Chillul Shabbat in the Police: B. What Is Public *Pikuach Nefesh*? (Column 530)

In the previous column we saw that the basis on which police operations on Shabbat are commonly justified is considerations of pikuach nefesh (saving life), though the halakhic authorities expand those considerations significantly (in my view, not always justifiably). In my article in the IDF Rabbinate’s journal, Mechaneikh 3, from the year 5768, I discussed a judge’s duty to stand up to threats, and from there I reached a conclusion regarding the operation of other public services—such as the police—on Shabbat. My claim there was that it is permissible to operate the police on Shabbat even when there is no concern for the loss of life of any individual, simply because these are critical public needs. We already saw a direction like this in the previous column in the discussion of a live coal of metal; now I will elaborate.

The Judge’s Duty: “Do Not Be Intimidated”

Our starting point is the Sages’ exposition in Sanhedrin 6b:

Reish Lakish said: Two who come to litigation, one gentle and one fierce—before you have heard their words, or after you have heard their words but do not yet know where the law leans—you may say to them: I will not involve myself with you, lest the strong one be found liable and then pursue the judge. But once you have heard their words and you know where the law leans, you may not say to them: I will not involve myself with you, as it is stated (Deut. 1): “Do not be intimidated by any man.”

See also in the Sefer HaMitzvot, negative commandment 275, and in Sefer HaChinuch, mitzvah 515, which count this as a commanded duty. From a certain stage onward the judge is obligated to judge and may not recoil from threats. The question is how far this extends: must he even give up his life for this?

In the Sifrei to Deuteronomy, sec. 17, we find:

“Do not be intimidated by any man”—you might say: I fear So-and-so lest he kill my son, or lest he set fire to my sheaves, or lest he cut down my saplings. Therefore the verse says: “Do not be intimidated by any man, for the judgment is God’s.” And similarly Jehoshaphat says (2 Chron. 19:6): “Consider what you are doing, for you do not judge for man, but for the Lord.”

Here we already see that this extends even to danger to life for the judge or his family, and beyond.

These words are brought as halakhah by Maimonides, Laws of Sanhedrin 22:1 (and likewise in the Shulchan Aruch, Choshen Mishpat 12:1):

If two come before you for judgment, one gentle and one fierce—before you have heard their words, or after you have heard their words and do not yet know where the law leans—you may say to them: I will not involve myself with you, lest the fierce one be found liable and then pursue the judge. But once you have heard their words and know where the law leans, you are not permitted to say: I will not involve myself with you, as it is stated: “Do not be intimidated by any man”—do not say: So-and-so is wicked; he may kill my son, or set fire to my sheaves, or cut down my saplings. And if he is appointed for the public, he is obligated to involve himself with them.

The simple implication is that even danger to the judge’s life, or that of his family, does not exempt him from hearing their words and then engaging and deciding the case. As we see in the Talmud, the decisors note that this applies only once he already knows where the law leans; earlier, he may evade the case. Yet at the end of Maimonides’ words there is an additional novelty: the foregoing pertains only to a casual judge—a Torah scholar whom the litigants ask to sit and judge them. But an appointed, regular judge, for whom this is a profession, may not evade hearing their words even if he does not yet know where the law leans. For our purposes, what matters is the rule regarding the appointed judge, who bears a public office, and we see that with regard to him there is a very stringent requirement in halakhah: he may not recoil even in a case of real danger to life.

Responsa of the Rashba, part 2, sec. 344, likewise addresses this question and writes:

Response: Strictly speaking, whenever Shimon has assets in Montesson, the court must attend to Reuven and summon Shimon to come and litigate before them… And if it is because he suffered loss due to the official, that does not exempt the court from attending to the plaintiff. For if he frightened them to act with them unjustly—perhaps he lacks the power, and he frightens them with empty words. Moreover, if so, everyone will do so, for there is no one who cannot cause harm; and then the great will never be judged. But the Torah said: “Do not be intimidated by any man, for the judgment is God’s.”

He indeed speaks of monetary threats rather than threats to life, but even with monetary threats the general rule is that I am not obligated to endanger my property in order to save another’s property. In principle, then, the difficulty exists here as well. His (second) rationale is crucial for us: if we yield to threats, there will be no equal justice for great and small. That is a threat to the system of law and justice in Israel; therefore we may not yield to threats. From here one can infer that this is also the explanation for the judge’s duty to judge even when threatened in his life or that of his family.

The Difficulty

The difficulty is obvious. How can one obligate a person to endanger his life in order to judge? Seemingly, all prohibitions of the Torah are set aside for pikuach nefesh, aside from the three cardinal transgressions. The duty to judge is certainly not one of the three that override danger to life. Moreover, accepted halakhah is that not only is there no obligation, it is even forbidden for a person to give up his life for one of the cardinal sins (e.g., to save another’s life). True, there are opinions that it is permitted, but even they agree it is certainly not an obligation. Regarding possible danger there is a minority opinion that it is obligatory, but we do not rule that way (see the survey here). Note that all this concerns giving up one’s life to save lives, whereas for a judge it would be to save another’s money. That is certainly not an obligation and, simply, would be prohibited.

In my article I cited later authorities who, because of this difficulty, wished to argue that this is not real danger to life (as in the first explanation in the Rashba cited above), but that is a very strained reading of the sources. Others sought to distinguish between certain danger and possible danger (see sources cited there). Thus, for example, the Tumim (CM 12:2) quotes the Bach:

The Bach asked from the Sifrei that implies that even if he will kill him, nevertheless he must not refrain from judgment… But if he has already engaged with the case, even Mahari”v agrees, God forbid, that on account of fear or some terror he must not remove himself from the case, and he is obligated to judge. And this is the meaning of the Sifrei—that even if he will kill him, he must not remove himself; i.e., once he has already engaged with the case, and there is no difficulty. And so I found in Responsa Shvut Yaakov I:243, that after he knows where the law leans, he may not remove himself on account of fear in any way, and so it is correct.

Yet the problem remains: even possible danger to life overrides the entire Torah. Nowhere do we find a distinction between certain and possible danger to life. If danger to life overrides a prohibition, possible danger does as well; and if possible danger does not, then certain danger does not either. In the previous column I sharpened what emerges from the sugya in Yoma, that there is no place to distinguish between certain and possible pikuach nefesh. Put differently: Is another’s property preferable to the judge’s life? And if for some reason the answer is yes, why not obligate him to judge even in certain danger?

Some wished to explain that here the issue is a public desecration (a prohibition transgressed publicly), and therefore the judge must give up his life to prevent chillul Hashem (for any public transgression is in the category of “be killed rather than transgress”). So it seems at the start of Shvut Yaakov I:143. But he himself rejects this, since this is not necessarily in public. Moreover, this explanation stands only if one understands the above Sifrei literally—that even in certain danger the judge is obligated to attend to the case. But I know of no view that rules so. If so, we remain with the question of how to understand the very permission—and, from there, how and why to distinguish between certain and possible danger. We will address these two questions in turn.

On the Very Permission: The Individual’s Duty in a Public Role

It seems that the only way to understand this puzzling halakhah is grounded in the explanation of the Rashba and the Bach. If the judge does not judge in such a case, this is a severe breach, for any violent person could evade justice, society would be governed by anarchy, and we would all fall prey to violent people. Because of this concern, the judge in such circumstances does not act by the regular halakhic rules that address a private individual, but as one who bears a public office. A private person is not obligated (and apparently is forbidden) to endanger his life to save another, all the more so to save another’s property. Here, by contrast, although there is no danger to life to anyone, the judge is required to show self-sacrifice. A breakdown in public order—even if it is only a danger to citizens’ property—is akin to pikuach nefesh, because society cannot function in such a state.

Think of a society whose judges fear violent people and will not adjudicate such cases. Even if they are only monetary cases, you have a non-functioning society. A violent person can seize whatever he wishes; the social fabric is undone; we cannot live there. In such a situation people will leave and the society will dissolve. What is true of judges is true for the police as well. Imagine there is no functioning police on Shabbat, and, for the sake of argument, there are no murderers among us—only thieves or violent people who beat others or even merely harass them. Can a society function like this? Any sensible person would move to Australia—or anywhere with rule of law and effective policing. This concern is considered pikuach nefesh, and therefore it requires taking risks and, to the same degree, permits Shabbat desecration.

Implications for the Police

My claim is that the duty to enter into possible danger does not derive from the fact that, if not done, someone’s life will be endangered, but from the fact that a breakdown in public order—even in monetary matters—is like an individual’s danger to life. That is why a judge must risk his life in order to adjudicate and not be cowed by threats. From this we may derive another conclusion: if we indeed view this situation as a form of pikuach nefesh, it also permits us to transgress prohibitions to avoid it. The first novelty concerned the judge, who must risk his life. But from there we can also learn about operating the police on Shabbat. Pikuach nefesh justifies transgressing prohibitions, including Shabbat desecration. Thus it follows that the police may act on Shabbat even to prevent unusual noise or theft, even if no one’s life is at risk. The reason is that a situation in which the police do not respond on Shabbat to such calls leads to social breakdown. People will know that on Shabbat they can do whatever they want to whomever they want; any violent person can steal and beat with impunity, so long as he does it on Shabbat and to a religiously observant person. One cannot live in a place that operates this way. The disintegration of social order is pikuach nefesh, and such a thing justifies Shabbat desecration.

This reasoning stands on its own. But if one insists on grounding this permission too in the concept of pikuach nefesh, there is also a way to explain it thus. The premise is that we perceive society as an organism, like an individual person. The death of an individual is relatively easy to define, whereas the death of a collective organism is harder to define. My claim is that when the collective’s ability to function is substantially undermined, this is a risk to its existence and therefore is considered pikuach nefesh of the public. That is a good reason to treat substantial social breakdown as a pikuach nefesh consideration. It is the “death” of society, even though each of its members continues to breathe.

As an example, think of a community or synagogue run by gabbaim (wardens), and it is accepted that those gabbaim are exempt from certain parts of the prayer (e.g., when they cut the herring for the kiddush or are arranging the service). Similarly, halakhah exempts the attendant at a meal from reclining at the Seder and other dining laws. The reason is that this is required for the rest of the public to function. Put differently: even if the gabbai does not pray, he is considered as having prayed together with the entire community. The public is an organism that functions as a whole, and even if one member is doing something else for the sake of general functioning, he is considered as having fulfilled what is required of him within the public’s overall fulfillment. Something similar appears in Sukkah 38b regarding the public recitation of Hallel, which is divided among groups, or between the prayer leader and the congregation, and not everyone says the entire Hallel; yet clearly each individual is considered to have recited Hallel, for this is how a public recites Hallel, and therefore anyone included in it is deemed to have said Hallel in full.[1]

Below I will further ground this, bring additional precedents and sources, and examine further implications—but first I must show how this proposal resolves the second difficulty: the difference between possible and certain danger to life.

The Difference Between Possible and Certain Danger: The Individual’s Standing Within the Public

As noted, the identification of social breakdown with pikuach nefesh is not complete, for in a case of certain danger to life there is no prohibition of “do not be intimidated,” and the judge may withdraw from the case. What is the root of the distinction between possible and certain danger in this context? I have argued in several places that each person is judged in two aspects: the public and the private.[2]

As a rule, I argue that every Jew wears two hats: the hat of a private person who stands before God, and the hat of a limb in the overall organism (=the collective of Israel) that stands as a whole before God, with him as a part of it. One can see this through Maimonides’ words (Laws of Repentance ch. 3) that on Rosh Hashanah they judge each person, the city, the state, and the entire world. His commentators already wondered: after judging each person, what is there to judge the city for? And likewise the state and the world. It seems his intent is that a person can be judged meritorious based on his private deeds, yet the society to which he belongs is a wicked society that should be judged guilty—and vice versa. Thus there are several independent aspects by which each person is judged: as an individual, as a member of a community, in a city, in a state, and in humanity as a whole. Each is an independent aspect on which a person is judged.

This view combines two more simplistic approaches: on the one hand, fascism, which sees the individual as a limb of the collective and wholly subjugated to its goals; on the other, individualism, which sees the private person as the basic entity and the collective as a fictive construct meant to serve the individual. The halakhic view combines both: a person has an individual standing, and at the same time he is a limb in a collective. This has several ramifications.[3]

A salient example of this is an ethical principle accepted in the IDF, and likely in any reasonable army, that one does not order a person to sacrifice his life in a military mission, only to risk it. When a soldier goes to war he risks his life, and we have no choice but to demand this. One need not assume that war is a mitzvah (as many mistakenly think); it suffices that without it we would all not survive here. You are not fighting for others but for the collective of which you yourself are a part, and the way a collective fights is by sharing the burden among its members (a note to our Haredi cousins). This is what justifies demanding that a person risk his life in war. But if there is a “suicide mission,” i.e., a mission from which a soldier certainly will not return, one cannot order him to do it; at most, one can ask for a volunteer. The story that illustrates this more than any other is that of Yehuda Ken-Dror at the Mitla Pass. Paratroopers fell into an Egyptian ambush; Rafael Eitan, who commanded the force, asked for a volunteer to drive a jeep and draw Egyptian fire in order to expose their positions. It was clear this was a suicide mission, so no order was given. Yehuda Ken-Dror volunteered, and indeed was wounded and passed away a few months later.

What is the difference between the demand to risk your life and the demand to sacrifice it? Intuitively it is very clear, but if we attempt to conceptualize it, the essence seems to be that each soldier is also a private person and not only a limb in the general organism (the army, the nation). We can demand that he risk his life for the organism of which he is a part, and the danger to the organism as a whole is also a danger to him in particular—just as one may sacrifice a limb to save the whole body. But a person is not only a limb; he is also an individual entity in his own right. Therefore, unlike a limb in an individual body, we cannot demand of a human being that he sacrifice his life for the collective to which he belongs. His individual “hat” prevents this. In a fascist conception there is no problem, for the individual is merely “oil for the wheels of the revolution,” wholly subjugated to the needs of the collective. But in the halakhic, more complex conception (and as noted, accepted in most civilized societies), this is not possible, because the individual hat cannot be entirely nullified before the collective hat; each has independent standing and neither is completely subservient to the other.

So too with the judge. The judge is himself a citizen of the state and the community; as such, he too will be harmed if there is no effective justice system. Therefore one appointed as a judge is a kind of soldier, and from that follows that we can demand that he risk his life to prevent the system’s deterioration. But we cannot demand that he sacrifice his life, for he also wears an individual hat. Hence the distinction we saw regarding “do not be intimidated,” whereby in certain danger he is not obligated to judge.

Note that the same follows for a police officer. My approach rests on the parallel between the duty to risk life and the permission to transgress. Both apply in a case of pikuach nefesh, and if a breakdown of public functioning is considered pikuach nefesh, then it justifies demanding that a “soldier” (i.e., a public official) risk his life and permits such a “soldier” to transgress prohibitions. Thus, just as the officer may—and indeed must—desecrate Shabbat to preserve the social fabric (to prevent the “death” of society), so too he must risk his life for this, just like a judge or a soldier. But likewise, a suicide mission is of course not obligatory for a police officer, for the same reasons; at most, he may volunteer.

Interim Summary of My Position

Up to here I presented a solution to the question of the duty of a judge, a police officer, or any holder of public office, to risk life when there is a danger of the public’s functioning being undermined—and the permission for all these to transgress prohibitions for that purpose. I think the rule of “do not be intimidated” is a very strong proof for this thesis, but because of its radical nature, I will now try to convince you further of its correctness.

Note that my words here rest on two assumptions: (A) We must treat the public as an entity with independent standing, whose existence justifies transgressions and risk; (B) Pikuach nefesh with respect to the public is when its normal functioning is undermined, even if there is no concrete danger to human life. I will now demonstrate this through three halakhic examples.

Killing and Transgressions to Save Property: Examples

The first example is in the Shulchan Aruch (CM 388:10) and Maimonides (Laws of Wounding 8:10), which permit killing one who informs on another’s property (moser) after a warning (source: Bava Kamma 117a). Note: this is permission to kill in defense of property. Also note that this permission pertains only to one who is predisposed to inform (the law requires a prior warning, and only if he persists may he be killed). Not every specific threat to property justifies killing.

Still we can ask: how can loss of property, even ongoing and not local, justify killing? Some authorities tied it to a future fear for life—when the non-Jew comes to take the property, a confrontation may ensue and there is a risk to life; or poverty can indirectly lead to danger to life. But these are very strained explanations. More plausibly, the reason is that if we do not permit this, the informer will continue handing over Jewish property with impunity. In such a state, every member of the community feels destabilized and cannot feel secure and conduct normal life. Because this concerns a breakdown of social order, and not only a problem for a private person, even if it is about property it is permitted to kill the informer, even if it is only to protect property.

The second example appears in my article in Techumin on killing a thief. There I argued that the permission to kill a burglar who tunnels in (ba bamachteret) is based on the same mechanism: the core of the permission is the need to protect property from a phenomenon liable to lead to social anarchy. Although in Sanhedrin it seems the permission to kill the burglar is based on future danger to life, in that article I showed this cannot be the real reason (see more below). My claim there was that the core permission is that if it were forbidden to kill thieves, thugs could exploit the situation and steal at will from anyone. This is an intolerable social state and justifies killing a person to defend property.

The third example is Shabbat desecration to defend border towns. In Shulchan Aruch, Orach Chaim 329:6–7, we find:

6) Non-Jews besieging Jewish towns: if they come for monetary matters, one does not desecrate Shabbat for them; if they come for lives—or even without specification—one goes out against them with weapons and desecrates Shabbat. And in a town near the border, even if they come only for straw and hay, one desecrates Shabbat for them. (Rema:) Even if they have not yet come but merely wish to come (Or Zarua).

7) Some say that nowadays even if they come for monetary matters one desecrates, for if the Jew does not allow them to plunder his property they will kill him, and it is matters of life (yet all depends on the case) (Piskei Mahari, sec. 150/156).

I will not enter here into the details of the sugya and the commentators (see my article in Techumin on killing a thief), but in light of what we have seen, at least for some views I understand the permission to desecrate Shabbat for border towns attacked by non-Jews as applying not only when there is danger to lives—even indirect—but also when they come for monetary matters, if there is concern that it will become a regular phenomenon (the case where one does not desecrate Shabbat for money is when the event is one-off). I think the reason is that if we do not intervene and defend them, the non-Jews will know that such towns are hefker on Shabbat. They can do as they wish and no one will intervene; that will dismantle the possibility of living in the border towns. Those communities will “die.” Afterwards, of course, this will happen in the rest of the country as well (as people abandon the border, it creeps toward the center). This is exactly like we saw regarding the law of the informer.

This is similar to the permission to wage war on Shabbat derived from “until it is subdued” (ad ridatah). There too a situation prevailed in which Jews did not fight on Shabbat, and the non-Jews knew that on Shabbat everything was possible. There, indeed, there was also danger to life; but I think the consideration exists even without such danger. This brings me to the rationales brought by the decisors for the three laws cited. Seemingly, in all three, at least some decisors invoke rationales of future pikuach nefesh, expanding the permission very broadly. But I do not think that is the correct rationale, as I will now explain.

Pikuach Nefesh Rationales as a Fiction

In the case of the burglar in the tunnel, it is the Gemara itself (Sanhedrin 72a) that introduces the pikuach nefesh angle:

Rava said: What is the reason for [the law of] the tunnel? It is presumed that a person does not restrain himself with respect to his money; and this one says: If I go [to steal], he will stand against me and will not leave me, and if he stands against me I will kill him; and the Torah said: If one comes to kill you, rise early to kill him.

The permission to kill the thief is explained as follows: the homeowner will not restrain himself and will confront the thief, thus there is concern the thief will kill him; therefore the homeowner may kill first. In the article cited I showed this cannot be the true rationale. One can certainly demand that a person hide in a room and not confront the thief. Moreover, the Gemara brings there a source that one may do this even on Shabbat; if this were truly a pikuach nefesh permission, of course it would apply on Shabbat too. From these proofs (see further proofs there) it emerges clearly that the core permission is a person’s right to defend his property—even if it entails killing another who threatens it—and also to desecrate Shabbat for that. That is exactly what we learn from there: that such a state is in the category of pikuach nefesh, with two consequences—permission to kill and permission to transgress prohibitions.

But when the Gemara explains why this is subsumed under pikuach nefesh, it appeals to danger to life—and this seems a fiction. In the article I suggested perhaps this is to avoid cheapening human life in our eyes: to kill a person for property alone is educationally problematic, so they prefer to invoke potential life dangers, however remote. But the permission itself stands even without that, as is evident in the simple law of the informer. True, some decisors also rationalized killing an informer by danger to life, but the danger is so remote that, by the standards of pikuach nefesh, it hardly justifies killing. Thus, it seems to me, even there the use of such rationales stems from a sense that we must permit, yet we cannot find a sufficient formal clause; so they expand pikuach nefesh to an implausible extreme.

I think it is better to put matters honestly on the table: logic dictates that it is permitted to kill an informer of property and to kill a thief if there is no other way to deal with them—and therefore it is permitted. Recall that in the previous column we saw that the very permission to transgress because of pikuach nefesh is grounded in sevara (reasoning). It is no wonder that this reasoning can go a step further. Below we will see further permissions to transgress based on sevara.

In the previous column we saw the difficulties in understanding the rabbis’ letters regarding operating the police on Shabbat, and the sense that the permission due to pikuach nefesh is quite dubious even in their eyes (as evidenced by the proofs they brought). There is thus a real possibility that even if in their words they relied on remote pikuach nefesh, at bottom this is really a permission because of social breakdown; only, they find it hard to permit Shabbat desecration without any pikuach nefesh. So they speak of remote danger to life. Sometimes this is done without conscious awareness that this is not the true rationale for their ruling. An intuition leads them to permit, and the explanation they give themselves is that there is remote pikuach nefesh. In any case—even if I am wrong in interpreting their words—I think my permission to desecrate Shabbat without pikuach nefesh stands on its own.

As for the permission for a public body—such as a state and its institutions—to employ force and transgress prohibitions to prevent fundamental disruptions to society’s orderly functioning, one need not rely on fictions of pikuach nefesh. Therefore, operating the police on Shabbat for needs not entailing danger to life can be permitted due to the danger of social anarchy, even without invoking pikuach nefesh. It suffices that there is a concern of public anarchy. I tend to think this was also the intuition of the decisors cited in the previous column; only “the heart does not reveal to the mouth.” They do not dare (even internally) to suggest that Shabbat desecration is permitted without life danger, to innovate Shabbat desecration on sevara alone; thus, instead, they expand pikuach nefesh to the limit. But that is not really the basis of the permission, nor can it be.

In the previous column we saw the discussion of a live metal coal in the public domain, and there the possibility arose that for public needs they permit things that are not permitted for a private individual. We also saw that even if one relies on a low-probability danger to life, there remains a different treatment of the public than the individual—and that too is grounded in sevara. If so, I see no impediment to employing the same sevara without the mediation of pikuach nefesh fictions.

Righteous Without Responsibility—and Without Authority

It is important to understand that the picture I sketched is not merely a different, perhaps more candid, presentation of the same permission. This presentation has far-reaching consequences. If I am right, then it is permitted to operate the police even against disturbances that do not threaten life, so long as they undermine public order and normal living. This may sound novel, but if you think again you will see it is quite simple. Try to imagine living in a state where there is no effective police on Shabbat (except in life-threatening cases). On Shabbat, “every man does what is right in his own eyes”; anyone can steal, beat, harass, and bother whomever he can. The whole country turns into border towns. Would any of us allow such a situation? Is there a halakhic decisor alive who would not permit operating the police in such cases?

Our problem is that we have “merited” (to use R. Zilberstein’s language) to have non-Jewish or secular officers who pull our chestnuts out of the fire. If we had no non-Jews or secular people who would come even on Shabbat in necessary cases, I believe every decisor would permit calling a police force of Jews, even without invoking pikuach nefesh. Today it is easy to ignore the permission to desecrate Shabbat for public order—or hang it on fictive pikuach nefesh and forbid operating the police when there is no danger to life—because someone else does the job for us and responds also in severe nuisance cases without pikuach nefesh. We eat the cake and keep it whole. If in the State of Israel there were no active police on Shabbat for these needs, all its citizens would abandon it and move to more civilized places. I am sure that, in such a case, suddenly all decisors would discover the permission I propose here.

Similarly, if Haredi decisors had to administer the state—its economy and agriculture—there would not be one among them who would not support the heter mechirah. It is very convenient that there are “sinners” who pull our chestnuts out of the fire and care for Israel’s economy and agriculture, thus allowing us to remain righteous and stringent, clinging to our pure cruse of oil and shutting ourselves within it. When responsibility is not ours and the authority is not ours (since no one asks us, and good that it is so—admit that we all breathe easier because of that), one can be great theoreticians and stringency-mongers. But that is not a real state of affairs, nor is it correct halakhah. Halakhah must also address the case in which we have no workaround, in which others do not tend our flock.

Further Implications

Yeshayahu Leibowitz repeatedly wrote that in our times one should permit Shabbat desecration for operating the state’s foreign service and other essential services. His claim was that halakhah took shape when we had no state, and the modern concept of a state did not exist. In our day, a state cannot function within the family of nations when its foreign service is entirely closed one day a week. Problems arise for its citizens around the world, or for other states that need to contact it on important economic matters—all of which must receive some response even on Shabbat. And so too with other essential services. It is most unreasonable to disconnect ourselves entirely from the world—even absent considerations of danger to human life.

Similarly I have often thought about Shabbat desecration in hospitals. Hospitals run according to halakhah try to use non-Jews and grama (indirect causation)—“lightest first.” Physicians and nurses in regular hospitals trample the Shabbat flagrantly, with no real option to keep Shabbat properly. And yet I sense that halakhic authorities ignore this and close their eyes. We all ignore it, and they desecrate Shabbat—end of story. The few who struggle find partial solutions, but I think one cannot truly keep Shabbat in a hospital. I have long wondered how valuable all this is. A hospital must function optimally, and documentation is part of those processes. When you don’t write and record data in real time, errors occur—even absent real threat to life. In hospitals there are many cases where this touches human life in the simple sense; there it is relatively easy. But my claim here is that even what is needed for the proper functioning of the hospital, without remote life-risk considerations, still justifies Shabbat desecration—unless there is a fully reasonable and equivalent alternative. When a hospital fails to function, that justifies Shabbat desecration not only because of fear of lost lives. Proper functioning of hospitals is a condition for a functioning society.

Electricity use on Shabbat is also a good example. Many Haredim are meticulous not to use electricity produced by the electric company (relying instead on generators). This of course leads to safety issues and problems in supply. There are halakhic arguments to justify using electricity produced for essential needs (pikuach nefesh), and there too the expansion is unconvincing. Let them provide reliable generators for those institutions. We all know this is an unconvincing fiction, but it does not prevent most of the religious public from using electricity freely. If that is truly the basis for the permission, then the Haredim who do not accept these flimsy arguments and prefer a generator or a wick heater (petilya) are right. But if one assumes that an entire state cannot run without electricity and all that entails, the result is that it is permissible to operate power stations for the use of the entire public even when no lives are at stake. The supply needed for essential institutions is merely an indicator of the broader consideration of our society’s normal functioning—not the true basis for the permission. And again, were the state governed by halakhah, I have no doubt everything would be permitted exactly as today, and production would not be limited only to essential institutions. These rationales are a fiction, born of people’s reluctance to state honestly that Shabbat desecration can be permitted without life-risk. Nowadays others pull our chestnuts from the fire, so it is easy and convenient to remain in the simplistic halakhic language of pikuach nefesh.

It is important to understand that none of this means that Shabbat becomes a weekday. Private individuals continue to keep Shabbat as usual. But at the public level there must be a framework that makes this possible. That platform is provided by the public, and at that level there is justification to desecrate Shabbat to allow us to live within the framework and keep Shabbat properly within it. There are services without which the state and its institutions cannot function, and their ability to act and to respond to emerging needs is undermined. In such a case there is room to extend the permission I have described to other essential services as well. The army, courts, foreign service, hospitals, the electric company, the police, and the like are essential to our public functioning; as such, they justify Shabbat desecration, transgressions, risks, and sometimes killing. And again, were authority and responsibility in the hands of a halakhic institution, I have no doubt everyone would understand this and permit it. But we find it comfortable today to entrench ourselves in halakhic piety and criticize those who do the work for us—to forbid and ban things with a wink (sometimes unconscious), relying on others to pull our chestnuts out of the fire.

Leibowitz’s claim was grounded in sevara alone, without halakhic argument, and therefore it was easy to dismiss it or ignore it. The halakhic basis for Leibowitz’s claim has been presented in this column; yet we must remember that sevara lies at the foundation of all this. We saw in the previous column that even the basic permission to transgress in a case of pikuach nefesh is grounded in sevara, so there is no problem that its expansions and qualifications are also grounded in sevara. In my assessment, anyone with his eyes in his head shares this sevara; only there is no need to put it on the table so long as no one asks us and no one awaits our decisions. Without authority and responsibility, someone will act and do what is necessary without a permission. Therefore decisors continue to speak in the language of pikuach nefesh in the narrow sense, but that forces them to problematic conclusions that do not truly hold water. In my eyes this is absurd, and the discourse should be changed—even if this will not change the reality, for today everything is done without waiting for halakhic permission (and good that it is so; hence everyone closes eyes and remains silent), and this even when the actors are religious (police officers or physicians). Halakhic honesty requires putting matters candidly on the table and deciding without winks, without ignoring, and without relying on transgressors.

“Shall we act merely because we imagine?!”

A natural question is that even if we accept the sevara I described, at most it describes a need—it does not provide a genuine basis for such a sweeping permission. One might ask, “Shall we act merely because we imagine?!” (see Gittin 19a and elsewhere). Is such a sevara enough to permit Shabbat desecration?

I must reiterate that the very permission to transgress because of pikuach nefesh is grounded in sevara. The necessity here is not merely a need but a value, which justifies Shabbat desecration and other prohibitions. Fear of a breakdown of public order is not less than fear for an individual’s life, and the sevara that permitted Shabbat desecration for the latter permits it for the former. Beyond that, we can see in other places the use of such sevarot to permit Shabbat desecration (and other prohibitions). I will now bring a few examples.

Danger to a Limb

For example, in Avodah Zarah 28b we find a statement of Rav:

Rav said: An eye that has come loose may be treated with kohl on Shabbat. They initially thought this applied only if the medication was ground before Shabbat, but grinding on Shabbat and carrying it through the public domain is not [permitted]. A certain scholar, R. Yaakov by name, said to me from the mouth of Rav Yehuda: even grinding on Shabbat and carrying it through the public domain is permitted.

An eye that is slipping out may be treated on Shabbat, but not by grinding medications or carrying them through the public domain. Rashi explains this is because there is no pikuach nefesh. But Rav Yehuda permits even Torah-level prohibitions. Seemingly, he permits Shabbat desecration absent danger to life.

We also find there further on in the name of Shmuel:

There was a maidservant in the house of Mar Shmuel whose eye was inflamed on Shabbat. She cried out, and no one paid attention; the eye burst. The next day Mar Shmuel went out and taught: An eye that has come loose may be treated with kohl on Shabbat—for the channels of the eye are connected to the heart’s understanding.

Shmuel permits Shabbat desecration because of danger to the eye. Seemingly he ignores the lack of danger to life.

However, the Rishonim dispute the basis for the permission—what “the channels of the eye are connected to the heart’s understanding” means. Rashi comments:

“Even grinding and carrying…”—as we say later, “the channels of the eye are connected to the heart”; the light of the eye is intertwined with and attached to the chambers of the heart.

Simply put, he means that, in the end, there is danger to life because the eye is somehow linked to the heart; therefore, Shabbat desecration is permitted to save it.

But Tosafot there (“Shuryanei”) write:

“The channels of the eye are connected to the heart’s understanding”—Rashi explains: the light of the eye is dependent on the chambers of the heart. But it seems to me: it is dependent on the understanding of the heart, i.e., a person’s sight depends on the understanding of the heart. “Shuryanei” with a shin as in “Ashurenu velo karov” (Num. 24), or “Suryanei” with a samekh from the language of “survey his assets” (Chullin 105a). “Be’uvneta” with a bet—understanding—as we say in the chariot (Megillah 24b): “He sees with the understanding of the heart.”

It seems that, in their view, there is no danger to life; rather, without the eye a person’s understanding diminishes. The commentators indeed wondered: how does that permit Shabbat desecration? Where is the danger? The answer, on our approach, is simple: a blind person is like one dead; a person without an eye has a very low quality of life. Such a significant injury justifies Shabbat desecration just like pikuach nefesh. Here we have sevara alone permitting Shabbat desecration even absent danger to life.

Incidentally, the halakhah rules that one does not desecrate Shabbat for danger to a limb. That sharpens the question even more: why for the eye, yes? It seems that sevara treats the eye as a vital organ equivalent to loss of life, and therefore this justifies Shabbat desecration. The Meiri writes:

Rather, even for danger to a single limb one desecrates [Shabbat]; and they said “the channels of the eye are connected to the heart” only to indicate that loss of a limb’s function is close to occurring.

He learns from here that any danger to a limb justifies Shabbat desecration, and the eye is just an example. This is an even stronger proof for my view, for the sevara expands to any limb; and again, solely by sevara we permit Shabbat desecration without danger to life.

Again: Pikuach Nefesh as Fiction

I note that some decisors permit Shabbat desecration for danger to a limb, even though the Meiri’s view is not the halakhah. For example, the Tzitz Eliezer (vol. 8, sec. 15—“Kuntres Meshivat Nefesh,” ch. 10) writes that nowadays any danger to a limb entails concern for pikuach nefesh. This is, of course, very strained—for why would that be true specifically today? Seemingly, since medicine is more advanced, it should be easier to save people who lost a limb. This is again a fiction expanding pikuach nefesh to an implausible distance, apparently used to permit what sevara compels us to allow. On my approach, there is no need for that. It suffices to say that this is a sufficiently critical state—like pikuach nefesh—to permit, without hanging it on far-fetched life-risk considerations.

A similar consideration arises regarding the Talmudic rule not to extinguish a fire on Shabbat—and not even to save, lest one be preoccupied and come to extinguish it (which itself is only rabbinically forbidden when he does not need the charcoal). The decisors wrote that nowadays we extinguish because of the danger to neighbors. In my assessment they would permit it even for one whose neighbors are distant, for that is not really the root of the permission. Its true root is that it is intolerable to demand that a person lose all his property, quality of life, and home because of a concern that he might stumble into a rabbinic prohibition (!!). Therefore, I think, discourse that hangs this on pikuach nefesh is a fiction.

Spiritual and Psychological Pikuach Nefesh

A similar question arises regarding Shabbat desecration for “spiritual danger” and “psychological danger.” Spiritual danger: non-Jews abducted my son or daughter; I must desecrate Shabbat to save them, and we will assume for the discussion that their lives are not endangered. May I desecrate Shabbat to save them? The Beit Yosef brings a dispute between Tosafot and the Rashba on this. This is not the place to elaborate (see Rabbi Yisraeli’s article in Techumin vol. 1); for our purposes, what matters is that, at least according to some views, one permits Shabbat desecration to save a Jew from apostasy even without danger to life. I am certain that if such a question arose in practice, no decisor would rule to forbid. One can speak of this as a kind of kal vachomer (if for the body we desecrate Shabbat, then certainly for the soul), yet we remain in the realm of sevara.

Perhaps this can be compared to the question of the Warsaw Ghetto Uprising. As is known, there was a debate whether it was justified to launch a revolt that would certainly fail and all the rebels would be killed. This is a kind of suicide, seemingly without halakhic permission. It would be better not to revolt and try to survive; whoever manages—gains. In the case of revolt, everyone will likely die. Indeed there was a debate: the Zionist movements tended toward revolt for national honor and to prevent the disgrace of Jews being slaughtered unresisting “like sheep to the slaughter.” The prevalent rabbinic opinion, especially among Haredim, opposed this (see a survey here); some even said this was an alien spirit—emotion instead of cold halakhic thinking. In a sense, in their eyes this was nationalism in the category of “the statutes of the gentile.” But Rabbi Zemba apparently supported the revolt (there is debate, and Haredim tend to portray his view differently), seeing the consideration of honor as legitimate. That is not a consideration to permit Shabbat desecration, but to permit suicide or self-sacrifice—and as we saw, there is similarity among these considerations. In Rabbi Zemba’s judgment, sevara sufficed to permit such “suicide” even without a clear halakhic source.

A similar question arises regarding Shabbat desecration due to fear of psychological harm (loss of sanity, mental illness, etc.). On this I do not know of a clear discussion (I imagine there is one), aside from an article by Rabbi Dani Nikritin (a former student). He consulted me while writing, and I told him that, in my opinion, one need not rely on pikuach nefesh considerations. Loss of sanity is certainly more critical than loss of a limb—or even an eye. That sevara suffices to permit Shabbat desecration. He told me he saw rationales that invoke danger to life, but again they are strained and unconvincing. I have no doubt that the permission is grounded in the severity of the expected harm, and the talk of pikuach nefesh is only a fiction invoked due to reluctance to permit without it.

Conclusion

Returning to Shabbat desecration for the public’s orderly functioning: it seems clear to me that the erosion of public personal and economic security on Shabbat is no less important than the danger to an individual’s eye or limb, or the danger of an individual’s spiritual loss. If all these are permitted by sevara even without pikuach nefesh, so too with social breakdown. In general, the degree of severity of a prospective harm is circumstance- and culture-dependent. Therefore, the need that justifies Shabbat desecration is not necessarily dictated by what the sources and precedents set. If we have a need that appears critical enough to us, it justifies Shabbat desecration—exactly as the Sages did throughout the generations. The fictions that expand pikuach nefesh to remote scenarios are not really convincing, and in my view, unnecessary.

In the next column I will continue to ground these considerations and the picture I have described here.

[1] Incidentally, for a similar reason I disagree with those who are particular not to sing verses in Hallel in a way that creates duplication. This is how a public recites Hallel.

[2] See on this my article, “The Problem of the Relationship Between the Individual and the Collective and the ‘Defensive Wall’ Dilemma”; note 15 in the book Two Wagons and a Balloon; my article in Mechaneikh, and more.

[3] I discussed several of them in the sources cited in the previous note.