Desecration of Shabbat in the Police: C. Theoretical Foundation (Column 531)

With God’s help

Disclaimer: This post was translated from Hebrew using AI (ChatGPT 5 Thinking), so there may be inaccuracies or nuances lost. If something seems unclear, please refer to the Hebrew original or contact us for clarification.

In the previous column I presented the permissibility of operating the police on Shabbat not on the basis of pikuach nefesh (saving life) in its conventional sense—that is, even in situations where no danger to human life is present. I defined “public pikuach nefesh” as the concern that public order be undermined (regardless of any risk to human life). In the background stands a conception that the public is an organism with an independent standing of its own; therefore one can and should care for its life just as for the life of a private individual, and from here derive the leniencies the Sages adopted regarding the public beyond those that follow from the mere fact that it includes many individuals. Let me recall that we saw that even for a private individual there are interests that, by logical reasoning, seem commensurate with life, and for them one desecrates Shabbat (“shuryanei d’eina”).

In this column I will conclude this mini-series by expanding this thesis regarding the public and presenting some additional implications. Afterwards I will conduct a brief comparative analysis of Rabbi Rami Berachyahu’s article and the critique raised against it. I have already discussed this conception in several places in the past.[1] Here I will review it and add a few more aspects.

What Is “the Public”: Fascism vs. Individualism — An Ontological View

In the fascist conception, the collective stands at the center and individuals merely serve it. They have no independent standing and their interests are of no significance (except insofar as they touch the collective). The individual is subjugated to the collective. By contrast, in the individualist conception the situation is the reverse: the individual is central, and the collective exists only to serve him.

Of course, this dispute touches first and foremost on modes of conduct (what and how ought to be done) and not necessarily on metaphysics, but it is convenient to describe it in an ontological framework (what exists and what does not), and in many cases I think it really does underlie the dispute. In the ontological sense, fascism sees the collective as an existing entity, and the individual as merely one of its organs. Individualism sees the individual as the existing entity and the collective as a useful fiction (but not something that exists in reality). In the previous column we saw a possible ramification of this dispute regarding an order to a soldier to embark on a suicide mission, or a demand that a public officeholder act even at the cost of his life.

At first glance it is easy to recoil from the fascist view that sees the collective as an existent entity. A public does not look like an entity but rather like a social-legal-philosophical definition. A person is a tangible being that anyone can discern and see, but a public is not. Yet if we look again at a private individual, we will see that he too is nothing but a collection of organs, and at a higher resolution a collection of cells, molecules, or even elementary particles. In what sense is a human being an entity whose individual existence is self-evident? Is a person not, like the collective, a fiction? On this view, what truly exists are only elementary particles. The concept “organism” comes to address this difficulty, asserting that if there are cybernetic relations among all parts of a body, we may see it as one whole and relate to it as a defined and distinct entity. If so, this is true of a public as well.

In the past (see, for example, column 397) I brought the example of the philosopher John Searle, which appears in his book Minds, Brains and Science. His claim is that emergent properties characterize a collection of particulars without characterizing any one of them separately. For example, liquidity (indeed, state of matter, or any thermodynamic property) is a property of an ensemble of water molecules, but it does not characterize a single water molecule. It emerges at the level of the whole’s integration, whereas it does not exist at the level of the particulars. He argues that the mind is also an emergent property of the material whole, but here, in my opinion, he errs because he does not distinguish between strong and weak emergence (I discussed this at length in my book The Sciences of Freedom). If we take this a step further, it is quite reasonable to say that if there is a property of the whole that does not exist in the particulars composing it, then the whole is an entity that has an existence of its own (and not merely a collection of particulars). A property characterizes an object; thus, for example, a liquid has the property of liquidity. If this property appears in the world, then its subject is an existing entity.[2]

The Halakhic Conception

In the previous column I noted that the halakhah seems to assume a model that combines these two aspects, according to which each person is viewed as wearing two hats: a private hat and a hat as a limb of the collective. We saw that he is judged under each separately, that claims are made upon him by virtue of each, and that neither absolutely overrides the other. On the ontological plane, halakhah relates to the public as an existing entity and also to the individual as another existing entity. Both have independent standing, even though one would seem to be included in the other (only seemingly, for in parallel to being a limb of the collective he also has independent standing).

Once we see the collective as an existent entity, it is easy to reach the conclusion that if it has life it may also have death, and that the death of such an entity may be considered as grave a danger, and perhaps even graver, than the death of a private individual. I defined the death of a collective entity as the undermining of its organic-cybernetic order, and the corollaries are that in order to prevent this one may transgress prohibitions (such as desecration of Shabbat), or demand that people risk their lives.

All this we saw in the previous columns. I now seek to broaden the meaning and implications of these claims.

Two Implications in the Laws of Ritual Impurity

There are two special laws regarding tum’ah (ritual impurity) in the public sphere, and in my view they express the picture I have described here: “impurity is permitted in the public”, and a doubtful case of impurity in the public domain being ruled leniently.

As is known, in Pesachim 66b the Tannaim and Amoraim dispute whether impurity is “permitted” (hutrah) or merely “overridden” (dechuyah) in the public context. For example, if the majority of Israel are impure on the eve of Passover, one may still offer and eat the sacrifice in impurity (and need not postpone it to Pesach Sheni). If impurity is merely overridden in the public context, one could understand this on the basis of the importance of the public and consideration for it: because of the public’s stature, the laws of impurity are pushed aside. But how can we understand the claim that impurity is permitted in the public? Where exactly did the impurity go when it comes to the public?

It seems compelling to say that in the public, impurity is not relevant at all. A possible explanation can be based on two assumptions. One is that impurity is a kind of death (and indeed is caused by death; a corpse is the “father of fathers” of impurity). Another assumption is that the public does not die. Thus, in halakhah a public sacrifice whose donors have all died is still not considered a sacrifice whose owners have died. Its owner is the public; even if all the individuals comprising it at a given time have died, the public still exists (so long as it has continuity in future generations). Tosafot s.v. Korbanot in Me’ilah 9b attributes this to a verse in Ecclesiastes:

“Public offerings for the public”—meaning, even if the generation of the public offering has died, the public remains, for ‘One generation passes and another comes’ (Ecclesiastes 1).

The combination of these two assumptions leads us to the conclusion that impurity is irrelevant to the public. The death of all the individuals does not annihilate the public; therefore death is not applicable to it. Admittedly, according to our approach, death is applicable if it disperses (for example, due to the undermining of public order) and has no continuity in future generations.

Something similar may perhaps explain the law of doubtful impurity in the public domain. As is known, a biblical doubt is judged stringently, but a doubt of impurity is different. The rule is that a doubt of impurity in a private domain is ruled stringently, whereas in a public domain it is ruled leniently. Why be lenient with a doubt of impurity in the public domain? I once thought (see, for example, here) that the reason is that impurity is not applicable to the public, and therefore not in a domain that belongs to the public. But now one may object: why, then, is definite impurity applicable in the public domain? A possible answer is that if there is definite impurity, that matter is judged regarding the individual who became impure. It is a private matter even if it happened in the public domain. But a doubtful impurity is not concrete impurity located in a clear place; rather, it is a place suffused with concern for impurity. Such a doubt leads to the general closure of the public domain to the public at large (for fear they may become impure), and therefore this is a public matter. This explanation requires further discussion, of course, but together with the previous law it may be more than mere homiletics.

The implication of this picture is that the public is indeed a living, kicking body, except that its life is essential to it. It cannot die—unless order is undermined and the public disperses physically without continuity (this of course does not apply to the people of Israel as a whole, but only to a given community).

Relating to the Public

At the end of my article in Machanechecha, mentioned in the previous columns, I brought several further implications of relating to the public as an independent entity and of the public’s elevated status (which, among other things, leads to the conclusion that whatever happens to it is a form of pikuach nefesh). I will briefly bring a few of them here.

Several later authorities wrote that giving money for public needs—even if the goal is discretionary—counts as a mitzvah purpose. Therefore, in their view, such giving is a form of charity. This has several halakhic ramifications, such as being able to use tithe money for it. There are even opinions that paying taxes to the state (at least in part) counts as charity. Another example: in Shulchan Aruch, Orach Chayim §153:5 discusses what to do with funds collected for a certain purpose when a surplus remains after the project. He rules that in such a case the funds may be directed to whatever purpose the public desires. The Magen Avraham (there, §6) explains this ruling by saying that the townspeople’s intent from the outset was that the money could be repurposed. By contrast, the Taz (there, §2) infers that the Shulchan Aruch here used the term “they change,” as opposed to the term “they are permitted to spend” that appears there in §7. In §7 the case concerns explicit consent of the donors, and therefore one may spend even on discretionary matters, since the donors’ intent is decisive. However, in our case the wording implies that the money must be spent on a mitzvah purpose (“they change” meaning from a weightier mitzvah to a lighter one). He thus explains that one may indeed redirect to any need they wish, but not because the public agreed to this ab initio; rather, because all public needs count as a mitzvah purpose.

At the end of the paragraph he proves this from Megillah 27, and from the law that one oversees public needs on Shabbat. There are many other sources that public needs are like a mitzvah need. See for example Mo’ed Katan 6a; Shulchan Aruch, Orach Chayim §544:1; likewise at the beginning of §545 (and in Bi’ur Halakhah there s.v. “tzorkhei rabbim,” and in the Pri Megadim cited there) that one may attend to public needs on the festival. We also find in Shulchan Aruch, Orach Chayim §70:4 that one engaged in public needs should not interrupt for the recitation of Shema. And in Yoreh De’ah §228:21 it is stated that public needs are considered a mitzvah matter to permit releasing a vow on the stipulation of the public. See also Magen Avraham §218:22, and much more.

Why are discretionary needs of the many considered a mitzvah need? Apparently we see here a consideration similar to what we raised above: what is discretionary for the many is like a mitzvah for the individual, just as breakdown among the many is like pikuach nefesh for the individual. That is, addressing social problems that touch the public as a whole elevates their status compared to the same problems in individuals. These aspects as well reflect an essential difference between halakhah’s treatment of the individual and of the many. True, this does not necessarily mean that undermining social order is like pikuach nefesh, but it does mean we are dealing with an essential and significant need. Reason can then say that one desecrates Shabbat for it (as we saw in the previous column regarding shuryanei d’eina, and more).

Sovereignty vs. Ownership

One of the differences between the individual and the public is expressed in the distinction between ownership and sovereignty. A private person can own property. Objects belong to him, and he can use them and forbid or permit others’ use of them. In the public sphere, another concept appears: sovereignty. When some asset lies within the territory of a sovereign state, its ownership belongs to a private person, but sovereignty over it belongs to the state (and to some extent the city or community). The state, as sovereign, can expropriate it for public needs or impose restrictions on its use.

To sharpen the point: many treat the War of Independence or the Six-Day War as the theft of Arab lands. But this is a categorical error. If a plot has a private owner, he remains the owner even after conquest. Conquest is not theft but a change of sovereignty. The sovereign over the territory changed, but not the owner (even if he fled and is not present). One can certainly speak of theft of sovereignty, but that is another story (a relevant argument is that there was never Palestinian sovereignty anywhere).

There is a parallel between the individual’s ownership and the public’s sovereignty.[3] Theft is taking property from its private owner; undermining sovereignty is a kind of theft from the public. I introduce this distinction both to continue the analogy between the life and death of a person and of a public, and also as a preface to Rabbi Rami Berachyahu’s article (the Police Chief Rabbi) in Techumin, mentioned in the previous columns. I wish here to relate to it briefly and point out ramifications of the analysis I have presented here in its contexts.

“Sovereignty as a Halakhic Consideration”

Rabbi Berachyahu’s article appears in Techumin 39 (5779), under the title: “Sovereignty as a Halakhic Consideration: Securing the ‘Holy Fire’ Ceremony in the Church of the Holy Sepulchre.” The article is long, and here I will touch only on the principles relevant to us (which appear in chapters 3–5 of the article).

Chapter 3 is devoted to defining the settlement of the Land in its public sense. Rabbi Berachyahu argues that the police’s entry into any place in the country is an expression of sovereignty, and that the mitzvah of conquering and settling the Land includes imposing full sovereignty over it. He also argues that constraints imposed upon us by the laws of the nations (international law), such as a prohibition against destroying churches or expelling non-resident gentiles, do not detract from the status of conquest and do not indicate a lack of sovereignty. For our purposes here, what is important is what he writes in Chapter 4 of his article: his claim there is that entering such places is part of the mitzvah of conquest and sovereign control over the Land.

He opens the chapter with proofs from some Rishonim that the permission to desecrate Shabbat in towns near the border (see the previous two columns) is not due to pikuach nefesh but by virtue of conquering the Land (i.e., sovereignty; see Chazon Ish on Shabbat 2:23 who infers thus from the Rambam). In note 18 he adds that for this reason one does not apply the law of the “idolatrous city” to a town near the border, and there no one mentions pikuach nefesh considerations (I am not sure that the fear that gentiles will enter and destroy towns in Israel does not express a consideration of pikuach nefesh). He cites authorities who permitted desecrating Shabbat and transgressing prohibitions for conquering the Land, even without pikuach nefesh considerations. His claim there is that internal security carried out by the police is part of conquering the Land and sovereignty over it, and therefore desecrating Shabbat within it is justified. Thus, for example, he permits (following earlier authorities) desecrating Shabbat to protect minorities or Jews who desecrate Shabbat, since harming them in our territory is an injury to the state’s sovereignty.

He opens Chapter 5 with the following sentences:

Were I not afraid, I would say that not only in securing events that are sensitive from a security and diplomatic perspective is the Israel Police obligated to act on Shabbat by virtue of the mitzvah of settling the Land and exercising sovereignty, but that the very work of the police in enforcing the law and maintaining public order has standing within the realization of Israeli sovereignty, and thus constitutes fulfillment of the mitzvah of settling the Land in its public sense.

Seemingly here he approaches my thesis. Immediately thereafter he begins to elaborate. In §1 he writes that the police’s presence, even in routine activity, deters hostile terror elements—but this relies on indirect pikuach nefesh considerations and not on permission for public needs (pikuach nefesh of the collective). In §2 he already broadens the permission by virtue of sovereignty considerations:

From these words it is proven that the definition of the mitzvah of conquering the Land does not depend only on an army that conquers territory and guards the borders against enemy states, but that this mitzvah also depends on the routine work of the police, which enables a life of “tranquility and governance,” like a man acting within what is his; for were the Israel Police to go on “vacation” even for a short period, it is clear to all that normal life in the State of Israel could not be conducted, and certainly one could not live within the country in tranquility and security. It emerges that the Israel Police is that which holds up the State of Israel and ensures the realization of the mitzvah of settling the Land.

Here the phrasing is very similar to mine, but still not identical. His claim is that this is permitted by virtue of sovereignty, whereas I argue for the same scope of permission but due to the concern of undermining public order. Admittedly, in §4 there he comes very close to my claims. There he speaks about how, in the absence of an effective police, social and public tensions may undermine the social fabric and public order. Yet even there he attributes this to the question of sovereignty and, by implication, to the mitzvah of conquering the Land.

Ramifications of the Differences in Reasoning

Where do these differences matter? Consider police activity on Shabbat in a non-Jewish country. There, too, there is their sovereignty over their land, and it is important to maintain it. As a Jewish citizen of Belgium, I should participate in maintaining public order for the Belgian collective. Does this permit me, as a Belgian police officer, to desecrate Shabbat? One might say yes, for the Belgian collective is also a living entity, and social breakdown there is pikuach nefesh of the Belgian public (including the Jews within it). In particular, according to my view that there is no difference between desecrating Shabbat to save a gentile’s life and to save a Jew’s life, ideally one desecrates Shabbat also to save a gentile’s life, and not only due to “appearance” or “ways of peace.” If so, ostensibly danger to the functioning of a gentile state’s collective would also justify desecrating Shabbat. However, in the previous column I added that the consideration of public pikuach nefesh is based on treating a value as important at the level of human life, which permits transgressions such as desecrating Shabbat for it. I brought as an example the law of shuryanei d’eina, and more. If so, it is possible that maintaining the fabric and functioning of a gentile state is not a sufficiently weighty value to justify desecrating Shabbat, and therefore there it would be forbidden to do so.

But what about a Jewish community abroad, or even a Jewish state abroad? One can imagine a structure like in the U.S., where the police is a department within the municipality. Suppose there is a Jewish town in the U.S. that needs to maintain a police force. Would it be permitted there for Jewish police officers to desecrate Shabbat in a situation without pikuach nefesh? There are no considerations there of the mitzvot of conquering and settling the Land, but there is a Jewish collective whose functioning is in danger.

This reminds me of what I wrote in my article in Tzohar XI. There I cited Rabbi Yisraeli, who permitted harming innocents in the context of a targeted killing and grounded it in the laws of war. I asked what the law would be for a private individual—a being that cannot declare war—who is attacked by a nation or collective that pursues him. If neutralizing the threat may cause collateral damage to innocents, would it be permitted for him to do so? According to Rabbi Yisraeli this would be forbidden, for the permission exists only within the laws of war. By contrast, according to my view it suffices to argue that my enemy is a collective and not a private individual to permit harming innocents when necessary (see there for the reasoning). I argued there that there is no need to reach the definitions of the laws of war. The same applies here: in my opinion there is no need to reach considerations of the mitzvot of settling and conquering the Land (what Rabbi Berachyahu calls “sovereignty”), for the permission is based on the mere fact that we are dealing with a collective. Of course I too could use the term “sovereignty” for my permission, but it would not be based on mitzvot; rather, on a different definition of public pikuach nefesh.

Another ramification could be applying the permission to the foreign service, administrative management of hospitals, the electric utility, and so on. For me, in circumstances where there is a danger to social functioning, all of these would also justify desecrating Shabbat. I am not sure Rabbi Berachyahu would agree (though it is possible he would).

Rabbi Shechter’s Critique

I recently saw an article describing a conference with Rabbi Berachyahu and Rabbi Yishai Shechter, where they revisited these questions. Rabbi Berachyahu presented his position, and Rabbi Shechter made two interesting comments. First, he cites that Rabbi Yisraeli permitted desecrating Shabbat for “harm to the public” even when this is not entailed by pikuach nefesh. I was not familiar with his words, and they appear, ostensibly, to be exactly what I have been saying. I do not know, however, whether his intent was to Rabbi Berachyahu’s permission (which exists only for Jews in the Land of Israel) or to the plain meaning of the expression “harm to the public,” i.e., a permission for the functioning needs of any collective (perhaps a Jewish one, but even abroad).

Further on, Rabbi Shechter adds:

This direction is novel and bold and difficult for many decisors to digest, for without grounding in the foundation of “pikuach nefesh” it is difficult to establish permission to desecrate Shabbat, and indeed there are decisors who did not agree to this. Yet in my humble opinion, it may be that if one were to propose a fascinating synthesis among the three components (harm to the public, pikuach nefesh, and sovereignty), a special basis would be formed for contending with complex cases…

One can replace the term “sovereignty” with the term “the body responsible for public order and internal security.” This term touches and is closer to pikuach nefesh. The examples of the riots during Operation Guardian of the Walls are a small window into the enormous significance of these foundations and the immense engagement, at the level of human life, of the very police presence in the public sphere. In a lesson and conversation I held with Rabbi Dichovsky, he built a significant branch out of public pikuach nefesh upon the words of R. Shlomo Zalman Auerbach regarding situations of pikuach nefesh that “are not before us.” As noted, the task placed upon the shoulders of Rabbi Rami, may he live long, is immense and important, and I hope that Torah scholars and students will partner with him.

He argues that it would have been preferable to formulate Rabbi Berachyahu’s permission as an expansion of the parameters of pikuach nefesh, such that in the public sphere we also consider distant and future pikuach nefesh. From the continuation of his words, however, it appears that he does not base this on the mitzvah of conquering the Land but on public order itself (and therefore, in his view, this would apply abroad as well), yet he insists on anchoring it in an expansion of pikuach nefesh considerations.

This debate nicely sharpens the differences between the approaches. In my view, this expansion is unnecessary and unconvincing. I think that if one is unwilling to accept that undermining public order is itself pikuach nefesh, and bases the permission only on distant pikuach nefesh considerations, it is very difficult to justify it logically. This is possible perhaps in situations where the consideration is statistical—i.e., a distant pikuach nefesh for one person threatens many people, thereby bringing us to clear pikuach nefesh. But in cases where the fear is still distant or non-existent, I do not see justification to desecrate Shabbat on account of pikuach nefesh. In my opinion, the background intuition is that undermining social order justifies desecrating Shabbat (only people are unwilling to state this plainly—unlike Rabbi Yisraeli; see also the previous column), and therefore it is both preferable and far more persuasive to place matters honestly on the table.

[1] In a note in the previous column I referred to my article, “The Problem of the Relationship between the Individual and the Collective and the ‘Defensive Shield’ Dilemma”; note 15 in the book Two Wagons and a Hot-Air Balloon; my aforementioned article in Machanechecha, and more.

[2] One can, of course, engage in fine-spun disputation about this, but it certainly strengthens and sharpens the ontological claim about the existence of collective entities.

[3] Of course, there is also public ownership regarding areas that have no private owner and belong to the public itself.