpose of which is to rely on a formal halakhic permit mechanism. But the basic motivation is the need to protect the property so that it does not become vacant, and so that there is no anarchy. This is the very permit that we mentioned above regarding the operation of the police on Shabbat. It is possible that the Haga needed this fiction only because it is dealing with a community situation and not with an autonomous society. An autonomous society (like a state) is permitted to operate various services on Shabbat even without these fictions.

It is worth showing[12] that the permission to kill a thief who comes underground is also based on the same mechanism: the basis of the permission is the need to protect property from a phenomenon that could lead to social anarchy (if there were a prohibition against killing thieves, they would take advantage of it and steal with all their might), and the mechanism of the permission required a rather convoluted consideration of a future Picun. Here too, the reasoning of a future Picun is a fiction, and it is necessary only because the permission is given to any private person whose home a thief comes to. But with regard to the permission for the state to operate police on Shabbat, there is no need even for a fiction of a future Picun; it is enough for us that there is a fear of anarchy.

We find an explicit example of such a permit in the words of the Shulchan Aruch (Homo Si' Shaphah 51) and the Rambam (Holocaust Hovel Pa'ach 51), which permit killing someone who gives away his friend's money after warning. Here too, the permit is to kill for the purpose of protecting property. It is possible that the permit was given to the community/society authorities, and not to a private individual (this would require the fiction of a future fik'un to receive such a permit, and so on).

The equivalent of all of these is the permission to kill in order to save money, and this is in a place where we are dealing with a social phenomenon where the absence of permission could lead to general anarchy. In a place where there is a local risk to money, it is certainly forbidden to kill, and certainly not to be killed. If our words are sincere, then the halakha of fighting on the Sabbath certainly does not contradict the line of thinking we have proposed here.

Further conclusions

There are several other conclusions, in ever-widening circles of the analogy we have made here. But we will conclude with the basic conclusion that a policeman or soldier, like any public servant, is not permitted to refrain from performing his duty due to fear of danger. This applies even where the purpose of the activity is not directly related to saving lives.

It is well known that there are entire areas in the country that police officers are afraid to enter in order to carry out their duties (both in criminal and nationalist contexts). The conclusion from our discussion is that this is prohibited, and they are obligated to carry out their duties in full, even in a situation of doubt. Although there is certainly danger, there is no such obligation, and whoever wishes to do so nevertheless, this is permitted and of course also worthy of great respect.

Many needs are like the needs of a mitzvah.

Some recent scholars have written that giving money for public purposes, even if the purpose is a matter of authority, is considered a mitzvah. Therefore, in their view, such giving is considered charity. This has several halachic implications, such as the fact that it can also be done from tithe money. There are even opinions that paying taxes to the state (at least in part) is considered charity.

For example, the author of the Shulama, Oha C. Kang, deals with the question of what to do with funds collected for a specific purpose, and of which there is a surplus after the execution. The Shulama rules that in such a case, the funds can be used for any purpose the public wishes. And here, the Maga on Atar (ibid., s. 60) explains this ruling by saying that the opinion of the people of the city in advance was that the money could be changed for any purpose. In contrast, the Taz (ibid., s. 62) is precise that the Shulama here used the language 'mishnin', as opposed to the language 'rashain yizhat' that appears there in the Baz. In this case, it is a matter of consent from the givers, and therefore the money can be spent even for the sake of the authority, since the givers' opinion is the determining factor. However, in the case of Didan, the meaning of the language is that it must be spent for the sake of a mitzvah (and "mishnim" means to change from a strict mitzvah to a light one). Therefore, he explains that although it is possible to change for any need they wish, this is not because the public has agreed to it in principle, but because all public needs are considered to be a mitzvah.[13]

At the end of the section, he proves this from the issue of Megillah 27, and also from the law that oversees the needs of many on Shabbat.[14] Indeed, there are many other sources that the needs of many are like the needs of a mitzvah. See Mok. 6a, and Shulchan A. O. C. 6:1, and also there in Bar-S. Tikma (and in the commentary on the halachah there, i.e., 'needs of many', and in the F. M. G. cited there) that many needs are done on a certain day. And also in Shulchan A. O. C. 6:14 regarding one who deals with many needs should not stop performing the laksh. And also in Yod. S. R. 22:21 that the needs of many are like the things of a mitzvah to permit a vow on the advice of many for them. And also in Mag. S. R. 22:22, and many more.

Why are the needs of permission of many considered as the need of a mitzvah? Apparently, we see here a consideration similar to what we raised above: permission for many is like a mitzvah for an individual. Spoilage for many is like a kifikun for an individual. In other words, addressing social problems that affect the entire public elevates their status compared to those problems for individuals.

In this article, we encountered two different aspects in comparing the laws of the individual and the laws of the multitude. We saw that there is a statistical difference between the situations by virtue of which public laws should be relaxed (that if there is doubt about the public's right to a remedy, there is certainly the right to a remedy for the individual). We explained that this is not a fundamental difference but a matter of the quantity and probability of the risk. On the other hand, we saw that a harm that does not concern the lives of the many is like a hedge of remedy for the individual. This is already a fundamental difference between the individual and the many, in that the needs of the public are considered greater than the very virtue of the public (even though objectively it is a problem of money). Now we see something similar, in that the needs of permission of the many are considered the needs of a mitzvah of the individual. This aspect also reflects a fundamental difference between the way the halakhah treats the individual and the many.

[1] See request and B.H. H.M. C. 12, Sec. A.

[2] See Thos. on the website, and in the book "The Key" (published by Frankel) on Halacha I in Rambam.

[3] And some recent scholars have already found it difficult to explain this explanation in the Maimonides' language, which means that he interprets "tegur" from the words "fear" and "gur" and not from the word "agira." Therefore, it is difficult to explain this explanation in him. See the key book to Frankel on the "Ks" of the "Basva"a.

[4] See on this in my article, 'The Problem of the Relationship Between the Individual and the Whole and the Dilemma of the 'Defensive Wall'', Tzohar Yad, and also in Illumination 15 in the book Two Carts and a Balloon. See also my articles on the Ki-Tisa and Be'A'alutach parshas, 567, which are about to be published in a book that collects them in Azah during the next year.

[5] It is possible that there is not such a direct contradiction, since here perhaps it is a situation of certainty, since the blood redeemer will kill him. It is true that it must be denied that the blood redeemer himself is in danger, and it is difficult to see certainty that he will not hold back and endanger the public by killing the general.

[6] This also contradicts what we saw above, that the judge is obligated to enter to provide security, and not just that he has the right to do so.

[7] See on this in the article by Rabbi Hanan Ariel, ‘Public Transportation – A Halachic and Moral Obligation’, Tzohar 15. There he insists that beyond the privileges and special voices that the public has as a public, there is also this statistical consideration.

[8] Yeshayahu Leibowitz raised this example, as part of a comprehensive argument advocating the operation of necessary governmental institutions on Shabbat, even without considerations of fiqon. Here we find a possible halakhic source for this view.

[9] See this in the responsa of Tzitz Eliezer, Ch. 3, 69, and in our article on Parashat, 5767, and more.

[10] See, for example, Shabbat Observance as a Rule of the PAMA, note 8, what the Maga brought on behalf of the Rabbinate Auerbach and what he commented on his justification. Ultimately, the Maga's words directly contradict the issue of 'coming underground', and only our proposal here can save them from this (see on this in my article, 'Is it permissible to kill in order to protect property', which will be published in the upcoming issue of Tecumin).

[11] Here there is even a future danger to life, since in the absence of money some people will find themselves in danger of death. But that is not the whole point of the matter.

[12] For details on the arguments raised here, see my articles above in the following section.

[13] See the response of the Chass Yod Si' Ramad, who brought it, and also in Si' Rech.

[14] It seems that he is referring to the Shulchan Shulchan S. Shulchan H. (see ibid. in M.B. 728), as well as in B.H., and see also in M.G.A. S. Shulchan