“You shall not live before anyone”: The status of the individual within the collective
In our parsha, Moses begins his farewell speech to the people, on the edge of the Land of Israel. In his words, he refers to the duty of the judges and says (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.
The judges have a duty to judge, and there is an additional duty to do so justly. They are certainly not allowed to show favoritism in court, and among other things, the prohibition against fear when passing judgment appears here: “You shall not be afraid of anyone.”
“You shall not live before anyone”
In the issue of Sanhedrin 6b, the Gemara learns from this a halakha:
[…] 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 strong, 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: You shall not be afraid of anyone.
The Gemara teaches us that a judge is prohibited from withdrawing from the case out of fear, at least after he knows where the case is headed.
The following is stated in the Book of Mitzvot by Rambam, in the Mitzvot of the 10th Reu (and in the Mitzvah of the 15th in Chinuch ):
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 Chinuch (ibid.) adds that the prohibition applies both to a judge who interprets out of fear and to a judge who deviates from the law out of fear (and in this case there is also a prohibition against biasing justice):
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].
These words were also stated in the Rambam, 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.
In Maimonides’ words here, there is a distinction between an ordinary person who comes before him to decide and appointed and permanent judges. In an ordinary person, there is a distinction between a situation where he knows where the law is headed and the situation before that. But with regard to appointed judges, this distinction is not made. They must decide every situation that comes before them, even before they know where the law is headed. This is also what the Rashba wrote in his reply to Hadiya, Ch. 2, Ch. 34 (cited in B. Y. , beginning of Ch. 12).
How far does the obligation extend?
The above-mentioned words of the Maimonides indicate that the obligation to judge and not to fear extends to situations of protection of life, meaning that the judge must judge and render a true judgment even if the lives of his household members and certainly his property are threatened. The source of these words is in 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 Sifri learns this principle from the language of the verse, which bases the obligation to judge on the verse “for judgment belongs to God,” meaning that there is an obligation towards God to judge. It seems that his purpose is to explain why the judge must sacrifice his own wealth in order to save the wealth of the Ba’ad. Regarding this, the Sifri writes that his obligation to judge is not only towards the Ba’ad but towards God. For example, he explained this in Yeshuat David 4:23 (and similarly in Shevut Ya’akov 1:13).
And what about risk to life? Where do we find an obligation to give up a life for a mitzvah that is not one of the three most serious (worship of idols, incest, and bloodshed)? The commentators are truly at a loss on this matter, and some offer explanations that take the sting out of this obligation. For example, in the glosses of Baruch Ta’am on the Tommim , he is accurate in the language of the Sifri and the Rambam, which refers to a situation in which the dayan puts a morach in his own heart, but there is no real basis for this. The Radbaz on the Rambam wrote there that the dayan is protected by the community and therefore is not in real danger of life. These explanations indicate that in a situation where there is a real danger to life, the dayan does not need to put his own life or the lives of his household in danger in order to judge.
But in Toumim itself it means 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, the Rabbis, the Rabbis, that since he knows where the law is inclined, it is forbidden to remove him due to fear in any way, and that is correct.
Therefore, the Toumim , the Bach , and the author of Shevut Yaakov , Ch. 1, 6, 13, believe that the judge does not have permission to deviate from the law in any way. Although the Bach concludes that this is only in a situation of doubt about the protection of life, if there is a clear danger to life, there is nothing that stands in the way of a Pikuach Nefesh, and it seems that this is indeed the opinion of most poskim. But the Toumim implies that it is also in a certain danger, and this also emerges from the answer of the Rashba, Ch. 2, 6, 13.
Two difficulties
How can we understand the opinions that obligate the judge to judge even in a situation of piku’n? Are the other person’s property preferable to the judge’s life? As stated, the obligation to judge is not one of the three grave offenses. From the words of the Rashba, the HaBa, and the other poskim, it follows that if the judge does not judge in such a situation, every violent person will escape the law, and society may enter into anarchy and fall prey to violent people. Such concern, even if it concerns only property, is tantamount to piku’n nefesh (a society that is crumbling and not functioning is a dead society), [1] and therefore a judge must give up his life for it. In my article, “In the Law ‘You shall not dwell before anyone’,” ( Machnich – Bulletin of the Chief Military Rabbinate 3, Summer 2008, p. 241) I showed that this obligation is imposed on every person holding a public position in a situation where yielding to a threat may lead to a profound deterioration of the social order. There I also ruled that it was permissible to use police on Shabbat, even for purposes that do not involve saving lives.
Although the identification between public corruption and Piku’n is not absolute, since in a situation of certain Piku’n, according to most poskim, there is no prohibition of “you shall not dwell,” and the dayan can depart from the law. If a situation of public corruption precludes Piku’n, we should have required him to surrender his life even in a situation of certain danger. We have not found in the halakha a distinction between certain Piku’n and providing Piku’n, both with regard to the permission to commit offenses to save life and with regard to the obligation to surrender one’s life in serious offenses (see Yuma here, pp. 1-2).
The difference between doubt and certainty: The status of the individual within the public
To understand the distinction between a state of public corruption and a state of public corruption, we must consider the status of a person in a position within the public that he serves. There are individualist views that see the individual as the ultimate goal, and the public and its institutions exist only to serve him. According to these views, it is difficult to accept an obligation to give one’s life even in the face of doubt about public corruption. On the other hand, there are fascist views that see the individual as a member who is enslaved to the collective to which he belongs (the public), and the public’s interest completely nullifies his status as an individual. According to these views, it is reasonable for a person in a position to have to give one’s life even in the face of doubt about public corruption. Above, we saw that there are such and such views in halakha.
But according to the opinions that divide between certainty and doubt, it seems that the Halacha view is a combination. Every person is seen as “wearing two hats”: the individual hat of a private person and the hat of a member of a collective. [2] In such a framework of thought, it is understandable that when a person is in doubt about the danger to his life, he must take a risk in order to preserve the public fabric. But when the danger to his life is certain, we do not enslave his individual hat to his collective hat, and therefore we do not require him to completely abolish himself for the benefit of the public interest. [3]
A similar division exists regarding a soldier during war. The poskim bring to the halakhah that a person is prohibited from giving up his life to save his friend from danger (although see in Yerushalmi that the HaGhamiyy quoted in Pa’a from a murderer who disagrees on this, but this is a single opinion). 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 this 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. The public is in danger and the soldier is a member of this collective, and therefore he must risk his life to save the public (it should be remembered that this is also his own salvation within the entire public). [4]
This is about risking one’s life. What about a situation in which the soldier is supposed to go on a mission in which he is certain to die? The case of the paratroopers in the Battle of Mitla in Operation Kadesh (1957) is well known, who were ambushed by the Egyptians. There, a soldier was required to drive a jeep to draw Egyptian fire towards him in order to discover the location of the enemy. It was a suicide mission, and soldier Yehuda Ken Dror set out to carry it out. He was wounded and died of his wounds about two months later, and later received the Medal of Valor for it. There is debate as to whether the battalion commander ordered him to go on the mission or whether he volunteered, but in IDF ethics today it is accepted that it is not possible to give a soldier an order to go on such a mission. This means that a soldier is indeed required to risk his life in battle, but it is not possible to demand that he give his life. This is precisely the distinction I presented here regarding judges and other public officials, and as I explained, it is probably based on a complex perception of the relationship between the individual and the collective to which he belongs.
[1] I would like to emphasize that I do not mean here an indirect fear for a person’s life, as is usually explained. The very disintegration of society is a state of self-preservation.
[2] I discussed this in my article “The Problem of the Relationship Between the Individual and the Whole and the Defensive Wall Dilemma”, Tzohar 14, April 2003, p. 61.
[3] In my article, “You Shall Not Dwell,” I discussed a similar consideration regarding a general who was exiled to a city of refuge.
[4] Otherwise, there is no obligation on a person to sacrifice their life to save the life of another person. In passing, I would add that the sacrifice of a soldier to save the lives of his fellow soldiers in a place where this is not required for the purpose of the mission, that is, to save the public (this is apparently the case of the late Roy Klein), is apparently halachically prohibited.
