Contemporary Aspects of the Problem of the Individual and the Collective, and the 'Defensive Shield' Dilemma

Tzohar – 5763

The claim that the collective, or the public, is not merely a fictive aggregation of the individuals bound up within it, but rather an independent and existing entity, is ancient and trite (and also true, of course).[1] However, this principle has contemporary implications to which people sometimes do not pay attention. There is a tendency to treat this 'inquiry' (in the yeshiva sense) into the nature of the collective as a dichotomous 'inquiry,' that is, as though we must consistently decide in favor of one of its two sides.

As an illustrative exercise, one may examine issue 13 of 'Tzohar,' in which several aspects arose—very different from one another—all of which touch on the relation between the individual and the collective, and on the dichotomies of this 'inquiry.' This phenomenon creates the need to point specifically to this context that characterizes this cluster of discussions.

The article is divided into four chapters. In the first chapter of the article (which is almost journalistic in character), I will point to the range of implications of this topic for the problems discussed in the previous issue, and I will try briefly to clarify the roots of the dilemmas. This part is intended mainly to convince the reader that this discussion lies at the foundation of a number of contemporary issues. Then, in the second and third chapters of the article, an additional aspect will be discussed, concerning the moral dilemma that arose in Jenin during Operation 'Defensive Shield,' to which the distinction proposed here can be applied. Finally, in the fourth chapter, I will propose preliminary lines for examining the Torah's attitude to public responsibility and collective punishment.

A. A Review of Issue 13 of 'Tzohar' from the Perspective of Individual-Collective Relations

Yaakov Kurzman, in his article 'The Religious Court—Is It a Corporation?', points to conceptions of the religious court as an independent legal entity detached from the judges who compose it (in modern legal language: a 'corporation'). The principle itself is certainly well known in Jewish thought, but his main claim is that it ought to have halakhic-juridical expression as well.

As for the religious court, I am not sure that the proofs presented in the article are sufficiently solid.[2] In any event, it seems to me that the principle that the collective constitutes an independent entity, even in legal terms, does not require a discussion of the status of a religious court in order to be proven.[3]

At the end of his remarks, Kurzman also notes a danger in viewing a corporation as a legal entity, since this can lead the corporation's owners to evade legal responsibility for their actions (in lawyers' language: the 'corporate veil'). He therefore proposes that this view be examined cautiously.

This remark is problematic. If Jewish law really does view a corporation as an independent legal entity, one cannot ignore that, even if the view involves danger. Perhaps one can enact legislation that overrides this law, but one cannot interpret differently the claim that sees the corporation as a legal entity merely because dangers are embedded in it.

It therefore seems to me that it would be more correct to say that the corporate aspect is not exclusive. Every corporation has two faces: a collective face and a private face. In every situation we must weigh the question of which of its two faces we ought to address. If we translate this reservation from the legal plane back into the metaphysical one, we would say that every collective has both faces together. Sometimes we must adopt both of them, and sometimes only one.

Rabbi Ariel's responsum in that same issue deals with the olive harvest in areas under Palestinian ownership. It seems to me that a reasonable interpretation of Rabbi Ariel's claim is that one must distinguish between a collective's sovereignty over territory and the legal-property ownership of individuals over territory. The Jewish people have sovereignty over the land, but not necessarily ownership. Therefore, perhaps one may impair Palestinian sovereignty over territory, but not their private ownership (for stealing from a gentile is prohibited).[4]

Here one sees a confrontation between a conception that sees the collective as all-important, and therefore translates the struggle over sovereignty into a blanket permission to harm private ownership as well, and a conception that calls on us to take account also of the private aspects of the members of the collective. As in the previous example, it seems that we must take both aspects into account together: the collective and the private. In the case at hand, according to Rabbi Ariel, we must adopt specifically the private perspective.

In another article, Rabbi Yissachar Heyman stresses the need to shift the focus of study in the hesder yeshivot, and not to require students to concentrate specifically on analytical study. His argument is that the yeshiva should be intended for the broader public, and not specifically for the few who will continue studying over the long term.

This proposal does not seem correct to me, for various reasons. But here I want once again to point to the dilemma between attending to certain individuals and attending to the collective. Again, the problem has two faces, and we must decide whether to relate to the individuals or to the collective.[5]

Rabbi Feuerstein's article argues that we should not create a Religious Zionist movement for return to observance, since this could harm the fabric of dialogue that is beginning to emerge among the different sectors of our society.

First, I should note that I disagree with him completely on most of his claims.[6] But beyond the disagreements, here I again wish to focus on the aspect of collective and individual, which emerges here with great force. Religious Zionism has a tendency to attack problems 'from above,' from the collective to the individuals. The goals for which this public acts are dialogue among different sectors, influence on the laws of the state, the character of the public sphere, and the like.

By contrast, in Haredi society, which founded the movements of return to observance, the main focus is on the individuals who compose the collective. Every Jew who returns to observance is an achievement. Most of that public displays readiness and devotion to engage in outreach in the most personal way possible. In the eyes of this public, the public sphere is nothing but the sum of the individuals who compose it. There is no goal in changing the law book as such, except as a means of influencing individuals.

Here again there is a dilemma between collective work and private work. It seems to me that here I find myself, in light of all the recent voices supporting a Religious Zionist outreach movement, actually leaning toward the Haredi side. In my view, the collective approach fails all along the way. As noted, we have almost no influence on the character of the state, not even in proportion to our relative share of the population. And for the sake of this we are asked to give up attempts to bring our brothers back to His service. There seems to be a measure of blindness and pathos in this attachment to a path that fails time after time. We must be courageous and draw the conclusions, at least on the tactical plane, if not beyond that.

Finally, Rabbi Ari Shvat's response deals only with this very point, and therefore it is the clearest example of a discussion of relations between the individual and the collective. He calls on worthy Jewish women to involve themselves only in the needs of the collective and to abandon their personal aspiration for private spiritual elevation in fear of Heaven. One of my main claims against him is that every person also has a private side and is not merely part of the public, and it seems that Rabbi Shvat tends to ignore this (at least with respect to women).[7]

Thus far the 'journalistic' part of the article. Through a review of a single issue of 'Tzohar,' we have tried to show the contemporary relevance of clarifying the relation between the individual and the collective. We now move to the second chapter, where we will try to apply these principles to a 'burning' topic that, for some reason, has still not received proper halakhic treatment.

B. The Jenin Dilemma

In issue 11 of 'Tzohar,' Rabbi Cherlow raises the dilemma of harming innocents in the course of battle. The considerations there are mainly moral, and the discussion takes place chiefly on the principled plane, not as a precise halakhic analysis. Here I will try to offer conclusions, at least on the halakhic plane. If these remarks prompt those greater than I to express their views on this grave topic, that alone will suffice.

I wish to discuss the dilemma faced by IDF forces and the Government of Israel in Jenin. The terrorists had barricaded themselves within a small, densely built urban area, and it was clear that there were civilians there, including infants. The dilemma was whether to enter the area on the ground, thereby risking soldiers' lives, or to bomb the area from above (after warnings and giving time for an orderly evacuation for anyone who wished to leave), thereby risking the lives of civilians.

This is a question with distinctly halakhic aspects (though not only such aspects), and for some reason it has still not received serious halakhic clarification. Soldiers from our yeshivot faced, and still face in various ways, such dilemmas, and it seems to me that we are obligated to give them an answer to their doubts.

The 'thundering' silence of the rabbinic establishment on this issue is interpreted on the ground in two opposing ways:

1. It is obvious that one ought to have bombed from above, but for some reason this is not said aloud.
2. The decision is entrusted to the military-political echelon. This too for two reasons:

• Essentially: the decision really depends solely on the discretion of the military-political echelon.
• Technically: in practice, only the decision-making echelon had to decide; not the field level.

With respect to the first point, it seems to me that even if the decision is indeed obvious, it is of great importance to hear, in a clear and ringing voice, the Torah's and Jewish law's position on this topic, if only in order to clarify that there is a Torah perspective in such an area.

As for the second point, see my article in 'Tzohar' 7. The conclusion there was that there are halakhic and value-laden considerations here, and one cannot treat such a decision as a purely military-political decision. The military-political echelon is not entrusted with our values, and it is often driven by considerations rooted in another kind of morality, if in morality at all. Even if we leave it in the hands of those echelons, this must be said in a clear voice.

With respect to the second point, although in the case under discussion the decision was taken by the highest levels of the army and the government, if the correct halakhic ruling were that one must bomb from above and that there is no room to endanger soldiers' lives, there would be reason to consider refusal of orders in such a case (this is no less than an order to desecrate the Sabbath; and after all, the Sabbath itself is set aside for life-saving). This already is a decision that touches the field itself (though one must of course also consider aspects of preserving military cohesion).

A well-known halakhic responsum that deals with a related issue is Rabbi Yisraeli's responsum, of blessed memory (following the Kibya operation), regarding the permission to carry out a reprisal action despite the fear of harming innocents.[8]

Rabbi Yisraeli concludes in that responsum that on the individual plane it is forbidden to carry out an action that will harm innocent lives (one may not save oneself through another person's life; and he also writes there that with a gentile this is even more severe, see there). However, his conclusion is that there is a permission because of the laws of war.

In our case, however, the question is somewhat different: the operation will be successfully carried out in any event. The question is whether to endanger soldiers' lives, or to risk harming innocents. Thus the direct goals of the war will in any case be achieved, and what is at issue is the lives of several soldiers. It is therefore not clear that the wartime permissions are relevant here (though it is certainly possible that they are). It is not entirely clear, at least to me, that every action in which the army engages has the halakhic status of war, permitting the sweeping permissions that a state of war grants.

Beyond that, Rabbi Yisraeli's conclusion is that a lone individual pursued by the men of Jenin would not be able to bomb the city from above and risk harming innocents; he would have to fight those seeking his life or die (see Gur Aryeh on Parashat Vayishlach, where Simeon and Levi are said to have killed all the inhabitants of Shechem by the laws of war, although they were merely a private family; this still requires further study).

If that is indeed the conclusion of Jewish law, we must bow our heads. But I will try here to suggest and substantiate a different conclusion, which in my view accords better with intuition (at least with mine). At this point, the considerations of collective and individual discussed above enter the picture. Let the reader see and judge.

The source of the matter is the dispute between Rashi and Tosafot in Bava Kamma 60b regarding one who saves himself with another person's property. In the Talmudic passage there, King David asks whether he may burn Israelite grain in order to save the lives of his soldiers. As a matter of Jewish law, one may not save oneself with another person's property. According to Rashi, this is forbidden in the literal sense (one must accept death rather than transgress theft). According to Tosafot and other authorities, one may save oneself, but must pay for the stack that was burned.

The accepted explanation of Rashi's view, following the remarks of Rabbi Shimon Shkop in Sha'arei Yosher, Gate 5, is that the prohibition of theft is exceptional among Torah prohibitions. The prohibition against laying hands on another's property does not stem from the prohibition of theft; rather, the prohibition of theft stems from the prohibition against laying hands on another's property. Accordingly, although the prohibition of theft is set aside in the face of life-saving, the legal prohibition on taking another's property remains (and this exists even with respect to a gentile, despite the absence of the verse 'do not steal,' as Rabbi Shimon Shkop writes there).

There are several medieval authorities who say explicitly that the permission to save oneself applies only because the owner himself would have had to save with his property, and therefore the property is, as it were, encumbered to rescue. And there are medieval authorities from whom it appears that if he pays, there is not really a violation of 'do not steal' here, at least not on the legal plane. If so, even according to the other medieval authorities the basic understanding is like Rashi's: if there is a legal prohibition, then it is not overridden by life-saving.

Rabbi Yisraeli argues there that with a gentile the matter is more severe, since he is not commanded at all to surrender his property for the rescue of Jews, and presumably he is also not interested in doing so.

In light of all this, where life is concerned it would seem that all agree that one may not save oneself through another person's life. Here it is clear that the other person's life is not encumbered for this purpose, and one also cannot pay him back his life.[9] In the simple sense, this is precisely the law of martyrdom regarding murder ('who says your blood is redder?').

In light of the foregoing, it seems clear that even with a gentile, where the prohibition on killing him may be lighter, there is no room to permit saving oneself through his life, according to all opinions. Here too, the prohibition is not because of the verse 'do not murder'; rather, the prohibition expressed by 'do not murder' stems from this principle.

If so, the conclusion is that there are two levels of difficulty in saving oneself through another person's life: the plane of prohibition (which in the case of a Jew may be more severe), and the general legal plane (which may perhaps be more severe in the case of a gentile).

Now, against all the foregoing, there is the law of the pursuer. There we see that one life is indeed set aside before another, and there is an obligation to kill the pursuer in order to save the pursued.

In light of what was said above, it follows that two novelties have been stated here: 1. In such a case there is no prohibition of murder. 2. The pursuer's life is encumbered for saving the pursued (and therefore one is not taking something that is not his on the legal plane).

A straightforward proof of the existence of the second plane is that the rule of kim lei bid-rabba minei applies to a pursuer, and it is thus evident that there is also a kind of 'punishment' for the pursuit, that his blood is permitted like water, and not merely that the prohibition of murder has been waived regarding him. See Afikei Yam, vol. 2, sec. 40, at length.

It should be noted that we find the same also with property. In Maimonides, Laws of Wounding and Damage, he brings a law of 'pursuing property' in the case of a heavy load that threatens to sink a ship at sea. Maimonides rules that in such a case the property is a pursuer, and there is not even an obligation to pay for damaging that property.

See there the Ra'avad, who objects, and the Kesef Mishneh and Maggid Mishneh, who point to Laws of Theft and Lost Property 12:14, where Maimonides brings the baraita dealing with cargo during a storm at sea; there Maimonides wrote that there is an obligation to pay for the property that was thrown overboard.

It seems that the difference is that in the laws of theft we are dealing with property that is not a pursuer, since it is the storm that threatens to sink the ship, and therefore this is a case of saving oneself with another person's property. Therefore the property is not encumbered for rescue (according to most of the medieval authorities, and not like Rashi). In the laws of wounding and damage, by contrast, the property itself is the pursuer (without a storm), and therefore here it itself is encumbered for rescuing the pursued. Hence in this case it is permitted to throw it into the sea without paying.

This is the essence of the difference between the law of the pursuer and the law of saving oneself with another person's property. Pursuit adds an additional law: that the pursuer (whether in his property or in his life) is encumbered for the rescue of the pursued. It should be noted that the very fact that there can be pursuit through property, which lacks intelligence, shows that there is a novelty here: the property itself is encumbered for rescue, and not merely that it is 'liable to punishment.'[10]

In the case of Jenin there were several levels of pursuers: direct and indirect helpers (see Or Sameach on Laws of Murder 1). But minors and infants are, apparently, not pursuers; rather, they fall into the category of saving oneself at another person's expense. If so, it would seem forbidden to save ourselves through their lives. As stated, Rabbi Yisraeli moves to ruling on the public plane, and permits it only because of the laws of war. Above we noted that this is a problematic approach.

C. The Collective Pursuer

Despite everything said thus far, it seems to me that in such a case it is permitted to bomb from above, even without the laws of war. Until now we assumed that with respect to innocents (at least infants) our status is that of one who saves himself through another person's life (and not that of a pursuer), and this is forbidden according to all opinions. But in fact we are not dealing here with a situation of one individual pursuing another individual; rather, it is a public of pursuers. If so, there is here a collective pursuer. In such a situation, even infants are subject to the laws of the pursuer by virtue of their belonging to the pursuing collective.

What is proposed here is the definition of a concept of 'collective pursuer.' When a people pursues someone in order to kill him, we do not relate to it as to a collection of individuals, among whom one can distinguish who is a pursuer and who is not. There is here a collective that is pursuing us in order to kill us. According to this, harming part of the pursuing public is not a case of saving oneself through another person's life, but actual harm to a pursuer. Saving oneself through another person's life is said only regarding a neutral third party who is unrelated to the pursuit, and there one life is not set aside for another. But, as noted above, the pursuer's blood is permitted, and therefore his life is encumbered for saving the life of the pursued.

It seems possible to bring support for this from the Talmud in Bava Kamma 60b mentioned above. There the Talmud finds it necessary to note specifically that the barley stacks about which King David asks were those of Israelites (the barley stacks were those of Israelites). One cannot say that this is because the prohibition against stealing from a gentile is lighter, for the issue is the legal prohibition, and that exists with a gentile as well (as Rabbi Shimon Shkop states there explicitly). And indeed Rabbi Yisraeli writes that saving oneself with a gentile's property is even more severe than saving oneself with an Israelite's property.

Therefore it seems that the Talmud there should be interpreted to mean that had there been here a stack belonging to Philistines, it would have been obvious that it was permitted to burn it—not because the prohibition is lighter, but because the property of Philistines is permitted in such a pursuit, by the law of the 'collective pursuer.' The Philistine people pursue David, not a collection of individuals. And if even harming the bodies of innocents is permitted, then all the more so their property. In such a situation, one who saves himself through another person's property is not liable to pay, because here we are dealing with the law of the pursuer and not with the law of saving oneself with another person's property (as in the case of pursuing cargo in Laws of Wounding and Damage).

According to this, a very significant practical implication emerges: even for monetary damage caused by our soldiers to Palestinian civilians during the fighting, there is, from the outset of the law, no obligation to compensate them. Had this been a case of saving oneself with another person's property, then as a matter of Jewish law it would have been permitted to take it, but there would still have been an obligation of payment. But if our analysis is correct, and the obligation here falls under the law of the pursuer, then their property is encumbered for saving our lives.

As noted, in the incident of Shechem, Simeon and Levi killed all the inhabitants of the city because 'wanted men' were among them (see Or HaChaim there, and the other commentators; this is not the place to elaborate). As stated, the Maharal in Gur Aryeh explains this by the law of war, even though Jacob's family was just a single family and not a nation (especially since Jacob himself, the head of the family, did not declare war and apparently did not agree to it either). It may be that his intention accords with what we are saying: where there is a pursuing collective, this need not depend on the formal law of war.

Let us add several remarks here:

1. According to this proposal, we have no need for the laws of war. If the pursuer is a public, then the pursued—even if he is an individual—may use harm to part of the pursuing public in order to save himself. This applies both to their bodies and to their property (as we proved above from the Talmud in Bava Kamma). This is contrary to Rabbi Yisraeli's conclusion.
2. There is also a practical difference in the stricter direction between our proposal and Rabbi Yisraeli's ruling. One who does not belong to the 'pursuing collective' (a tourist, or someone kidnapped there against his will) would be forbidden to kill. This remains true even if he is an actual pursuer without intention (analogous to a fetus whose head has emerged), and certainly if he merely interferes with the rescue (that is, with killing the wanted men), which is a case of saving oneself through another person's life, as in our situation. Under the laws of war, it seems clear that even tourists or hostages may be killed, for that is a legitimate decision of a king in wartime.
3. As a conceptual aside in clarifying the laws of collectives, one may discuss whether a Palestinian who damaged property (at least during the operation) would enjoy the exemption of kim lei bid-rabba minei. Even if he is part of a public to all of which the law of pursuer applies, there is still room to obligate him, because each individual is also judged as an individual and not only as part of the public. According to this, only the public as a whole that caused damage would be exempt.[11]
4. There is another important reservation to our argument, and here too one can see another implication of the above discussion of conceptions of collective and individual. Clearly there is no sweeping permission here to kill everyone who belongs to the pursuing collective. If there is no need to kill the innocents, it is gravely forbidden to kill them, for two reasons:

• Formally: this is analogous to a case where one can save the pursued by injuring only one of the pursuer's limbs. In our case, one can save the pursued through only part of the limbs of the collective pursuer. Admittedly, according to the Rivash and those who follow him, this would be permitted to the pursued himself, since for the pursued himself there is no rule of being required to save by means of only one limb.
• Substantively: every individual is also judged as an individual and not only as part of a collective. Therefore the prohibition of murder applies to him by virtue of his status as an individual. This was not permitted where there is no necessity for it, and anyone who kills him is a shedder of blood. Here it seems simple that this would be forbidden even according to the Rivash mentioned above. This is the practical difference between the explanations, and it depends on the conceptions of collective and individual that we saw above. On the one hand, every person is judged as an individual; on the other hand, he is also judged as part of the collective (which in this case is pursuing us). See above in all the examples we brought from the aforementioned issue of 'Tzohar.'

An important remark is that, of course, even if an individual is permitted to act in this way, there is room for public and halakhic criticism of his act, and therefore there is certainly room to punish him if his decision does not seem reasonable in our eyes.

One must also discuss, even if we are correct in these claims, whether one may volunteer and act beyond the letter of the law by entering the area on the ground and thereby risking our soldiers' lives. The reasons could be moral, international law, desecration or sanctification of God's name, and the like. The question is also who is authorized to do this. Must one seek volunteers from among the soldiers, and perhaps also permission from the family (certainly in the case of a married reservist, there is room to require permission—or at least consultation—with his wife and children)? Is the command authorized to order this by military directive? This is not the place to elaborate.

One must also discuss whether, in light of such a conception, there is room for preventive collective punishment. For example, are we permitted to punish entire Palestinian publics in order to prevent the harmful activity of individuals among them? I should note that, generally speaking, such a mode of action (which, unfortunately, we have not infrequently employed in the past) is neither moral nor effective. The question here is principled: if we decide in a certain situation that this is the required mode of action, are we permitted to do so? The issue here is how direct the influence of the punishment on future results must be in order to justify such an action.

D. Preliminary Notes on the Topic of Collective Punishment

One of the clearest expressions of the relation between individual and public is found in Maimonides' laws of repentance, where he states that on the days of judgment each year, every single individual is judged, as are the city, the state, and the whole world. This is a clear expression of the dual aspect in the personality of each of us. Every person is judged as a private entity, but also as part of a collective. Someone may be righteous in his private judgment and guilty in his collective judgment.

It should be noted that in Maimonides both of these aspects appear together. There is no possibility of relating only to one of them. Those who hold the 'private' approach, as well as those who hold the general approach ('state-centered,' so to speak), apparently do not present the whole picture. This was the root of the discussion in all the examples I brought from the previous issue of 'Tzohar.'

It appears, in the simple sense, that judgment upon a person as part of the state is not necessarily connected to his direct guilt, or even his indirect guilt, in shaping its character. Sometimes the very fact that he is part of that state is sufficient cause to punish him for defects in the way it conducts itself. Here he is punished as part of the flawed collective organism. When the state suffers for its defects, all its citizens suffer as well. This is the state of affairs we saw above in the law of the collective pursuer.

There are several levels of such public-social obligation, and they find expression in duties and punishments for failure to fulfill them. There are several approaches here that we will not discuss. My purpose is to point to the very existence of this hierarchy.

1. There is a person who clothes his fellow in a forbidden mixed-fiber garment, or who actively renders him impure. In such a case, Maimonides (Kilayim 10:31) rules that when the wearer is inadvertent and the dresser acts intentionally, the dresser receives lashes. It should be noted that there are no lashes for the prohibition of 'do not place a stumbling block,' and it is clear that Maimonides sees the dresser as one who transgressed the prohibition of kilayim itself. Most commentators understand Maimonides' words as a general principle in Torah law, and not as a special rule in the laws of kilayim alone (and impurity and naziriteship); this is not the place to elaborate.
2. There is a person who causes his fellow to stumble into a prohibition in a case of 'two sides of the river' (that is, without him the other person could not have committed the transgression). This person violates 'do not place a stumbling block.' Rashi, at the beginning of Parashat Mattot, addresses a husband who tells his wife that he annulled her vows, while in truth he did not do so. He determines there that one who causes his fellow to transgress takes his place with respect to punishment. Presumably this refers to heavenly punishments, since here the husband's responsibility is more indirect.
3. There is a person who assists his fellow in committing a prohibition in a case of 'one side of the river.' This is what is called an assistant, whose prohibition, if there is one at all, is rabbinic.
4. There is a person who did not prevent his fellow from transgressing a prohibition. He violates the positive commandment of 'you shall surely rebuke.'
5. And there is a person who did not rebuke him after the fact. He too violated 'you shall surely rebuke.'
6. There is a final level, that of pure responsibility, in which a person is punished for his fellow's sins even though he had no part in them in any of the foregoing ways. Here the responsibility, and in its wake the punishment, arise from the very fact that someone connected to the society of which he himself is a member sins. This topic appears in the passage in Shevuot 39a that will be brought immediately.[12]

All of these are expressions, on one level or another, of the law of mutual responsibility. The very fact that mutual responsibility yields not only the obligation to rebuke and the punishment for failing to rebuke, but also the ability to discharge another person's obligation (in blessings and the like), teaches that behind these laws stands a metaphysical conception that sees a web of connections among the individuals who make up the collective. In light of such a conception, it is quite clear that the collective can be seen as an entity that exists in its own right, beyond the individuals who compose it.

A clear expression of these distinctions (and especially of the sixth level, that of 'pure responsibility') is found in the Talmud in Shevuot 39a, which states that for a vain or false oath the family, and the whole collective, are punished as well:

There is no family that has a tax extortionist in it that is not entirely tax extortionists, and none that has a bandit in it that is not entirely bandits, because they cover for him. (There is no family containing a tax extortionist in which they are not all tax extortionists, and no family containing a bandit in which they are not all bandits, because they cover for him.)

The Talmud there contrasts this with punishment of one who could have protested and did not, under the ordinary law of mutual responsibility. That is, we are not speaking here of guilt for failure to protest or prevent. The expression 'because they cover for him' in that Talmudic passage does not mean any direct guilt whatsoever. It is a collective punishment for the mere fact that they cover for him through their existence and their association with him. The passage there elaborates on these distinctions, and a discussion of collective punishment requires a more detailed examination of what emerges from that passage, but this is not the place to elaborate.

It should be noted that there the discussion concerns collective punishment only in heavenly punishments. Here we are proposing an expression of this in human law. The reason is that what is at issue here is not punishment in the full sense of the word, but rather the question of who stands first in responsibility for the acts of the Palestinian terrorists. A discussion of collective punishment would determine a punishment for all Palestinians as such. Here the discussion is more limited: who is to pay the price—IDF soldiers, or innocent Palestinian civilians? It seems to me that for this minimalist aspect one can indeed learn from the Talmud in Shevuot, which deals with heavenly law, even with respect to our considerations as human beings.[13]

There is an automatic shock at acts of collective punishment, and certainly at the killing of innocents. But it should be noted that here the alternative is that our soldiers be killed—even they are innocents—and there is no reason that they should be killed because of the acts of the terrorists. At least when we are choosing between these two alternatives, one may adopt the approach of collective punishment even on a purely moral plane.

The very automatic definition of the individuals as innocent is a modern definition, drawn from the moral conception of the West. It tends to regard the individual as the fundamental entity, and the collective as a fiction (or an instrument). According to this way of looking, there are terrorists and there are innocents, and one may not harm innocents because of the terrorists' acts. As we have seen, the Torah's definition is that a public is a legal entity, and even an entity that bears punishment; therefore, in some cases there is room to harm parts of the collective in order to save oneself from the harm done by another part of it.

It seems that this is the basis for the seemingly puzzling correlation whereby those identified with the 'left' tend to support a ground incursion in order not to risk innocent lives, whereas those identified with the 'right' tend to support an action that may harm innocent Palestinian lives. The assumption is that neither side is less sensitive to human life—whether that of our soldiers or that of Palestinians. If so, there is here a dilemma whose root is metaphysical: whether to view the pursuer as a collective or as an individual.[14]

I should note that Rabbi Cherlow too, in the above-mentioned article ('Tzohar' 11), tries to locate guilt in the public as part of the possible justification for harming it. For him as well there is a simple assumption that one cannot harm a person without that person's own personal guilt.

As stated, in my view, by reason and by Scripture, this is not so. By reason, it is clear that one may not simply harm some random innocent person. But here the discussion concerns a dilemma between risking the lives of our soldiers and harming the lives of innocent Palestinian civilians. It seems to me that even morally, collective responsibility should find expression here, if only in the sense that if someone must bear responsibility for the criminal behavior of terrorists, it is not our soldiers; rather, with all the sorrow and pain, the Palestinian civilians take precedence over them in bearing that burden.

And as for Scripture, in this chapter we have seen that collective punishment is not without foundation in the Torah's outlook. True, it appears chiefly in heavenly punishments, but it seems to me that one may adopt this stance with respect to the minimalist dilemma presented here. If the Holy One, blessed be He, harms even one who is not guilty because of his mere belonging to a criminal collective, then we can at least argue that one who belongs to a 'pursuing collective' stands before the person fighting a war of self-defense against that collective in responsibility for our rescue.

[1] The main lines of the principled analysis can also be found in my book Two Wagons and a Hot-Air Balloon, especially in the fourth section, chapter 2, and in note 15 there.

[2] An important example in this context is the duty of a judge who erred, in certain cases, to pay out of his own pocket. There is never any obligation on the religious court (=the collective body) to pay the litigant from public funds. If there is such a halakhic obligation, it is imposed only on the judge. It seems to me that in the expression 'pay out of his own pocket' there is a strong hint against even entertaining the possibility of charging the public treasury.

Most of the proofs brought by Kurzman in his article do not seem compelling to me. The fact that the minority in the religious court is annexed to the majority view (just as a prohibited minority in a mixture becomes permitted) does not necessarily mean that there is here an independent legal entity. Especially since even in the laws of majority that principle is not agreed upon (it is well known that the Rashba disputes the Rosh cited in the article, and attributes the nullification of the minority in a mixture to the rule of following the majority. The same is true in the well-known Mordechai at the beginning of tractate Sanhedrin, which speaks of the judges' voice as having 'separated' from the court and therefore being nullified by the majority, and this is not the place to elaborate).

The conclusion that emerges regarding the religious court is that the minority is treated as nonexistent (as Tosafot, s.v. 'kamashma lan,' Bava Kamma 27b, cited there in note 11). Thus there are three judges, but only one final opinion. Yet this does not necessarily create a different legal entity.

Regarding one who hands his notes over to the religious court, Kurzman argues that we see that the court is not the creditor of the debt, and therefore the debt is not remitted in the Sabbatical year. Here too this is not a necessary conclusion. The debt is not remitted because the judges of the court are not the debtor's true creditors. In this respect, handing one's notes over to the religious court is very similar to a creditor holding collateral, which appears in that same Mishnah in Shevi'it (10:2) as a debt that is not remitted. According to this reasoning, however, it would seem that one could hand the debt even to a third party (see notes 20 and 21 in his article there).

And in my view, his subsequent proofs are likewise not necessary, and this is not the place to elaborate.

Generally speaking, I would say that one must distinguish between two different claims: 1. There is a legal 'corporate veil' that distinguishes between the shareholders and the corporation they own. 2. A collection of shareholders can constitute a public, which in itself forms an independent and existing entity, and not merely partners. As stated, the second claim is a straightforward halakhic claim. Yet one may still say that the first claim is not correct. We might say that perhaps there is ownership of the corporation's property by a public, but still one cannot detach the corporation from the owning public. It seems to me that in the article under discussion these two claims are not sufficiently distinguished, and this is not the place to elaborate.

[3] See note 15 in my above-mentioned book. I later saw an article by Prof. Rakover in Techumin 16 on this topic. He discusses there only the Jewish people as a whole, and not every collective as such.

[4] Such confusion often exists as well in discussions of the injustice caused to the Palestinians in the War of Independence, expulsions, and the like. Many argue that we did not expel them. They fled in the hope of returning and gaining our property and our lands. Even if that is true, one must note that what stands at the center of the discussion is the sovereignty we tried to impose over their heads, and not the theft of lands from their owners. In relation to that, the claim cannot be that we did not expel them, but rather that establishing the 'sovereign umbrella' over their heads is grounded in the rights the Jewish people have over the totality of the land, on the plane of sovereignty. The plane of private ownership must be examined on its own merits.

[5] In broader terms, it seems to me that even the methodology of his claim is incorrect. It is not right to compare the number of students to whom the present approach is suited. That itself is a 'private' and not a 'collective' perspective, and this is not the place to elaborate.

[6] Most of the 'dialogues' between the different publics are, in my view, barren and technical dialogues. In my view, the influence of the Religious-Zionist public on the character of the state is completely negligible, and therefore there is nothing to lose in that respect. Nor do I see any necessary connection between a movement of return to observance and seclusion or the abandonment of positive modern values; therefore, in my view, the second part of Rabbi Feuerstein's article does not touch the issue.

The repeatedly voiced claim about the condescension involved in trying to bring someone back to observance also seems puzzling to me. To say that someone is mistaken does not mean that he is stupid. Why can I not tell someone, in the most respectful yet direct way, that I wish to bring him back to observance by persuasion? If this is perceived as condescension (and indeed, many times it is), then we ought to try to clarify this point. Hidden here is a postmodern stance that does not believe in truths or in the possibility of arguing about them at all. In my view, it would be better for us to mobilize to fight this puzzling approach (for example by pointing to the fear and withdrawal such a view expresses, contrary to the prevailing secular ethos), rather than try to persuade ourselves of it (see my above-mentioned book, especially the fourth section).

[7] I do not agree with Dr. Wolowelsky's positions either. But, as is well known, one can base a correct position on incorrect reasons, and this is not the place to elaborate.

[8] See Amud HaYemini, sec. 16, and in summary in vol. 3 of the collection BeTzomet HaTorah VeHaMedinah.

[9] One should also discuss here the view of the decisors (see Kesef Mishneh on Laws of Murder 1:14 and others) who obligate a person to risk his own life in order to save his fellow when the danger is not certain. Even according to those decisors, it seems that the second person's life is not encumbered for saving my life.

[10] Even within the law of the pursuer there are different levels: an indirect pursuer, an unintentional pursuer, and the like (see Rabbi Yisraeli there). In Maimonides, Laws of Murder 1, he speaks about a fetus: when it is still inside, it is called a pursuer and it is permitted to kill it in order to save the mother. But once it has brought out its head, one life is not set aside for another. The question raised against him is that if it is a pursuer, it should be permitted to kill it even if it is already a full human being.

The explanation must be that it is a pursuer without intention (and in the Talmud: Heaven is pursuing him). In such a case, there is no permission with respect to the prohibition of murder. Therefore, in the case of a fetus, where the prohibition is not so severe, it is permitted to kill it. But once it has brought out its head, then although its life is encumbered for the rescue, the prohibition of murder has not lapsed (it lapses only in the case of an intentional pursuer).

The significance of Maimonides' distinction, according to our analysis, is this: in monetary law we found two planes of discussion, the legal and the prohibitory. But according to Rabbi Shimon Shkop they cannot be separated. That is, there is no prohibition of 'do not steal' without a legal determination of whose the money is (and in this way the well-known difficulty of Mahari ibn Hassan is resolved: why should we not be stringent in a case of monetary doubt, rather than rule leniently for the defendant?). It cannot be that the money is legally mine and yet I would transgress 'do not steal.' The opposite situation is possible, for example in the case of a gentile: the money is legally his, but there is no prohibition of 'do not steal.'

By contrast, with regard to life we again see that there are two planes of discussion, but here they are two separate laws, and each can appear without the other. In the case of a fetus whose head has emerged, its life is encumbered for rescuing the pursued mother, yet the prohibition of murder has not been waived.

The reason for this is that the prohibition of theft is an interpersonal prohibition, and therefore the monetary determination establishes the prohibition. But in murder there is also a dimension between man and God, and therefore the prohibition exists even without the interpersonal dimension.

This also explains why the medieval authorities disagreed with Rashi in monetary law and with Maimonides in the case of pursuit involving life (see Afikei Yam there). It is clear that according to everyone there are two such planes. The dispute is not about whether there are two planes, but about whether they depend on one another, and this is not the place to elaborate further.

[11] This is truly an example of the danger of the 'corporate veil' raised by Kurzman, and of my discussion of it above.

[12] Perhaps one can see such a dimension in the law of the idolatrous city, at least according to some views, but the matter is not simple and requires fundamental clarification, and this is not the place to elaborate.

[13] One could have explained this by saying that the Talmud brings this principle in order to teach us something. If it were not relevant to human considerations, but only to heavenly law, there would have been no reason to bring it. One may also sharpen and discuss this interpretive principle itself, but this is not the place to elaborate.

[14] In my above-mentioned book I explained that the 'left' is rooted in an individual perspective, one that breaks the collective down into its particulars ('judgment'), whereas the 'right' is rooted in a collective perspective ('kindness'); see there at length.