Conflicting or Complementary Perspectives? (Column 76)
The Meni Eitan case raises not one question but three
The column opens with the dispute around the reserve company commander who refused to wake his soldiers for a battalion drill after a night without enough sleep, for fear of accidents on the drive home. Beyond the question whether he was right, the rabbi asks whether his commanders were right to remove him, and above all whether both answers can be yes at once. For the sake of the discussion he assumes the order was lawful and focuses on responsibility, not only on the intuitive impression that this was a principled and courageous man.
Why the solution of 'let them sleep afterward' is not really technical
The claim that the drill could have been held and the soldiers then allowed to sleep sounds like a practical proposal, but the column shows that it touches the heart of the issue. If an adult soldier decides not to sleep and then drives while tired, he is clearly responsible; but it does not follow that the company commander is free of all responsibility, or that he has no duty to prevent in advance a foreseeable situation of negligence. Already here the rabbi points to the possibility of shared responsibility: one person is responsible for his own act, and another is responsible for the fact that he knew this was likely to happen and did not prevent it.
When an external factor influences rather than dictates, ordinary responsibility remains with the actor
To sharpen the problem, the column distinguishes between dictation and influence. If external circumstances or another person deprive the actor of control, responsibility moves to the dictating factor; but if they merely tilt his judgment, the basic responsibility remains with the one who chose. Therefore even examples such as a thief acting מתוך hardship, or a person who committed suicide after encouragement from his girlfriend, do not automatically create double responsibility: as long as the decision was free, it is hard to attribute the act itself to someone else.
Halakha at the level of the individual tends to reject split responsibility
The column examines three halakhic avenues. The law of 'two who did it' does not fit, because there two people physically perform the same act, whereas here one person acts and the other only influences. The prohibition of 'placing a stumbling block before the blind' is closer, but it applies mainly where without the enabler the transgression could not have been committed, and even then it is a prohibition of causing stumbling, not necessarily responsibility for the transgression itself; where the sinner is not responsible, such as a minor or an unwitting person dressed in forbidden mixed garments, responsibility can shift to the enabler precisely because the sinner lacks full responsibility. Likewise, the reasoning 'the words of the teacher and the words of the student—which should one heed?' in agency for a sin and in incitement teaches that a competent person who chose the transgression usually bears the responsibility, while the influencer is exempt from it; the exception of an inciter to idolatry only underscores that it is an exception. The interim conclusion is that at the level of the individual it is hard to justify split responsibility.
From Maimonides on Pharaoh to the law of large numbers: a collective is different
From here the column turns to Maimonides on the hardening of Pharaoh's heart and on the decree that the Egyptians would enslave Israel. The rabbi's proposal is that this need not always mean a deterministic cancellation of choice, but rather a tilting of the scales. With an individual, such a tilt does not guarantee an outcome, but in a large collective it almost does, by force of the law of large numbers: each individual is free, and yet at the collective level one can know with near certainty that certain cases will occur. Therefore halakha and public directives must also take into account a tiny risk that would be ignored in relation to an individual; the example is checking a weapon with a flashlight on Shabbat, which may not be justified in a single case but is justified as a general rule for the army.
Therefore seemingly conflicting perspectives can be complementary
On the basis of the distinction between the individual and the collective, the column returns to the military case. The individual soldier who drives without sleeping is responsible for his own act, and 'the words of the teacher and the words of the student' still applies to him. But the company commander, battalion commander, and brigade commander operate at the level of a collective and know that in practice, within an entire company, some soldiers will not go to sleep, and therefore they bear responsibility for the systemic outcome as well. From this emerge complex positions that do not contradict one another: one can argue that the commanders gave an unreasonable order and yet the company commander was still obligated to obey because of the weight of military discipline; and one can also argue that he ought to have refused and at the same time they ought to have removed him, because both military hierarchy and preventing collective risk are real responsibilities. The conclusion is that the seemingly conflicting perspectives are not necessarily contradictory but complementary.
With God’s help
After the respite I got following the last post (which, to my sorrow, was not topical but dealt with matters that are genuinely important, and therefore merited one response instead of the 200-plus on the previous post), I saw that it was good and decided to continue the rest and to fulfill in myself the verse “He saw that the resting place was good and that the land was pleasant; he bent his shoulder to bear and became a tributary laborer.”.
Some time ago, a case was reported involving a reserve company commander named Meni Eitan, who refused to wake his soldiers for a battalion exercise because they had not slept enough the night before. He feared traffic accidents on their drive home after the exercise without sufficient sleep (there had been two such accidents in the company in the past). It was reported that an argument took place between him and the battalion commander and brigade commander, who stood their ground and determined that the exercise would be held as planned, yet he nevertheless decided to refuse and not wake his soldiers. Because of this refusal, his commanders decided to remove him from his post, and a public debate then arose around the issue.
My impression is that most of the public actually supports Meni Eitan and his decision, and sees him as a principled person willing to pay a price for his convictions. His soldiers also went out to protest, and of course he himself forcefully insists that he was right and that the orders were unlawful (he even accused the brigade commander of lying). To his credit, it does seem on the face of it that his step, whether justified or not, was taken for reasons worthy of appreciation and with great courage. Moreover, he asked the soldiers not to go too far, and certainly not to take steps that would threaten the integrity and cohesion of the military framework. In recent days it was reported that the army is apparently drawing conclusions from the case, and that his courageous step is yielding results (the army is reexamining the very common practice of a concluding night exercise before the drive home).
The question of shared responsibility
This case raises several difficult questions: first, was he right to refuse? Second, were those who removed him right? And third, which to my mind is the most interesting, is there necessarily a contradiction between those two determinations? Beyond these three principled questions, specific claims were also raised on the merits—for example, that he should have woken the soldiers and carried out the exercise, and if he feared their drive home then he could have let them sleep for a few hours after the exercise and before departure (if they left after sleeping there would be no driving risk and all would be well). Eitan argued that this was not practical, because in reality that is not what happens. Soldiers whose reserve duty has ended will not go to sleep; they will head straight home to their families and businesses. That is the nature of soldiers and human beings, as we all know them.
This last question appears merely technical, but I think that is not so. It actually raises a dilemma of principled significance. On the one hand, if that is indeed the factual situation, the responsibility lies with the soldiers and not with him. These are adults who are supposed to be responsible for themselves, and if he as commander enabled them to drive safely and they choose to drive recklessly, then ostensibly the responsibility is theirs alone. Does the (reasonable) expectation that in practice they will indeed behave negligently and set out immediately impose responsibility on him and justify his refusal to obey orders?
That question suddenly appears interesting and principled, and in fact it is not independent of the previous ones. To see this, let us sharpen it a bit further. Suppose the soldiers got up, carried out the exercise, were given time in the morning to sleep a few hours, and then went home. And suppose that in practice some soldiers did not go to sleep but left immediately, and one of them indeed had an accident. On whom does the responsibility fall? Clearly we would not absolve the soldier who acted negligently and set out without sleeping. He is an adult and should not have driven without having slept properly at night. He took an unreasonable risk, and the responsibility for that is certainly his. A truck driver who goes out to drive after not sleeping enough, even if his manager sends him to do so, is likewise not exempt from responsibility. Even though in practice many drivers really do not live up to that requirement. The fact that many fail does not absolve the individual of responsibility for his actions.
But does assigning responsibility to the driver who was harmed exempt the company commander from responsibility? That is not a simple question. Is shared responsibility of two different agents for the same act or omission possible at all? Moreover, even if it does exempt the company commander himself from responsibility for the accident itself, does that necessarily mean there was no justification for his attempt to prevent it—that is, for his refusal to wake his soldiers? One may hold that if it happens he is indeed exempt from responsibility, and yet he is still under an obligation (at least a moral one) to ensure that it does not happen. And from there one may also argue that such an obligation, even if only moral, is sufficient to justify his refusal of the order to conduct the exercise.
We can now see that the last question is quite similar to the previous ones. Like them, it too concerns the question of shared responsibility: is it possible to see the order the company commander received as unreasonable and to justify his refusal[1], and at the same time to see him as insubordinate and justify his commanders who removed him? That is, can responsibility be assigned both to him and to the battalion commander and brigade commander? Is there no contradiction between those two perspectives? The same applies to the final question: can responsibility for the safe driving of his soldiers be assigned to him together with the responsibility that rests on them if they drive recklessly without sleep? I want to argue that this is not a simple question, both theoretically and practically. On the theoretical level it seems difficult to justify shared responsibility of two agents for the same act, and even harder to formulate practical criteria for when it exists and when it does not.
Another example
This morning I heard a radio report about a case discussed in an American court. If I understood correctly, some young man committed suicide, and his girlfriend, who had tried to prevent him from doing so, eventually sent him a text message encouraging him to do it. The young man killed himself, and the woman was convicted of aiding murder. Here too the question arises whether it is really correct to assign responsibility to her for the act. If he was in a state in which he was not responsible for his actions, then it is certainly reasonable to place responsibility on her. But if he made the decision freely and consciously, then the responsibility is his. In that case the question arises whether responsibility can simultaneously be assigned to her as well. Every form of assistance to a crime in fact raises the question of shared responsibility.
Determination or influence
First, we need to focus the problem more precisely. When a person commits some criminal act, responsibility—moral and legal—for the act and its consequences rests on him. The assumption is that an adult of sound mind is responsible for his actions (I am setting aside the question of determinism and its implications for these matters), even if there are various circumstances that caused him to do what he did. Consider a person who stole out of financial distress. In ordinary cases we would not remove from him responsibility for the theft he decided to commit. Even in acute distress we would not easily remove that responsibility (except perhaps in a case of immediate danger to life, and even there one must discuss what our cousins the jurists call the “necessity defense”). A person is always responsible for his actions, and the surrounding circumstances are at most arguments for mitigation of punishment. The accepted assumption is that the circumstances do not affect responsibility for the act itself, except in extreme cases where he has entirely lost control over his actions (an irresistible impulse, temporary insanity, and the like).
This distinction can be presented as follows: the difference is between a situation in which the circumstances necessarily dictate the outcome (as in the case of an irresistible impulse) and a situation in which the circumstances merely influence the outcome. If the circumstances merely influence and do not determine, responsibility rests on the actor himself. Only if the circumstances dictate his actions (that is, he has no control) do we remove responsibility from him.
Split responsibility
Let us take one step further. What if some of the relevant circumstances are not natural but were created by another person? Ostensibly there seems to be no difference from what was described above. If those circumstances do not affect the act, then of course there is no basis for assigning responsibility to the one who created them. If they merely influence the act (but do not dictate it), responsibility still rests on the doer (just as with any voluntary act within given natural circumstances). And if the circumstances dictate the act (and do not merely influence it), then and only then is responsibility removed from the doer and can be assigned to the determining agent. In the example above, if the woman caused her boyfriend to commit suicide (that is, he had no control), then the responsibility is hers; but if she merely contributed to circumstances that influenced him (while control and decision still remained in his hands), then ostensibly this is like a choice made within circumstances, where the responsibility lies only with the actor. Of course, we have been assuming implicitly that blame or responsibility is always placed on only one agent. Is there, in a case of influence (rather than determination), any possibility of assigning responsibility to two different agents?
To sharpen the issue further, I will try to examine the issue through the lens of Jewish law. It is not always possible to infer from Jewish law conclusions relevant to other contexts (see the discussion of Jewish law and morality in column 15), but I think that here Jewish law sees things in a way that is not unique to it—in other words, in a way that is also valid in other contexts and modes of thought. A clear indication of this is that the position of Jewish law on these issues rests not on verses but on reasoning, and reasoning is generally universal.
Jewish-law aspects: 1. "when two people do it together" ("two who performed it together")
At a superficial glance, it is very tempting to take the discussion in the direction of “when two people do it together”. The Talmud discusses a case in which two people together performed labor on the Sabbath—for example, both lifted a heavy burden and carried it from a private domain to a public domain (see Mishnah Shabbat 92b and the Talmud there through 93a). The practical ruling is that if only one of them could have done it alone, he is liable and the other is exempt; but if neither of them could have done it alone (this one cannot and that one cannot), both are liable. At first glance this is a direct source for the idea of shared responsibility, where each of the two agents made some contribution to the overall result.
But a second look shows that this is not correct. The question with which the Talmud is grappling concerns two people who performed an act, and the question is which of them is halakhically regarded as the one who did it. The ability examined there is physical ability. Here our question is entirely different. The act is done only by one of them, and we are dealing with a situation in which he could have done it even without the assistance or influence of the other; the act is performed by his free choice (and could have been performed with or without the assistance). Here the question is who is the initiator, and especially who is responsible for that initiative, not who is the actor. Moreover, whether the other agent intervened or not, there is no way to determine in advance whether the act would have been done, since we are dealing with a decision of free will. In such a case, the actor who acted by his own choice is considered someone who could have done it alone, and if one relates at all to the discussion of “when two people do it together”, the conclusion that emerges from it is specifically that the assister is exempt—that is, that one should not assign shared responsibility.
Jewish-law aspects: 2. "”do not place a stumbling block”" ("do not place a stumbling block")
The context that seems more relevant is the prohibition of “Do not place a stumbling block before the blind”. The Sages derived from here that it is forbidden to cause another person to sin. For example, one who hands a cup of wine to a nazirite (who is forbidden to drink wine) violates this prohibition. It is important to clarify that this includes a situation in which the nazirite is acting intentionally—that is, he knows he is a nazirite and that a nazirite is forbidden to drink wine, and yet he nevertheless decides of his own free choice to drink it. At first glance, this is a clear source for split responsibility: the nazirite himself will certainly be held to account, for he committed the prohibition, but the one who caused him to stumble also violates the prohibition of “do not place a stumbling block”.
But it does not seem that we can learn from here that the one who caused the stumbling also bears responsibility for the act itself. First, the prohibition of “do not place a stumbling block” exists only in a case of two sides of the river—that is, only when the actions of the external agent are a necessary condition (even if not a sufficient one) for the act to be carried out. For example, when they are standing on opposite sides of a river, and the nazirite asks the other person to pass him a cup of wine. The latter does so, and the nazirite decides on his own initiative to drink it. True, the act is done by the nazirite alone, but without the assistance of the other it could not have happened. That is not our case, because even without the girl’s prompting the young man could have committed suicide (although it is not clear, and probably impossible to know, what he really would have decided). Moreover, in the prohibition of “do not place a stumbling block” the stumbling-block placer violates a prohibition of causing another to stumble, but responsibility for the prohibition of drinking the wine rests only on the nazirite himself. Thus, for example, some maintain that the one who caused the stumbling violates the prohibition even if the nazirite ultimately did not drink the wine, for in the end he did what he could to make the nazirite fail. That is, the prohibition concerns the act of causing the stumbling as such, and not necessarily responsibility for the prohibition of drinking the wine.[2]
The exception to this is when the one who causes the stumbling directly brings about the other’s prohibition with his own hands—for example, one who dresses his fellow in a garment of forbidden mixed fibers (see Maimonides, end of the Laws of Kilayim). In such a situation, if the person who was made to stumble acted unwittingly, Maimonides holds that responsibility for the transgression itself indeed rests on the one who caused it (that is, the one who caused it violates the prohibition of kilayim). This is a situation in which full responsibility rests on the one who caused the stumbling alone. But if the one who stumbled acted intentionally (and then of course responsibility rests on him), the stumbling-block placer violates at most “do not place a stumbling block”. The conclusion is that there is no split responsibility: if the person who stumbled is responsible, the one who caused it is not responsible. The same applies when one directly feeds a minor prohibited food: one thereby violates a prohibition, and some maintain that this means responsibility for the minor’s prohibition itself (as though the one who caused it himself committed the prohibition). But even there, it may be only because the minor is not responsible for his actions, and only for that reason can responsibility be placed on the one who caused it. We are dealing with a case in which the stumbling-block placer does not dictate the result but at most influences it. In such a case there is responsibility on the actor, and therefore it seems that from the standpoint of Jewish law there is no responsibility on the one who caused the stumbling or the one who assisted.
Jewish-law aspects: 3. "the words of the master and the words of the disciple"
It seems to me that the basis for the picture described in the previous section lies in other Talmudic discussions—those of the enticer and of an agent for a transgression. In both of these appears the reasoning “The words of the master and the words of the disciple—which words does one heed?”. In a case where a person sends an agent to kill someone, the agent is liable for murder and the sender is exempt. The Talmud explains this with the reasoning “The words of the master and the words of the disciple—which words does one heed?”.[3] That is, the agent is a person of understanding, and the fact that someone sends him to commit a transgression does not exempt him from responsibility. He should have understood that if the Holy One (=the Master) tells him not to murder and the sender (=the disciple) tells him to murder, he must listen to the Master and not to the disciple. This argument assigns responsibility to the agent, but it also removes responsibility from the sender. After all, the agent did it by his own choice, and therefore it does not matter that the sender created an atmosphere that encouraged the other to perform the act. Here this already seems very similar to our issue. Creating an encouraging atmosphere changes nothing, and so long as the act is done by the actor’s free choice, the responsibility rests only on him.
There is one exception to this picture, and that is the law of the enticer. This law is explicit in the Torah (“If your brother, the son of your mother, entices you…”, Deut. 13:7). In its plain sense this refers only to enticement to idolatry, but with regard to other transgressions Jewish law does not assign responsibility to an enticer. The reasoning is apparently “The words of the master and the words of the disciple—which words does one heed?”—that is, so long as the act is done by the actor’s free choice, responsibility is solely his. True, in the passage in Sanhedrin 29a this consideration is brought with regard to the serpent’s enticement of Eve, and that was not a case of idolatry (and indeed Yad Ramah there implies that there really is a law of enticer for all transgressions), but that is an aggadic passage. As a matter of practical law, the accepted view is that there is no responsibility for enticers except in cases of idolatry.
Interim conclusion
The conclusion from the discussion so far is ostensibly that responsibility should not be split. If the actor is responsible for his actions, there is no responsibility on the one who caused the stumbling or the one who assisted. And if we return to the case of our company commander, the drivers are responsible for their decisions, and if they decide not to go to sleep before driving—that is their responsibility. It follows that the commander is not responsible for accidents that may occur, and therefore ostensibly there is no justification for his refusal. But as we shall now see, there is room to question this conclusion.
Maimonides on a decree concerning a collective
Maimonides writes in Chapter 6 of the Laws of Repentance, law 3:
It is possible that a person may commit a great sin or many sins, such that justice before the True Judge requires that the punishment for these sins, which he committed willingly and knowingly, be that repentance is withheld from him and he is not permitted to return from his wickedness, so that he dies and is lost in the sin he committed. This is what the Holy One, blessed be He, said through Isaiah: “Make the heart of this people fat,” etc. Likewise it says, “They mocked the messengers of God, despised His words, and scoffed at His prophets, until the wrath of the Lord rose against His people beyond remedy”—meaning, they sinned willingly and multiplied their transgressions until they became liable to be denied repentance, which is the remedy. Therefore it is written in the Torah, “And I will harden Pharaoh’s heart,” for he had first sinned of his own accord and oppressed Israel, the strangers living in his land, as it says, “Come, let us deal wisely with him.” Justice therefore required that repentance be withheld from him until punishment was exacted from him; therefore the Holy One, blessed be He, strengthened his heart. And why then would He send Moses to him saying, “Send them out and repent,” when the Holy One, blessed be He, had already said to him, “You will not send them out,” as it says, “But as for you and your servants, I know…” and also, “Yet for this purpose I have let you endure”? It was in order to make known to all who come into the world that when the Holy One, blessed be He, withholds repentance from a sinner, he cannot repent, but dies in the wickedness that he initially committed of his own free will. So too with Sihon: because of his sins he became liable to have repentance withheld from him, as it says, “For the Lord your God had hardened his spirit and made his heart obstinate.” And likewise the Canaanites: because of their abominations, repentance was withheld from them until they made war against Israel, as it says, “For it was from the Lord to harden their hearts to meet Israel in battle, in order that they be destroyed.” And likewise Israel in the days of Elijah: because they repeatedly sinned, repentance was withheld from those who persisted in sinning, as it says, “And You have turned their hearts backward,” meaning, You have withheld repentance from them. It thus follows that God did not decree that Pharaoh should do evil to Israel, nor that Sihon should sin in his land, nor that the Canaanites should commit abominations, nor that Israel should worship idols. Rather, all of them sinned of their own accord, and all of them became liable to have repentance withheld from them.
The Holy One hardens Pharaoh’s heart as punishment for his previous sins. From Maimonides’ formulation it seems that this hardening was deterministic—that is, that Pharaoh could not have refrained from oppressing Israel. It follows that his punishment did not really come upon him because of these acts, but because of his earlier acts. But in my humble opinion it is more reasonable to interpret the verses differently: this is not a hardening that dictated Pharaoh’s decisions, for otherwise it would have no meaning (the Holy One could have punished him directly for the earlier sin: “he dies in the wickedness that he initially committed of his own free will”). It seems more reasonable to interpret it as a hardening that influenced Pharaoh’s actions, but did not dictate them. In such a situation his actions were still his responsibility, and therefore he was punished for them as well (and not only for the earlier sin). The hardening itself is a punishment for previous sins, but the punishments described in the Torah came upon him because of his responsibility for his actions (despite the hardening).
And then, in law 5 there, Maimonides asks:
[…] But does it not say in the Torah, “And they shall enslave them and afflict them”? So He decreed that the Egyptians would do evil. And it is written, “This people will rise up and go astray after the foreign gods of the land,” so He decreed that Israel would worship idols. Why then did He punish them? Because He did not decree concerning any specific known individual that he would be the one to go astray; rather, each and every one of those who went astray to idol worship—had he not wished to worship, he would not have worshipped. The Creator merely informed him of the way of the world. To what is this comparable? To someone saying: among this people there will be righteous and wicked people. Because of this, would the wicked person say that it has already been decreed upon him that he be wicked merely because God informed Moses that there would be wicked people in Israel? Similarly it says, “The poor will never cease from the land.” And likewise with the Egyptians: every single one of those who oppressed and harmed Israel—had he not wished to do them harm, he had the ability not to do so. For He did not decree concerning any specific individual; He merely informed him that in the end his descendants would be enslaved in a land not theirs. And we have already said that a human being has no power to know how the Holy One, blessed be He, knows things that are destined to come to be.
Maimonides here asks why the Egyptians who enslaved Israel harshly were punished, given that the Holy One had decreed in advance that they would do so (in the Covenant Between the Pieces). He answers that the decree was upon the Egyptians as a whole and not upon any particular Egyptian, and therefore each individual Egyptian had free choice, and once he chose to enslave Israel he was punished for that. So too with the punishment of Israelites who worshiped idols.
The Raavad, in his gloss there, objects to Maimonides’ words with great sharpness:
/Raavad’s gloss/ But does it not say in the Torah, “And they shall enslave them and afflict them,” etc.? Abraham says: these are lengthy words without substance, and by my life I am almost inclined to say they are childish words. Will the Creator say to the sinners, “Why did you sin?” and if I did not mention you by name, should you say that it was upon you that I decreed? The sinners could answer Him: “And upon whom did Your decree take effect? Upon those who did not sin? Then Your decree was not fulfilled.”
The Raavad argues that Maimonides’ answer is not serious. Let us formulate it this way: suppose all the Egyptians chose the good, and only one Egyptian remained. What would he choose? After all, there had been a decree that there be enslavement, and therefore he would necessarily choose evil. And so too with every one of the Egyptians. In other words, if every Egyptian really has free choice, how can the Holy One issue a general decree about all the Egyptians? Any individual Egyptian can choose the good, and then the divine decree could fail to materialize.
Beyond this, he writes:
But regarding “This people will rise up and go astray,” we have already said that in this matter the Creator’s knowledge is not a decree. All the more so here, for even Moses said, “You will surely act corruptly,” while I am still alive with you, and certainly after my death. All the more so the Creator could say this without it being a decree.
He is hinting here to what Maimonides himself wrote in the previous chapter (law 5): that the Holy One’s knowledge does not compel a person to choose. There is free choice despite divine foreknowledge (which is not a decree upon the Egyptians that they must act this way, but foreknowledge that they will act this way). Recall that Maimonides himself, in the law cited above, mentions his words in the previous chapter; that is, he too was aware that divine knowledge does not dictate human choice. Why then did Maimonides not rely on those words in our chapter? Why does he here find it necessary to distinguish between the Egyptians as a whole and the individual Egyptian, and what is the point of that distinction?
The difference between an individual and a collective
It seems to me that the basis of Maimonides’ novel point in Chapter 6 is that there can be a decree upon a collective alongside full freedom for each individual. This is in fact a certain expression of the law of large numbers. The Holy One decrees that the Egyptians will enslave Israel—that is, He tilts the scale of their choice (like the hardening of Pharaoh’s heart)—and yet each of them still has freedom to choose good or evil. And the other side of the coin is that even if each of the Egyptians chooses freely, still, in large numbers, it is almost certain that there will be enslavement. The same is true when throwing a die: on each throw the die is free to land on any face, but in large numbers we know in advance that the results will be distributed equally (for a fair die) among the six possibilities. This law reflects a paradoxical fact: one can know almost with certainty a fact about the collective despite—and indeed, for those who know probability, because—each individual enjoys full freedom (that freedom expresses independence between the events, and only then does the law of large numbers apply).
It may be that this explains why, when Maimonides discusses Pharaoh, who is a single individual, he explains that the Holy One dictated his behavior. When we are dealing with a single individual, hardening the heart would not necessarily bring about the desired result (because the law of large numbers does not operate there). But when discussing the Egyptians as a whole, we are dealing with a large population, and in such a case influence is enough (even without determination)—that is, tilting the scales of everyone’s choice so that on the collective level the desired results emerge (the law of large numbers).
A similar distinction regarding risks to an individual and to a collective
My student Hanan Ariel noted this principle in his article in Tzohar on public transportation (full disclosure: I accompanied him in the writing). He explains there that an instruction addressed to many must take into account risks that, with respect to an individual, do not really exist. This is not because of the importance of the public or a lenient attitude toward it, but because of the simple statistical consideration of the law of large numbers. Thus, for example, there is an army instruction that an officer unloading a soldier’s weapon after guard duty should do so with a flashlight directed into the chamber in order to make sure that no bullet remains there. The question that arises is: what should be done on the Sabbath? Is such an officer permitted to obey the instructions and turn on a flashlight?
At first glance this is a case of danger to life, but anyone who knows reality even a little knows that the chance of anything happening is negligible. Even on a dark night one can inspect the chamber with a finger, and there is no reason we should miss anything. Therefore, if an individual officer asks such a question, the answer should be that it is forbidden. But when the question is asked with respect to all IDF officers (that is, whether to establish a general army instruction that weapon-unloading is always done with a flashlight, even on the Sabbath), the answer will be that one must do so even on the Sabbath. Suppose the risk of error in such a single case is 1 in 10,000. With respect to an individual officer, that is a negligible risk that does not justify desecrating the Sabbath. But if one takes into account all IDF officers, that very same probability will lead us to the conclusion that it is almost certain that some soldier, from among all the soldiers in the army, will be killed; and therefore, as a general instruction, officers must be required to do this even on the Sabbath.[4] This seems to be the basis for the permissions to extinguish a glowing piece of metal in the public domain on the Sabbath (see Shabbat 42a and parallels; according to the Geonim, even Torah prohibitions were permitted there, despite the fact that the risk to any one individual is negligible).
Applying this to incitement and split responsibility
A similar consideration arises with regard to incitement. When I incite a single individual, the argument of “the words of the master and the words of the disciple” says that the responsibility is his. The incitement may slightly tilt the scales of his considerations, but since he still chose the act freely, the responsibility is his and not the inciter’s. But when one incites a collective, tilting the scales may not affect every individual in the collective, and each individual who sinned still bears responsibility; but at the same time the inciter must take into account that in a sufficiently large collective there will be some who change their decision. In such a case there is room for a duplication or split in responsibility. Although each individual who sinned bears responsibility, we can assign responsibility at the collective level to the inciter as well. The reasoning of “the words of the master” in its simple sense still exists here too, but there is room to depart from it with respect to the collective as a whole. The assumption is that a collective is composed of all kinds of people, some strong and some weak, and if there are enough of them then this incitement will, with a fairly high probability, bring about practical results. The inciter is not responsible for any one individual’s act of transgression, but he is certainly a partner in responsibility for the fact that within the collective of all those individuals there were some who sinned. There is room to apply this to the laws of those who lead an apostate city astray, but this is not the place for it.
Back to the questions above: conflicting and complementary perspectives
Above I asked whether there is room for doubled or split responsibility. I do not wish here to decide these questions on their merits (I do not know all the facts, and in any case the decision is difficult). My purpose here was only to point out that there is room for complex positions—that is, that there is no contradiction between two perspectives that appear, at first glance, to be contradictory.
One complex position: even if the battalion commander and brigade commander gave an unreasonable order (as noted in footnote 1, for purposes of the discussion I am assuming it was lawful) that it would have been better not to give, and therefore they bear responsibility for the situation, the company commander still also bears responsibility to obey the order. The army too is a collective, and the duty of obedience has significance for the army as a whole. This is not an ordinary act of an individual.
A second complex position, on the other hand: there is room for the claim that the company commander should have refused, and at the same time they should have removed him. There is no contradiction between one person’s responsibility and another’s. These ostensibly conflicting perspectives are complementary.
As for the question I added later—on whom the responsibility would fall if an accident had occurred—we saw that we would not absolve the driver of responsibility (he should have slept). But does that necessarily mean that the responsibility is not on the company commander (and therefore that he should not have refused)? Certainly not. True, the soldier is responsible for what he does (that is, he drives without enough sleep, and “The words of the master and the words of the disciple—which words does one heed?”). He decided to commit the transgression because of convenience and impulse, and the responsibility is his. On the other hand, on the collective plane, the company commander knows that it is unlikely that the soldiers will go to sleep before leaving (certainly not all of them). Therefore, responsibility for the fact that within the company collective there would be soldiers who would be harmed would also fall on him (and also on the battalion commander and brigade commander who gave the unreasonable order). With respect to an individual soldier, perhaps the risk of an accident need not be taken into account because it is a small risk, especially when set against the undermining of military hierarchy. Moreover, the individual soldier is in any event responsible for his actions and should have decided to go to sleep. But in a consideration concerning the company as a whole, the company commander should have feared an accident even if the probability that it would happen to any one individual was small, and even if the individual bears responsibility. Therefore the responsibility rests on him as well, and from that there is room to justify his refusal (because of that responsibility).
[1] For purposes of the discussion I am assuming that the order was lawful. The company commander himself claimed that it contravened army regulations that instruct that soldiers be given six hours of sleep. As far as I understand, that is apparently not correct (though one might discuss whether this was a case of illegality that was not manifest. See the discussion here).
[2] This conclusion is not necessary, and perhaps not agreed upon. Thus, for example, Rashi at the beginning of Parashat Matot cites the Sages’ midrash that one who causes his fellow to stumble comes under his punishment. Punishment is given for the transgression itself and not for the act of causing another to stumble, and therefore it would seem that responsibility for the transgression is being assigned here. Admittedly, in the plain sense Rashi is speaking about a case of direct physical imposition (see below).
[3] There are several nuances and different explanations here, and I will not enter into them. My purpose is only to illustrate the principled point.
[4] An interesting question is why the individual officer should still not violate the instruction and unload a weapon on the Sabbath without a flashlight. After all, from his standpoint there is no real risk. See in the fourth notebook the discussion of the categorical imperative.
Discussion
What is the justification for using statistics when מדובר in an event that is not random?
The article regarding public transportation (and public needs in general) to which you referred is fascinating. Can one infer from it that regarding the current issue of railway infrastructure work, it would be proper to carry it out on Shabbat if the assessment is correct that doing it on a weekday would increase the risk of accidents?
And given that public transportation is safer, is there not room to permit operating public transportation (even if only limited) on Shabbat, especially on Friday night, when the roads are more prone to disaster than on weekdays?
Indeed. Nicely put. 🙂 The same applies to swimming in the sea or in various bodies of water.
By the way, there is actually a problem here, since there are also many civilians. By the same logic, we would have to forbid a civilian from crossing the road alone without a police escort.
Good question.
I addressed this in my books God Plays Dice and The Science of Freedom. Surprisingly, it turns out that even non-random phenomena obey statistics. Throwing a die or flipping a coin is a completely deterministic event, and yet we still treat it statistically. The same is true of evolutionary processes (they occur on a non-quantum scale, so there is no reason to assume there is any randomness there). And the same is true of human choices (that is the meaning of statistics in psychology).
But of course, for our purposes there is no real need to resort specifically to statistics. Even if one cannot quantitatively predict how many people will commit suicide as a result of encouragement, one can probably still say a priori that encouragement raises the percentage of those who do. For the purpose of assigning responsibility to the enthusiastic encourager/inciter, that is enough. The question whether this can be quantified (that is, whether the outcomes obey some a priori distribution) is marginal here (and perhaps that is the meaning of the weakness of statistical laws in the human sciences. They express more general tendencies, if anything, than genuinely statistical results).
Maybe yes. But one should remember that another question is involved here. There are people who desecrate Shabbat by going out for recreation, and that is what puts them at risk. I am not sure that protection from such risks justifies desecrating Shabbat. Perhaps this depends on the Rashba’s comments on Shevuot 18 (really this is the Gemara there), regarding one who has relations with his wife close to her expected menstrual period and she sees blood. He transgressed a rabbinic prohibition and was involuntarily drawn into a Torah prohibition. The Rashba shows that the Gemara views this as inadvertent, not coerced. Of course, there is room to distinguish.
Such questions arise in the context of soldiers who are asked to secure hikers on Shabbat. The hikers go on a trip that involves Shabbat desecration, and the religious soldier has to desecrate Shabbat in order to protect them. It seems to me that on the simple individual level I would not permit him to desecrate Shabbat for this. To be sure, running an army as a state institution is different, but this is not the place to elaborate.
If I am right here, then there is room to distinguish between railway work and operating buses. The railway work is meant to protect passengers on weekdays (both because the results of the work serve weekday passengers and because carrying it out on Shabbat reduces the risk compared to doing it on a weekday), and only the work itself is done on Shabbat. Buses on Shabbat, by contrast, are meant to serve a public that travels on Shabbat itself.
Permit whom?!
Are you discussing a hypothetical halakhic state?!
What does this have to do with a halakhic state? A religious soldier can deliberate over the halakhic question whether to obey an order to secure hikers on Shabbat. Such things have indeed happened. Beyond that, there is also value in discussing what would happen in a halakhic state. What is wrong with such a hypothetical discussion?
From your perspective, ostensibly there should be no difference between a non-believer who drives to the beach on Shabbat and a non-believer who is careful to eat gefilte fish and cholent. If so, why is there a difference regarding security for them?
A note: even if, halakhically, the inciter is not liable, in the Heavenly court he is liable, as in the case of David and Uriah the Hittite.
Regarding the issue of “two who performed it”, in the Gemara the source for the exemption is a derashah on the verse: “And if one person from among the people of the land sins inadvertently by doing one of the things that the Lord commanded not to be done, and incurs guilt.” At first glance, it would seem that were it not for this derashah, we would have had to hold two people liable when they performed a melakhah together, and from here one could infer that joint responsibility should be imposed. But perhaps you meant that this derashah would not have been needed were it not for the prior reasoning that one should not impose joint responsibility. That is, derashot are composed of a combination of two elements: reasoning and language.
Regarding the free choice of a collective framework: ostensibly, your words imply that a collective group (say, Egypt) does not have free choice to be a righteous or wicked group. That is, if we assume there is an 80% probability that an Egyptian will enslave Israelites, then only with respect to the individual Egyptian can one say that he can choose whether to be righteous or wicked. But regarding the group of Egyptians as a whole, because of the law of large numbers it will always enslave Israelites. The group as a single body will not be able to change its ways (for good or for bad). That creates a strange situation in which the individual has free choice but the collective does not. Unless we answer that perhaps the collective also has free choice, only the collective’s process of choice happens gradually and slowly over many years in a way that cannot be clearly discerned (for example, social processes that occurred gradually until they ripened into the emancipation of Black slaves or the granting of emancipation to Jews, and the like).
This is not a punishment. A person who chooses to be a criminal, even if he does so innocently, cannot force me to desecrate Shabbat for him. In my opinion, the fact that he is coerced (or not a criminal) is relevant only to the point that I must inform him in advance that I will not protect him in the event that he desecrates Shabbat.
Indeed, but the discussion here is about legal responsibility in human courts. As for liability in the Heavenly court, one can discuss whether this is responsibility for the transgression itself or a kind of placing a stumbling block before the blind (an improper act for which he will be punished on the moral level).
And the Meiri’s well-known comments on the difference between liability to discharge one’s obligation in Heaven and an act of piety are relevant here, but this is not the place to elaborate.
I explained that “two who performed it” is a different discussion because there the issue is who performed the act, not who is responsible.
As for the freedom of a collective framework, there is freedom. In principle, it can always choose the good. But when the weights are tilted in a certain direction, then it is almost certain that someone within it will choose evil. That does not mean everyone deserves punishment or that the collective is evil. But it does mean that the act will almost certainly be done. It is like the quantum probability that a soccer ball will pass through a wall (the tunneling effect). It exists, but nobody takes it seriously.
The question is whether this counts as desecrating Shabbat. What overrides here the ordinary rule that saving a life overrides Shabbat?
What overrides it is that when a person deliberately forces me to desecrate Shabbat in order to save him, there is no reason whatsoever to desecrate Shabbat on his behalf. Similarly, if someone threatens me that unless I give him a shekel he will kill me, I am permitted to kill him and I am not obligated to give him a shekel, even though a gain of one shekel certainly does not justify taking a life. The point is that when someone deliberately does something and puts me in a position where I must desecrate Shabbat on his behalf, even though I warned him and he knows this, I am not obligated to desecrate Shabbat for him.
Is this connected to the fact that he desecrates Shabbat?
Even if he does not desecrate Shabbat, he can do things that will force me to secure him while desecrating Shabbat (say, to live in a relatively dangerous place, though here one could say that living somewhere is itself necessary, or to spend Shabbat in Hebron, or Lag BaOmer in Meron on Sunday).
Indeed.
What is the explanation for this “separation” of the collective from the individuals?
How can there be a collective phenomenon that has no root in the individuals?
Is this not similar to the ridiculous emergence theory of the materialists?
1. In my opinion, the emergence theory of the materialists is not ridiculous. I do not agree with it, and I also show that one cannot demonstrate such an example from science (at most, only weak emergence).
2. I gave as an example the law of large numbers: even though each die throw is free, the overall picture is dictated and known in advance. That is precisely the marvel of the law of large numbers, but so it is. To be sure, that is weak emergence.
3. But your question from the outset is incorrect. After all, my claim is that the collective is not an emergence from the particulars (that is not weak emergence, and strong emergence does not exist at all); rather, precisely my claim is that there is something more here (like a soul within a body). That is exactly because I do not think it is plausible to view it as nothing more than a collection of individuals. In this picture, the collective is not only built out of the individuals but also the reverse: it also influences them. If the collective acquires a tilt toward enslaving the Jews, some of the individuals will do so (even though each one has free choice).
1. 2. Why is it not ridiculous? Is it not a baseless speculation?
Could you explain to me the distinction between weak and strong emergence?
3. Do you mean what you wrote elsewhere, that the collective is a (Platonic) reality in its own right?
How does it influence? And why this individual more than another?
Thank you very much for the answers.
Speculation is not necessarily ridiculous. It has no basis, but perhaps it is possible. But this is semantics.
Weak emergence is emergence that can be explained—how it emerges from the micro to the macro. Strong emergence is where that cannot be explained. Their claim was that the soul is a strong emergence from the material whole. My claim is that one cannot bring any scientific example for this, because every time an example is brought, either there is an explanation showing the emergence, in which case it is weak emergence, or there is no explanation, in which case who says this is emergence at all (that is, perhaps there is nothing there but the details at the micro level). Therefore such a thesis will forever remain ungrounded by its very definition.
3. That is indeed what I mean, but I did not understand the question.
Thank you.
I am asking:
1. By what means and with what tools does the idea of the collective act upon the individuals and activate them?
2. Even if this were understood, how would we explain its choice to activate this individual more than another?
If I knew that, I would ascribe it to weak emergence. The fact is that the properties of the collective activate the individuals in some way. Just as you do not know how the soul activates the body, and why it activates specifically the little finger of the left hand and not the right ear.
Regarding what you inferred from the issue of there is no agency for a transgression, namely that “creating an encouraging atmosphere changes nothing, and as long as the act is done by the free choice of the doer, responsibility is only his,” this seems to be contradicted by the Gemara in Bava Metzia 10b. There it is explained, in Ravina’s view, that if the agent is not commanded in this specific prohibition, then the principal is in fact liable, even if the agent has free choice (and even from the other view there is no necessity that it disagrees on the basic point). If I remember correctly, according to most Rishonim this is based on reasoning without a verse (and even from Rashi, who disagrees, it seems that this is not the point of dispute).
It seems to me that the necessary conclusion from this is that there is always responsibility on the principal as well, except that the agent has greater responsibility, and in addition there is an assumption that one prosecutes only the one who has the greatest responsibility, and when he cannot be prosecuted one moves on to the one with the lesser responsibility. It seems to me that this too is an interesting conclusion regarding the subject of the post. Incidentally, similar models in halakhah can be found in Bava Metzia 42, Tosafot s.v. kol; Bava Kamma 6, Tosafot s.v. le’atuyei; and also in our sugya in the Rid on Kiddushin 42b, s.v. shalach.
That is only when the agent is obligated. If from his standpoint this is not a transgression, then of course he has no reason not to do it (the logic of “the words of the Master and the words of the disciple” does not apply), and then the responsibility is on the principal. This has nothing to do with greater and lesser responsibility. In halakhah there is no responsibility on those who send others.
First, according to the explanation in the post, this itself is indeed unclear to me: why do we need to arrive at the reasoning of “the words of the Master”? At the end of the day, the agent still has free choice and may decide not to carry out the agency for various non-halakhic reasons—in the terms of the post, the principal is still only “influencing,” not “dictating.”
Second, Tosafot there s.v. de’amar note (and their words are straightforward) that it is proven in the sugya that Ravina’s rule is true even when the agent violates the prohibition of placing a stumbling block before the blind by carrying out the agency—that is, since with respect to the principal’s transgression the agent is not subject to obligation, the principal becomes liable for it (while the agent is liable for placing a stumbling block). Here one can no longer say that the agent had no reason to do the act, ostensibly.
That itself is the reasoning of “the words of the Master.” See its use in the Sanhedrin sugya to exempt the serpent from the law of an inciter.
This reasoning can be discussed, since the transgression of placing a stumbling block before the blind, which is a transgression vis-à-vis the principal, would not nullify the agency if the principal himself wants it.
The causing of stumbling is not only vis-à-vis the principal but also vis-à-vis the woman being betrothed.
In my view that does not matter for two reasons: 1. He is the principal’s agent, not hers. 2. She too agrees to the betrothal, and he is not supposed to care for her more than she cares for herself.
What does that have to do with it? In the end, “the words of the Master” tell him not to do the act, for as is well known, the fact that the one stumbling wants to stumble does not permit causing him to stumble, and therefore he is indeed obligated to care for her. And that returns us to the point that the principal is only “influencing.”
This is not connected to the prohibition against causing someone to stumble. The question is whether the agency remains valid. Especially if one follows the view of the Sma, according to which “the words of the Master” is an argument of the principal (who did not think he would be obeyed).
But let us leave aside all this pilpul; I do not understand what you are trying to establish: how do you prove from all this that incitement and encouragement to sin have significance?
I prove it from the fact that according to Ravina the principal is liable even though his agent has free choice and even has a prohibition against carrying out the agency. And the principal is ostensibly only “influencing”—parallel to the military commander, as was written in the post (the comparison is yours, Rabbi).
I disagree. If that were so, we would have to hold the principal liable in every case (even when the agent is in fact obligated by the prohibition). And as for the principal’s liability according to Ravina even though the agent violates placing a stumbling block before the blind, that is no proof. When the agent is not liable under the prohibition, then the agency stands because there is no “the words of the Master,” and consequently the principal is held liable, for he alone is liable under the prohibition. The agent of course violated placing a stumbling block before the blind, but the principal is not liable for encouraging the agent to violate placing a stumbling block; rather, he is liable for encouraging him to commit the prohibition itself.
Your claim that there is a difference in degree of responsibility does not explain any of this. First, it is not clear as a matter of reasoning. If the agent bears responsibility for the act, let him receive punishment himself. Why does it matter that the principal has more responsibility (especially in light of the reasoning in cases of two who performed it where one can and one cannot)?
I am concerned that there is some basic confusion between us, and so I will ask only about the main point without entering into the side discussion of placing a stumbling block before the blind.
1. I cannot grasp where the Rabbi explains how it can be that the principal is liable in any case whatsoever, as long as the agent has free choice. Does the Rabbi mean to say that this is a novelty of the law of agency (and in that case it truly is not parallel to the moral perspective)? Because from what I understood in the post, this itself was the topic—that the Rabbi assumed in the post that the concept of agency means that I am responsible for the act of the agent and therefore his acts have implications for me, and when it comes to agency for a transgression, then “the agency is nullified”—that is, one cannot be responsible for someone else’s sinful act, but each person is responsible for his own sins. To that I objected that we find that sometimes this is not so.
2. The Rabbi reversed my point. I said that in agency for a transgression, the agent has greater responsibility (not the principal), and that is because of the reasoning of “the words of the Master,” which in my approach says that for a sinful act, the doer is always the one with the greatest responsibility (and he cannot exempt himself from responsibility by saying that he is only following orders). To be sure, the principal also remains like any principal, but in agency for a transgression his responsibility becomes secondary. This explains why, in the ordinary case of agency for a transgression, the agent is prosecuted and not the principal (because only the one with the greatest responsibility is prosecuted, as I brought examples of this from other places. Incidentally, in my humble opinion this is also the simplest explanation of the Rambam the Rabbi cited in the post, about one who dresses his fellow in shaatnez, who is liable only if the one being clothed is inadvertent and not deliberate). And this also explains why, when the agent is not commanded in the prohibition, the principal is prosecuted—for although the agent is the one with the greatest responsibility for his acts, he cannot be prosecuted because he is not commanded in that prohibition, and therefore the principal is prosecuted. What is unclear in this reasoning?
Regarding the later concept of “nullification of the agency,” to which the Rabbi keeps returning, as is well known this is disputed among the Rishonim there in the sugya. On my approach, the meaning of the term is not literally its plain sense; rather, the meaning is that inasmuch as the doer is the one with the greatest responsibility for the transgression, he is also the one with the greatest responsibility for the entire act as a whole (that is, the degree of responsibility is not divided within one act). Those who disagree hold that responsibility can be divided within the act according to its contents—that is, the agent is the one with the greatest responsibility for the transgression within the act, but the principal is responsible for the betrothal within the act.
3. This is not similar to two who performed it, because there their responsibility is equal, and why should one prosecute one rather than the other? That is not the case here.
I can only repeat what I wrote.
As stated, the principal is not liable for the fact that the agent commits the transgression. Regarding the prohibition of placing a stumbling block before the blind I explained. Beyond that, there is no proof here whatsoever for responsibility for incitement and the like.
As stated, it is not plausible that if there is a person responsible for some act, he should be exempted merely because there is another responsible person as well. The terminology of secondary or primary responsibility is not important. If one imposes responsibility for incitement and encouragement, then the inciter and encourager should always be punished.
The Rambam about one who dresses another in shaatnez is of course another example similar to what I said. When the wearer is inadvertent, responsibility lies on the one dressing him. But when he is deliberate, there is no responsibility on the one dressing him.
Well, I think we have exhausted the matter.
Indeed. Thank you very much.
According to your view, in a case where it is known that he is very weak-willed and can easily be incited, responsibility should be placed on the inciter (or at least on him as well), and the rule of “the words of the Master and the words of the disciple” would not apply. Perhaps this is what the Gemara means by “the seduction of a minor is coercion”… And what happens in a case where I use my authority to influence (a rabbi, lecturer, and the like)? Intuitively it seems to me that the person with the influence would also be blamed.
That is the rule in the case of an incompetent person: one who sends a fire through a deaf-mute, an imbecile, or a minor. “Weak-willed” is an undefined state, and there will probably be a greater degree of blame, but not full blame. The same applies to a rabbi.
A fascinating issue, and definitely important and relevant. Thank you!
And for a more extreme example of a decree imposed on a collective within the IDF framework: during field training (navigation, marches, drills, etc.), a soldier is not allowed to cross the road alone. An officer is required to help him cross the road safely.
A child up to age eight does not cross the road alone—and neither does a soldier up to the rank of second lieutenant.