The Kite Pursuers — Between Right and Left (Column 151)

With God’s help

On Wednesday of last week a dispute between two cabinet members was published regarding striking those who launch explosive and incendiary kites. Yoav Gallant argued that there is no justification or possibility for harming eight-year-old children who launch such kites. In his view this is both cruel and ineffective. This was repeated by the former head of the Shin Bet, Yaakov Peri, in an interview I heard the following day on the radio. By contrast, it was said there, Naftali Bennett expressed an emphatic position in the opposite direction. He argues that these are not eight-year-old children (I did not understand whether he meant this as a factual claim—that these are not children—or a normative one—that these children are not innocent), and that these kites are not children’s toys but instruments of killing, and therefore they should be treated as terrorists in every respect and shot in order to kill.

Once Again on Spurious Correlations

In the remarks of Gallant and Peri, two types of argument arose: inefficiency (Hamas are just looking for this) and immorality (it is cruel). I thought to myself that once again this was a moral-tactical dispute that, for some reason, is divided between right and left. Although we have already grown used to it, this is really not a necessary division. An answer to a moral-tactical question ought not to be connected to hawkish or dovish political positions. But the fact is that it is divided that way, or at least there is a clear correlation (Gallant is not a man of the left, and indeed the focus of his remarks was effectiveness rather than morality). Those who hold a left-wing political position oppose harming the kite-launching children, and those on the right support it. I venture to estimate that right-wingers who oppose it (there are such people, like Bibi and Lieberman) probably oppose it because of international repercussions (considerations of utility) and not because of moral considerations. Why, really, did this correlation arise? Why do we not find people on the right who oppose it on moral grounds and people on the left who support it and do not see it as a moral problem?

In Column 5 I discussed the foundations of the dispute over targeted killings, and argued that there is indeed a logic to the fact that it is waged between right and left. I showed there that at bottom this is an ontic dispute regarding the existence of collective entities (whether a public is an actually existing entity, or whether this is a fiction and what exists is only the individuals who make up the collective). Here there is a similar dispute, but nevertheless a different one. I will try to show here that the ontic component in this dispute is marginal, and that its main element is really a lack of thought.

The Absence of Discussion on the Matter Itself

It is worth noting that here too, as in most cases, there is no real discussion of the question itself. One declares this and another declares that, and there are no arguments. For one person it simply is not done to harm them (cruelty), and for the other it simply is not done not to harm them (a pursuer; if someone is shooting at you, you kill him). For one person it is “proportionate,” and for another it is “disproportionate.” But it is impossible to conduct a discussion when neither side gives arguments. Each one plucks at the strings of his counterpart’s emotion or fear and tosses out a general declaration (cruelty; they are shooting at you) without success, and that is all. This discourse consists mainly of flinging emotions around (How can you preach harming an eight-year-old child?! It would never occur to me to harm eight-year-old children! etc.) and not arguments. Therefore, before I address this correlation, I will try to enter a bit into the discussion itself, because this too will cast additional light on the correlation. But first, one more preliminary remark.

Is There a Jewish Morality?

This discussion prompted reflections in me on another interesting aspect. I repeatedly argue that there is no such thing as Jewish morality. There is Jewish law unique to Jews and Judaism, and it binds only them. But morality, in its essence, is universal, and therefore it is valid and binding for all human beings in the same way and according to the same rules. My claim is that any norm that addresses Jews and Gentiles differently cannot belong to morality (but rather to Jewish law or to something else).

And yet, in our topic it seems that the dispute is indeed related to the question of Judaism. The clear feeling is that the closer a person is to Jewish law, the more he will tend to justify harming the kite-launching children, and the more universalist he is, the more he will tend to forbid it. Of course, our universalists will always say that this is the Jewish morality that forbids harming the innocent (they also say that their Judaism is the morality of the prophets, that is, universal morality, democracy, the rule of law, the attitude to the stranger and the foreigner and the weak, the pride parade, support for Eritreans and abortions, women serving in the army, and the rest of the fashionable slogans), but it is obvious to everyone that this is empty nonsense. This is what morality requires in their view, and it is clear that even if the Torah said nothing about any of it, this is what they would think. The appeal to Judaism (even in cases where you can find such a connection) is empty lip service.

This raises the question whether what we really have here is Jewish morality versus universal morality. Is there, after all, such a creature as “Jewish morality,” distinct from universal morality? I think this is a mistaken inference. I am not claiming that there are no differences between the moral positions of Jews and of others (although even that is fairly true). That is an empirical question, and if you look you will see that there are differences (or at least correlations between moral positions and Jewish-halakhic commitment). The question is whether the rules of morality are Jewish in the sense that they are true for Jews and not for others. What I claim is that even if I have a moral position hewn from Jewish sources (and I am not sure that I do), it is supposed to apply to all human beings. In my view, whoever thinks otherwise is mistaken. Moreover, I claim that even without the Torah, if he had thought correctly, he should have arrived at that moral conclusion, and I really can ground my claims in general reasoning (and if not, then usually my Jewish interpretation would also change).[1]

Moreover, my claim is that a moral position is not based on Jewish sources, the Hebrew Bible (Tanakh), or halakhic decisors. If I think that X is moral, I will interpret the verses of the Hebrew Bible accordingly (the halakhic sources I do not need to interpret, because in my opinion they do not speak about morality but about Jewish law). I do not deny that my moral thinking is nourished by Jewish law and by my learning, for a person is shaped by the landscape of his birthplace. But this is a matter of unconscious influence, as is the case with each of us. In the end, a verse or a legal rule will, for me, in most cases, not constitute a moral argument (but at most a halakhic one).

Therefore, in the issue of the kite-launching children as well, I will not bring verses and halakhic sources here as sources of authority, for several reasons. First, because the state does not conduct itself according to Jewish law. Second, because this discussion and dispute belong to the moral domain and not the halakhic one, and as such they ought to be conducted on the moral-universal plane. My resort here to halakhic sources and terms will be only for the sake of the moral discussion; that is, for our discussion these will not be authoritative sources but sources of inspiration. As we shall see, the halakhic discussion here runs completely parallel to a moral discussion that could have taken place anywhere in the world.

The Two Poles and the Framework of the Discussion: the Law of the “Pursuer” and Saving Oneself at the Cost of Another’s Life[2]

The discussion of these issues is conducted between two principled poles. The first pole is the prohibition on one person murdering another, even to save himself at the cost of another’s life. If Reuven threatens Shimon and demands that he kill Levi, Shimon may not submit. He must die rather than kill Levi, and this is the rule of he must be killed rather than transgress with respect to murder. At the basis of this rule lies a logical intuition: Who is to say that your blood is redder? Perhaps that man’s blood is redder!, that is, Shimon’s blood is no redder than Levi’s blood, and therefore he may not take Levi’s life in order to save his own. It is no accident that this is a logical intuition and not a verse. It seems to me that this is accepted in most legal and moral systems in the world. There are differences (including in Jewish law) regarding the punishment due to someone who transgressed and did this, but as far as I know the prohibition itself is agreed upon.

By contrast, there is the other pole, the law of the “pursuer.” When Reuven is pursuing Shimon in order to kill him, Levi may (indeed is obligated to) kill the pursuing Reuven in order to save Shimon. For this rule, unlike the previous one, sources are indeed brought (see, for example, Maimonides, Laws of Murder 1:8 and elsewhere), but it is quite clear that it too is based primarily on logical intuition. Therefore every legal system in the world has such a rule as well, although they do not require verses.

Why can the pursuer not claim against the rescuer that he may not kill him because the blood of the pursued is no redder than his own? Moral intuition says that there is no such claim, because the one who created the situation must bear the consequence and pay the price to resolve it. When the person who will be harmed is a third party, there is no permission to harm him in order to save oneself or to save another (this is saving oneself at the cost of another’s life, or he must be killed rather than transgress with respect to murder). But if harm to an involved party is required—namely, the one responsible for creating the situation—it is permitted and obligatory to do so.[3]

The discussion of all ethical questions in these areas is conducted between these two poles: every act of killing that is not justified by the law of the pursuer falls under the prohibition of murder. This includes saving oneself at the cost of another’s life, because once you have no permission to kill you are immediately judged as a murderer. Only pursuit justifies an exception or qualification to the prohibition of murder, and therefore this is the framework within which the discussion is conducted.

You have surely noticed that it was important for me to show that the entire discussion, at both of its poles, takes place on the moral plane. The sources and halakhic terminology are only for illustration, and the fact is that the two foundations of the discussion—the law of the pursuer, and the law of murder and of saving oneself at the cost of another’s life—are accepted by almost all human beings. On this particular topic it seems that there is no difference between Jewish law and morality (perhaps this is a moral fragment that entered into Jewish law, because Jewish law had nothing to add beyond morality. It is a halakhic lacuna that was filled by moral rules).[4]

The Nature of the Law of the “Pursuer”

At first glance, the law of the pursuer is grounded in the duty to prevent a crime and protect an innocent person. But some commentators see in it a punitive dimension as well (see, for example, Afikei Yam, vol. 2, sec. 40). Thus, for example, the Talmud (Bava Kamma 117b) says that if a pursuer broke vessels during his pursuit, he is exempt from paying for them because he is liable to death (under the law of the “pursuer”), and one who is liable to death does not also incur liability for monetary damages (he is subject only to the graver of the two penalties). From here we see that the permission to kill the pursuer also contains a punitive dimension.

Admittedly, this is a halakhic principle, but it seems to me that it has a basis in moral thought as well. The idea is that the pursuer, by the very fact that he intends to kill the pursued, is in principle a murderer, and a murderer is liable to death. Except that apparently we ought to wait until he actually murders and thereby becomes liable to death. But of course there is no logic in that, because then the pursued will also pay with his life. Therefore Jewish law (and morality) tells us to anticipate matters and kill him already now, before the murder. We give him the punishment in advance so that only he will die and at least the pursued will be saved. Even in a legal system that does not impose the death penalty on a murderer, there is still a logic that says that although it is not right to punish one person in order to save another, if his act warrants punishment, there is a logic to advancing the punishment and even intensifying it in order to save the life of the pursued. If the pursued is about to lose his life, then it is justified even to impose a “death penalty” on the pursuer in order to save the pursued. That is, there is a logic in seeing a punitive dimension in the law of the “pursuer” beyond the duty of rescue.

Rashi in Sanhedrin, by contrast, argues that the pursuer should be killed because by killing him we also save him from a transgression (it is done for his own good as well). When it is written that one may to save him even at the cost of his life, the intention is to save the pursuer, not the pursued. In the background of this lies once again the question of what permission there is to kill Reuven in order to save Shimon (even though Reuven is a pursuer). To this he explains that it is not done only for Shimon’s sake but also for Reuven’s own sake. It follows by implication that were there no benefit here to Reuven himself, there would be no permission to kill him in order to save Shimon (because his blood is no redder than Reuven’s). This is an argument that arises from the same difficulty, but it is formulated more subtly. Rashi is not speaking about punishing the pursuer but about saving him from transgression.

An Implication: a Minor as a “Pursuer”

From here we can understand the dispute of the Amoraim regarding a minor “pursuer.” The Talmud in Sanhedrin 72b states that even with a minor who is pursuing, he is saved even at the cost of his life—that is, it is permitted and obligatory to kill him. This is also how all the halakhic decisors rule. What is novel about this? Clearly, in the background lies the punitive conception of the pursuer. A minor is not legally liable and his transgression is not a transgression, and therefore there was room to argue that one should not kill him in order to save the pursued. Notice that the two arguments we saw above do not exist in the case of a minor. He is not liable to punishment for his deeds, and his act of murder is not a transgression either (for he is not yet obligated in the commandments). Therefore, with respect to him there is room to say that there is no permission to kill him in order to save the pursued (and he himself is not being saved from anything). And yet the Talmud teaches—and as noted, so too it is ruled in Jewish law—that the law of the pursuer applies to him as well. The same is of course true of a mentally incompetent person who is pursuing.

At first glance, this means that in the law of the pursuer there is no punitive dimension, only a preventive one. Alternatively, it may be that in the case of an adult pursuer both dimensions exist, but in the case of a minor only the preventive dimension exists, and that suffices to justify killing him (it may be that when the minor pursuer breaks vessels in the course of his pursuit he will not be exempt from paying for them when he grows up). This can be explained as follows: the pursuer (at least if he is a minor or mentally incompetent) created a situation that is dangerous to a certain person. Now there are two possibilities—not to harm him, and that person will die; or to harm him so that he will die and the other person will live. Since the pursuer (even if he is a minor or mentally incompetent) created the situation, he must bear the consequence. Although the minor or the mentally incompetent person is not guilty, it is permitted, and perhaps necessary, to kill them, because their fate brought it about. They are the source of the problem, and therefore they must bear the consequence and pay the price required for its resolution. And from another angle: true, they are not guilty, but the pursued certainly is no more guilty than they are, so why should he bear the consequence and pay the price?!

But a third possibility is also conceivable. Perhaps even in the case of a minor pursuer there is a punitive dimension in addition to the preventive one. It may be that a murder committed by a minor is indeed a transgression, except that he is exempt from punishment,[5] and therefore the law of the pursuer applies to him as well.

Back to the Current Dispute

It is important to understand that the claim that even with respect to a minor or a mentally incompetent person there is permission to harm in a situation of pursuit is also not unique to Jewish law. Everyone understands that if a small child or a mentally incompetent person (someone seized by a murderous frenzy) is holding a weapon and shooting at people in the street, it is permitted and obligatory for us to kill him. Why, after all? He is not responsible for his actions and no punishment applies to him. The reason is that there is here the preventive side, and as we saw above perhaps also the criminal side (except that he is exempt from punishment because he is acting under compulsion).

If so, the claim of Gallant and those who agree with him seems on its face unfounded. If launching incendiary and explosive kites is not pursuit, then it is also forbidden to kill an adult who does so. And if it is indeed defined as a situation of pursuit, then it is permitted to kill even a minor who does it. From where, then, does the claim suddenly arise that these are minors and therefore there is no justification for killing them?

A Non-Halakhic Perspective

I will say in advance that, in my impression, the punitive conception of the law of the pursuer is not purely halakhic; that is, it has a place in general moral conceptions as well. It seems to me that from here arises the claim of Gallant and those who share his opinion that the minors who launch kites should not be harmed, although by implication it is clear that they agree that in the case of adults in such a situation we could, and perhaps also should, harm them. I have already remarked that this is apparently a problematic opinion, for if such a situation is not within the category of pursuit, then it would be forbidden to kill even adults who launch kites; and if it is pursuit, why not kill minors?

According to the principle of charity, I will allow myself to be generous toward those who argue this way, and assume that some coherent doctrine underlies their remarks. Perhaps they think that this is a case of doubtful pursuit (because in all the cases until now the kites have not taken lives), and in such a situation there is room to distinguish between an adult who acts out of his mature and considered judgment, and a minor who is not responsible for his actions. The adult who does this is responsible for his actions, and therefore there is justification for harming him even in a situation of doubtful danger, because there is here a punitive dimension. In the formulation from above: if he made a decision to endanger me, then he is the one who must bear the consequences and pay the price in order to solve the problem. Even if the risk he created is not yet certain, there is no justification for my taking the risk because of his decision. Let him bear the consequences, for he could have chosen not to create this situation. By contrast, a minor who does such a thing does not do it out of mature judgment (he has no criminal responsibility). Therefore, although even in the case of a minor the law of the pursuer exists (at least in the preventive sense), so long as he is not directly and certainly endangering life there is no justification for harming him solely on preventive grounds (because it is not certain that prevention is what is at issue). Responsibility falls on him only where he creates a certain danger, and then he must bear the price (even without criminal responsibility; his fate brought it about).[6]

What is the basis behind these things? This position clearly reflects a conception according to which pursuit has a punitive dimension and not only a preventive one. Therefore, when the “pursuit” creates only a doubtful danger (a rather remote doubt), without the punitive dimension there is no justification for harming the “pursuer.” But in the case of an adult there is also a punitive dimension, and therefore there is justification for harming him even in a situation of doubtful risk. Notice that this claim arises out of general moral considerations, without any connection to Jewish law. This is exactly what I said: even in general morality there are roots for the conception that the law of the pursuer has a punitive dimension as well.

Conclusions

First, I freely admit that when I began writing this post I intended to present the position of Gallant and his associates as complete nonsense. There is no considered judgment and no coherent doctrine here, because it is impossible to justify a prohibition on killing a minor pursuer, and if there is no pursuit here then there is no permission to kill adult kite-launchers either. But in the course of writing it became clear to me that this is not such great nonsense after all.

At the end of the day I still support Bennett’s position, since in my view we are not dealing here with the pursuit of a single individual, in which case there might perhaps be room for the considerations I presented above, but with a social phenomenon of the Palestinian collective (part of it directly and part of it through indirect support). In such a situation other considerations apply, and there is certainly justification—and it is proper—to kill every kite-launcher, even if the danger to life is doubtful. Moreover, there is in such killing and in such an aggressive policy an element of preventing future kite warfare and preventing future killing of Jews and Arab kite-launchers alike (policy considerations). Beyond this, in my view even pursuit of property justifies killing (see here), and that certainly exists here.

It is precisely the fact that I partially changed my mind that strengthened my claim that our public discourse is conducted in an absurd and superficial way. Each side recruits all the arguments to its own side and is unwilling to consider a complex position with reasons for and against, and only then arrive at a bottom line. Beyond that, the discussion is conducted with instinctive and emotional belligerence rather than on the basis of systematic reasoning. At most one hears general and vague arguments like “yes, proportionate” or “not proportionate,” “they are murderers” or “they are eight-year-old children, and this is cruelty,” without grounding them in orderly considerations.

No wonder these disputes very quickly move into emotional territory. One side is a beautiful-soul leftist who loves Arabs, or at best an inconsistent idiot, and the other is a fascist nationalist and a child murderer. Each sees his opponent as an irrational sentimentalist, since neither of them uses arguments. If the discussion is conducted on the basis of arguments, each side understands the other’s arguments and perhaps even takes them into account and changes or moderates his position (Heaven forfend). Thus a question of morality and of life-and-death judgment becomes a dispute between right and left, although there is not much connection between those two planes of discussion (see above). When there are no arguments, decisions are handed over to basic sentiment (= primordial, primitive sentiment). This is the connection between the two questions presented at the beginning of the column: the absence of substantive considerations in the dispute is precisely the reason that the battle lines run, in simplistic fashion, between right and left.[7]

One must understand that conducting the dispute in this way is not only a matter of manners and etiquette. The decisions that are reached in a measured and thoughtful way are expected to be more correct and better; the other positions will be more understandable to both sides, and therefore our attitude toward those who hold these positions can and should also be different. These are no longer people swept away by nationalist-fascist emotion and child killers, and those are not Arab-lovers (Heaven forfend) and traitorous haters of Israel. Sometimes we forget that substantive argument is also an option. As stated, I myself intended here to write a venomous post at the expense of the position of Gallant and his colleagues, and in the course of laying things out I found myself understanding their position better (though I do not agree with it).[8]

And one final remark. Clearly, after setting the conceptual and theoretical frameworks, there is still room for more general and amorphous considerations (such as considerations of proportionality). The theoretical discussion defines the framework but does not replace the need for the judgment of moral intuition and conscience; rather, it now takes place within that framework. Thus, for example, even if we reach the conclusion that launching such kites is pursuit, it still would not be reasonable to kill a thousand people in order to hit one kite-launcher who endangers property and, with only a slight chance, human life as well. That is a consideration of proportionality that does not derive from the theoretical framework, but it certainly has an important place in the final decision. The advantage of the framework of discussion I have outlined here is that considerations of proportionality receive their place within the framework and do not become the whole picture. In this way one can use them more thoughtfully and reasonably, understand one another’s position, and avoid being dragged into emotional, biased, and irrational positions and judgments.

[1] This of course does not mean that I am necessarily right. I can make mistakes in moral reasoning like in any other kind of reasoning. But as long as, in my view, X is immoral, then as far as I am concerned this binds all human beings, and whoever thinks otherwise is mistaken. If it becomes clear to me that I was mistaken—I will retract. But then my morality will again be universal and binding on all human beings, and anyone who says otherwise will be mistaken.

[2] See also my discussion of this in Column 5.

[3] There are several explanations for this among the medieval authorities (Rishonim) and later authorities (Acharonim), but this is not the place.

[4] There are such things, like coercion to avoid the trait of Sodom and the like. It is clear that if “religious” Jewish law has nothing to say in a certain domain, there is room to fill the lacuna with moral considerations. After the sages do this, it enters the framework of Jewish law like any enactment or decree.

[5] And perhaps he falls into the category of those liable to capital punishment for inadvertent acts, or even beyond that, regarding whom the rule of he is subject only to the graver of the two penalties is also stated (see Bava Kamma 35a and elsewhere). The Talmud itself there in Sanhedrin connects the discussion to a pursuer who acts inadvertently (for example, without warning).

[6] There is room for the reasoning that even at a 50% risk the minor should bear the price, for the potential victim certainly need not bear it more than he does. But with a remote risk like the one under discussion, there is a logic to saying that there is no justification for killing a minor.

[7] At the beginning of the column I mentioned what I wrote regarding targeted killings in Column 5, where I showed that between right and left there is an ontic dispute. Something of that also plays a part in the present case, but I will not enter into it here.

[8] I am of course not claiming that they really made all these considerations and thus arrived at their position. Probably that is not the case, and that is unfortunate. If they had formulated their position in this way, perhaps they too could have changed it, or at least presented it in a more reasonable and thoughtful way and improved our public discourse.