Be Killed Rather Than Transgress (Column 567)
In Parashat Emor there appear three warnings not to profane the Name of the Lord. The first (21:6) warns the priests to preserve their holiness. The second (22:2) warns them against profaning the sacred things, and the third (22:15) warns all Israel not to profane the sacred things. All of these are presented as a warning not to profane the Name of the Lord. Thus, for example, the second verse warns:
“Speak to Aaron and to his sons, that they keep themselves away from the holy things of the children of Israel, and that they do not profane My holy Name, which they sanctify to Me; I am the LORD.”
From the continuation of the verses it emerges that this warning, in its plain sense, also concerns the profanation of sacred things and of the priesthood, but it is always presented as a profanation of the Name of the Lord.[1]
Kiddush Hashem and Chillul Hashem
At the end of the chapter there is another warning with similar wording (ibid., 22:31–33):
“You shall keep My commandments and do them: I am the LORD. And you shall not profane My holy Name; and I shall be sanctified in the midst of the children of Israel; I am the LORD Who sanctifies you, Who brought you out of the land of Egypt to be your God; I am the LORD.”
Here the Sages understood that this refers to the prohibition of Chillul Hashem and the positive commandment of Kiddush Hashem as such (and not merely the profanation of sacred things). One of the principal implications derived here is the duty to give up one’s life so as not to profane the Name of the Lord (or in order to sanctify it).
Thus Maimonides (Rambam) writes in the Book of Commandments, Positive Commandment 9:
“The ninth commandment is that we are commanded to sanctify [God’s] Name, as He said, ‘And I shall be sanctified among the children of Israel.’ The essence of this commandment is that we are commanded to publicize this true belief in the world and not fear any harm. Even if a powerful coercer arises against us and seeks to force us to deny the Most High, we must not listen to him; rather, we hand ourselves over to death and do not mislead him into thinking we have denied, even if in our hearts we believe in the Most High.”
As is well known, this mitzvah includes additional obligations (to live for Kiddush Hashem and not only to die for it), but we will not address them here. We will focus here on the obligation to give up life for the three cardinal sins, which is the main discussion in the Talmud and the halakhic decisors regarding the laws of Kiddush Hashem.
The Three Cardinal Sins
The Talmud in Sanhedrin 74a cites a baraita:
“Rabbi Yoḥanan said in the name of Rabbi Shimon ben Yehotzadak: They took a vote and resolved in the upper story of the house of Nitza in Lodg that for all the transgressions in the Torah, if one is told, ‘Transgress and do not be killed,’ he should transgress and not be killed—except for idolatry, forbidden sexual relations, and bloodshed.”
That is, saving life overrides all commandments in the Torah, except for the three cardinal sins: idolatry, sexual immorality, and murder. The Gemara then discusses the sources for this ruling. It first brings that Rabbi Yishmael disagrees and holds that for idolatry there is no rule of “be killed rather than transgress”:
“Is it so that idolatry is not [overridden by saving life]? But is it not taught: Rabbi Yishmael says: From where do we know that if they said to a person, ‘Worship idolatry and do not be killed,’ that he should worship and not be killed? It is said (Leviticus 18:5), ‘You shall live by them,’ and not die by them. Could this even be in public? Scripture says (Leviticus 22:32), ‘You shall not profane My holy Name, and I shall be sanctified…’”
The halakha does not follow him; therefore, it is accepted that there are three cardinal sins that are not overridden by saving life.
The sugya then brings the sources for “be killed rather than transgress” regarding sexual immorality and murder:
“Sexual immorality and bloodshed—[we learn] like Rabbi, as it is taught: Rabbi says (Deuteronomy 22:26), ‘For as a man rises against his fellow and murders him, so is this matter.’ What do we learn from the murderer? This came to teach and ends up being learned [in return]: it juxtaposes murder and the betrothed maiden—just as regarding the betrothed maiden one may save her even at the cost of the pursuer’s life, so too one may save [a victim] from a murderer even at the cost of his life; and it juxtaposes the betrothed maiden to a murderer—just as with a murderer one must be killed rather than transgress, so too with the betrothed maiden one must be killed rather than transgress.”
“And regarding the murderer himself—whence [do we know]? It is logical: There was a man who came before Rava and said to him, ‘My master of the village told me: Go kill so-and-so, and if not I will kill you.’ [Rava] said to him, ‘Let him kill you rather than you kill. Who says your blood is redder? Perhaps the blood of that man is redder.’”
Thus, for murder, the rule of “be killed rather than transgress” is learned from logic: your blood is not redder than his. Sexual immorality is equated to murder.[2] The Gemara later explains that in a time of religious persecution one must give up life even for minor laws and customs, but we will not enter that here. Rambam discusses Kiddush Hashem and Chillul Hashem in chapter 5 of Hilchot Yesodei HaTorah, where he codifies all these laws.
A Fundamental Difference Between Murder and the Other Two Sins
There is a substantive difference between the rule of “be killed rather than transgress” in murder and that same rule in sexual immorality and idolatry. It is commonly thought that the reason saving life does not override these three is their great severity. That is indeed so regarding sexual immorality and idolatry; but with respect to murder, that is not the full picture.
In Column 291 I cited Rashi’s view that even harming another’s property is not overridden by saving life: “A person may not save himself with his fellow’s property.” There I brought that the author of Binyan Tzion extends this further and rules that this applies to any infringement of another’s rights. I explained that the prohibition against killing another to save oneself is not based solely on the severity of murder, but on the very fact that it is an injury to another (what I call there and elsewhere “territorial considerations”). Infringing on another’s rights is entering his domain, and within that domain only the rights-holder may make decisions—no one else. This is so even when the other has full halakhic justification; that is, even if his decision to waive his right would be halakhically correct, still the only one empowered to make it is the rights-holder himself, and no one else. Hence, if I need to damage another’s property to be saved, indeed the other is obligated to spend money to save me, and if he does not he is a wrongdoer and God will reckon with him. Yet the decision remains his; I cannot make that decision for him. See the elaboration there (and also in Column 562).
I now wish to draw attention to the implication (which was less explicit there). The reason I may not violate another’s rights is not the severity of the prohibition to do so. If the problem were simply severity, then the rule would apply only to killing another, since murder is one of the three cardinal sins. But harming his property or other rights, in terms of severity, is a regular prohibition like any other, and therefore, if the discussion were only about severity, it should be overridden by saving life. It overrides saving life because the refusal to override is not based on severity but on the fact that this is someone else’s domain (an infringement of a person’s rights). This, of course, is true of any infringement of another’s rights, not only of his life.
This also resolves the Rishonim’s question on Rashi: why were such prohibitions not listed among the three cardinal sins that are not overridden by saving life? Why not add theft, damage, humiliation, etc.? According to our approach, there is no problem: that list includes only those prohibitions not overridden because of their severity (the three “cardinals”). The prohibitions under discussion here (damage, theft, humiliation) are not overridden even though they are not so severe. They block saving life for a different reason, not because of severity; therefore they were not listed among the cardinals.
The Difference Between Murder and Other “Territorial” Prohibitions
Note that this means the prohibition of murder blocks saving life for two distinct reasons: both because of its severity and because it constitutes an invasion of another’s domain (a violation of his rights). In this sense, the extension of Rashi and the Binyan Tzion is not complete: theft or damage is not overridden by saving life only because it is an incursion into another’s domain. The intrinsic severity of those offenses is not such that, by itself, it would override saving life. By contrast, murder is not overridden by saving life both because it is another’s domain and because it is a cardinal transgression (like idolatry and sexual immorality).
The rationale the Gemara gives for “be killed rather than transgress” in the case of murder is the logic, “Who says your blood is redder?” What does this mean? Note that it does not invoke severity but the principle of shev ve’al ta’aseh (better to refrain): you cannot prefer your own life over your fellow’s. It seems this rationale reflects the problem of invading another’s domain, not the severity of the offense. You are not empowered to determine the value of the other’s life or blood. Even if from your perspective—and naturally—“your life takes precedence” (and even if that consideration is itself correct from your perspective; see Bava Metzia 62a), you are still not authorized to apply that consideration here, since it touches another’s rights. Only after concluding that murder is not overridden by saving life because of territorial considerations do we then say that, in such a case, there is a halakhic prohibition to kill the other—even there, only now does the prohibition of murder arise in this scenario.
Beyond all this, murder is also a cardinal sin like idolatry and sexual immorality, which is another reason it is not overridden by saving life.
A Similar Distinction in the Laws of Forbidden Relations
In note 1 in Column 562 (see also in my article on the guilt-offering) I mentioned a similar distinction regarding forbidden relations. The Gemara states in several places that we do not find “a wife of two dead men,” i.e., a woman who would require levirate marriage (yibbum) from two different husbands; the reason is that there is no situation in which a woman is simultaneously married to two men (as distinct from one man having two wives). Now, in Avnei Miluim 44:4 he cites a question raised by the Penei Yehoshua (Gittin 43):
“In Ḥiddushei Penei Yehoshua, chapter ‘HaSholeach’ (p. 43), he asks: Still, we can find a case of ‘a wife of two dead men’: before her emancipation she returns and is betrothed to Shimon; the betrothal of Shimon would also take effect with her, since regarding the betrothal of Reuven there is no [karet-level] prohibition, only a guilt-offering; it is not even like ordinary negative prohibitions where betrothal nevertheless takes hold.”
The rule is that with a shifcha ḥarufa (a woman who is half-maidservant, half-free, married to a Hebrew slave) there is no prohibition in cohabiting with her (certainly not karet; many hold there is no prohibition at all, only liability for a guilt-offering). Therefore, in principle betrothal should take effect with her, since betrothal takes effect even in ordinary negative prohibitions (and only fails in cases of karet). If so, if someone betroths a shifcha ḥarufa who is married to a Hebrew slave, there is no karet and the betrothal should take effect; she would then be the wife of two men. If so, argues the Penei Yehoshua, we do indeed find a case of “a wife of two dead men.”
The Penei Yehoshua answers:
“What we rule generally—that betrothal takes effect with ordinary negative prohibitions—applies to other negative prohibitions; but through betrothal itself you will not find betrothal taking effect [upon] betrothal: since Reuven’s betrothal took effect, she is in his domain and has no ‘hand’ to receive betrothal from another.”
Although there is no (serious) prohibition to cohabit with her, nevertheless betrothal does not take effect with her, because she is already married to another (she has no “hand” to accept betrothal). That is: generally, betrothal does not take effect in forbidden relations due to the severity of the prohibition of relations with an ervah (e.g., one’s mother, sister, etc.). But a married woman is a special and exceptional ervah: with regard to her, betrothal does not take effect for two reasons: (1) the severity of the prohibition of a married woman (death penalty and karet)—as with other arayot; (2) because she is already married (there is no one to betroth; she is not “available”). The second reason is unrelated to the severity of the prohibition; it is a “territorial” consideration: this woman is in another’s domain, and therefore one cannot enter and betroth her. Up to this point, this concerns a regular married woman, but the upshot is for a shifcha ḥarufa. She is a married woman; therefore, even if there is no (serious) prohibition to cohabit with her, betrothal will still not take effect for reason (2): she is, after all, in another’s domain.[3] This structure is entirely parallel to what we saw regarding “be killed rather than transgress” in murder.
Implication: Organ Harvesting
In an article in Techumin I discussed organ donation. The discussion concerns vital organs that can be taken only before the heart stops beating (such as a heart or lungs). The starting point is that one may not take organs from a living person and kill him in order to save another’s life; therefore this can only be done after the moment of death. This is, in effect, an application of the “who says [your blood is redder]” logic.
As is known, there is a dispute about the moment of death: some hold that brain death is the moment of death, others that cardiac death is. Note that the brain dies before the heart. It is commonly claimed that the permissibility of harvesting vital organs hinges on this dispute: according to those who hold that the moment of death is brain death, one may “harvest” these organs between brain death and cardiac death, since at that stage the donor is considered dead. But according to those who hold that death is cardiac, there is no way to take these organs, because at the stage when it is medically possible he is considered alive, and there is no permission to do so. In my article there, I argued that in my opinion one may “harvest” them even according to the latter view, for even if after brain death the person is considered alive, still his life is worth far less than that of a fully living person, and his “blood” is less “red” than his fellow’s.
But I added there that this is permitted only if the “deceased” consented (in advance—signed an ADI donor card). It cannot be done against his will. Seemingly, why not? If this is not murder but rather a kind of wounding or theft (of organs), then it should be overridden by another’s saving of life. True, we saw that according to Rashi and the Binyan Tzion, wounding and theft are also forbidden and block saving life. Here too the severity is not great, but it is an infringement upon another’s rights, and one cannot do so even to save a life.
This follows from the picture I described. If the issue were severity, the donor’s consent would make no difference. One may not murder even with the victim’s consent. If we see that the donor’s consent can permit “harvesting,” it indicates that the barrier to harvesting without his consent is not the severity of the prohibition but the territorial consideration. Decisions regarding his organs and life are his alone, not others’. Others cannot make such decisions about his rights—even if, halakhically, they would be correct (because the prohibition would be overridden by saving a life). Therefore, when he consents, the whole issue is resolved, because he is the one making the decision, not the harvesters.
What about a person who is willing to be killed or to kill himself voluntarily to save others? The common view is that this is forbidden (but see Hagahot Maimoniyot to Hilchot Rotze’aḥ 1, citing the Jerusalem Talmud, and Sefer HaMafte’aḥ there). It seems the reason is what we saw: there are two reasons not to kill one to save another—both severity and the territorial consideration. If the rights-holder consents, the territorial reason falls away, but the prohibition’s severity remains. In murder, the severity forbids transgressing even for saving a life; hence consent does not help, because the territorial reason falls away but the severity remains (consent is irrelevant to severity). From here it follows that regarding injury to monetary rights—where the prohibition is lighter and, in itself, is overridden by saving a life—if the rights-holder does not consent, it is forbidden (only he decides about his rights), but his consent helps.
Case Study: “Give Us One of You”
Rambam in Yesodei HaTorah 5:5 brings the following law, whose source is the Jerusalem Talmud, Terumot:
“Women to whom idolaters said: ‘Give us one of you and we will violate her; if not, we will violate you all’—let them all be violated rather than hand over a single Jewish soul. Likewise, if idolaters said to them, ‘Give us one of you and we will kill him; if not, we will kill you all’—let them all be killed rather than hand over a single Jewish soul. But if they singled someone out and said, ‘Give us so-and-so or we will kill you all’—if he is liable to death like Sheva ben Bichri, they may hand him over; but we do not instruct them so ab initio. If he is not liable to death, let them all be killed rather than hand him over.”
Gentiles lay siege to a city with many Jews and demand that the Jews hand over one of them to be killed, threatening that otherwise they will kill everyone. May they hand one over to be saved? Rambam rules (like Reish Lakish against Rabbi Yoḥanan in the Yerushalmi) that, in principle, they may not—unless he is liable to death by the kingdom; and even then, piety dictates not to hand him over.
This halakha is astonishing, as the Kesef Mishneh already asked there:
“Remaḥ wrote: Although this is found in a Tosefta, I do not know the reason. For the Gemara (Pesachim 25b) concludes that the reason we say ‘be killed and do not transgress’ in murder is that it is logical—‘Who says your blood is redder?’—but here that logic does not apply, for they will kill them all and him as well; better that he alone be killed and not all of them. And I say: His claim is no claim against the Tosefta, for we can say that there it is different, since they singled him out and said, ‘Kill so-and-so.’ Were it not for ‘Who says your blood is redder,’ we would not say ‘be killed and do not transgress’; hence it teaches in the end ‘if they singled him out.’ But at the beginning, when they did not single out anyone—when they said only, ‘Give us one of you and we will kill him’—whichever one they wish to hand over, we can say to them, ‘Why do you deem his blood redder? Hand over one of you and save this one. Perhaps this one’s blood is redder.’ And on this claim they cannot hand over anyone. But if there is a difficulty against Reish Lakish, there is: for he says that even if they singled him out, if he is not liable to death they may not hand him over—yet there is no ‘who says your blood is redder’ here, for if they do not hand him over they will all be killed.”
As we saw, the rule “be killed rather than transgress” for murder stems from the logic that one may not prefer one person’s life over another’s. Therefore, between two alternatives—Reuven dies and Shimon lives, or Shimon dies and Reuven lives—we may not choose; we must leave matters to take their course. But here the alternatives are different: if they do not hand him over, then all (including him) will die; if they hand him over, he will die and the others will live. He will die either way, so why not hand him over to save the rest? This is an overwhelming challenge to this law (which, as noted, comes from a Tosefta and the Yerushalmi, and from there to Rambam).
Because of the difficulty, the Kesef Mishneh offers a very strained answer:
“It is possible that Reish Lakish held that what [the Bavli] said—that in murder the reason is a logical one—is not the principal reason, but that there was a tradition that in murder one must be killed rather than transgress; they merely gave a logical reason where it applies. Therefore, even where the logic does not apply, the law is still that one should be killed rather than transgress.”
That is, the rule “be killed rather than transgress” for murder is not really based on the “who says” logic. It is a law received by tradition or a scriptural decree; the rationale is only to give it flavor. Therefore, he claims, it applies even where the rationale does not, as in our case. This is very difficult—against reason and the plain sense of the Gemara. But the challenge to this ruling does demand resolution.
And the Lechem Mishneh writes there:
“…The Rav’s answer does not suffice. One could say, with difficulty, that there it concerns a situation where they had some chance to escape under duress and not all would be killed; therefore they should not hand over a soul, for perhaps they will be saved. But what we say in the Gemara—‘who says your blood is redder’—applies when there is no chance of escape unless he is killed; therefore we needed that rationale. All this is difficult.”
It is forced to say that the halakha concerns only a case where it is not certain they will all be killed—perhaps it is a bluff to get them to hand someone over. From his words it emerges that indeed, in a case where they would otherwise all be killed, there is no permission to hand him over—clearly strained in the Gemara and certainly in Rambam.
A Possible Explanation in Light of the Above
In light of the foregoing, we can explain this puzzling law as follows: Indeed, the “who says” logic does not apply in this situation, but the severity of murder remains. The assumption is that handing the demanded person over to those seeking his life constitutes murder that we commit, and this is not overridden by our saving of life. Even if, in outcome, the calculus is advantageous, we may not decide on our own about another’s life. Perhaps this is also what the Kesef Mishneh intended: the “who says” rationale is not the principal basis for “be killed rather than transgress” in murder; it is only an additional branch. Beyond that, there is the severity of the prohibition, as with idolatry and sexual immorality; and this is the fundamental reason for “be killed rather than transgress” in murder. Hence he writes that even where the logic does not apply (as in Rambam’s case), the rule still holds.
Admittedly, the plain sense of the Gemara in Sanhedrin does not indicate this, which is difficult for the Kesef Mishneh. As we saw, the Gemara presents the logic as the basis. Perhaps we can propose that the two-way analogy between the betrothed maiden and the murderer actually says this: there is a derivation from the maiden to the murderer and from the murderer to the maiden. With the pursuer against the maiden and the pursuer to murder, the prohibition is severe, and therefore one may save (even the pursuer) at the cost of his life, for we must save him from a severe transgression. This shows that the severity of murder is like that of the maiden, and from here we also learn “be killed rather than transgress” for the murderer, like the maiden. Beyond that, in murder there is also the “who says” logic. The order is inverted, of course: in murder we have “be killed rather than transgress” due to the logic; from there we learn to the maiden—though there the logic does not apply—that the rule still holds, apparently due to severity. And now we learn that the severity of murder is similar to that of the maiden; therefore, even in murder, the rule holds due to severity, not only because of the “who says” logic. Still, these points require further analysis in the Gemara and in the Kesef Mishneh.
An Alternative Explanation
In my article on separating conjoined twins, I brought another explanation (citing Prof. Ankar) for this law. In the laws of murder and preservation of life, in a case where everyone’s life (including the demanded individual’s) is in danger, it is permitted to hand over one in order to save the others. What the law cited by Rambam forbids is only when it is a capitulation to the demand of idolaters. Such capitulation is Chillul Hashem; therefore, despite the consequentialist calculus and although the “who says” logic does not apply, one may not hand the demanded person over to them. In short, this law belongs to the laws of Kiddush and Chillul Hashem, not to the laws of murder and preservation of life.
The implication will be for similar situations that do not involve capitulation to threats from idolaters, etc. For example: conjoined twins (twins sharing a vital organ—a heart or brain) who are expected to die within nine months, and the only way to save one is to perform a separation surgery in which one is sent to his death and the vital organ is given to the other, thereby saving his life. It is commonly held in halakha that such surgery is forbidden, but I argued it should be permitted, for the “who says” logic does not apply: if no surgery is performed, both will die—just like in Rambam’s case. What Rambam forbids is only because there it involves Chillul Hashem in capitulating to the threats of idolaters. But in the case of conjoined twins there is no element of Chillul Hashem; only the laws of murder and preservation of life apply, and under those laws it is certainly permitted to hand over one to save the other (when the alternative is that both die).
I would add that the same applies to fetal reduction. The case is one in which there are many fetuses in the mother’s womb and they are all expected to die unless we “reduce” them. There one must kill one in order to save the others, and this is permitted because there is no element of Chillul Hashem (no capitulation to threats), only the laws of murder and preservation of life.[4]
I thought to bring proof for this explanation from the placement of this law in Rambam—Yesodei HaTorah. It is known that Rambam’s placement of laws is deliberate and one can draw conclusions from it regarding the nature of the law in question. Why, then, did Rambam place this law in Yesodei HaTorah and not in Hilchot Rotze’aḥ uShemirat HaNefesh? Because it concerns the laws of Chillul Hashem, not the laws of preservation of life.
True, the obligations to give up life for sexual immorality and idolatry also appear there in Yesodei HaTorah. This is not unique to murder. However, when you read Rambam’s words there, you will see that throughout the chapter he speaks about capitulation to threats, and concerning that he says that one should transgress all mitzvot except the three cardinal ones. He does not discuss danger without threat. When we are threatened to commit idolatry or forbidden relations, a situation of Chillul Hashem is created just like the scenario we described, and therefore one must not capitulate.
What about a situation without threat—a case in which I must commit forbidden relations or idolatry to be saved, but the threat is not a person? Rambam writes about this in 5:6:
“Just as they said regarding compulsion, so they said regarding illness: How so? One who fell ill and is close to death, and the physicians say that his cure is through some matter prohibited by the Torah—we do so, and one may be healed with all prohibitions in the Torah in a case of danger, except idolatry, sexual immorality, and bloodshed—even in a case of danger one may not be healed through them; and if he transgressed and was healed, the court punishes him with the appropriate punishment.”
First, we see that the chapter until here indeed speaks of coercion, i.e., threats, as I explained. But here he expands the law to illness, and it would appear that in his view even when the threat is not a person but a natural cause, the same law applies: one may not transgress one of the three cardinal sins in such a situation. Moreover, it seems this too is part of the laws of Chillul Hashem.
It may be that any transgression of one of the three cardinal sins under threat—even if natural—constitutes Chillul Hashem. We are expected to withstand it and not transgress; if we did, we profaned the Name. Up to this point the cases concerned situations in which Chillul Hashem resulted from threats. In 5:6 Rambam innovates that the concept of Chillul Hashem extends also to a situation without threat. Still, in a situation where, consequentially, it is preferable to kill one person to save the others (i.e., when the alternative is that all will die), there is no ordinary Chillul Hashem, for we are handing over the one who would die in any case in order to save the rest. This is not called transgressing a sin brazenly in order to gain something (even our lives). Therefore, in principle, this should be permitted. And to this Rambam writes in 5:5 that nonetheless it is forbidden to hand him over because of the Chillul Hashem in capitulating to threats.
In any case, from this analysis we see that even if we adopt this interpretation (of Ankar), the obligation to give up life is connected to Chillul Hashem and not only to the severity of the offense in and of itself. Transgressing a cardinal sin is Chillul Hashem, and the duty to give up life is for that reason; it is not merely a non-override due to the offense’s severity alone. However, according to this, the general non-override on account of Chillul Hashem applies in all three cardinal sins, not only in murder. All three involve an element of Chillul Hashem beyond the offense’s severity (and perhaps it is Chillul Hashem alone that causes the non-override). If so, we see that in the duty to give up life across all the cardinal sins, an additional parameter operates besides severity—Chillul Hashem. Still, as we saw above, murder (and other infringements of another’s rights) is exceptional, for there the “who says” logic is added, i.e., the infringement of another’s rights. And in infringements that are not murder there is only the territorial aspect (since their severity is not like the three cardinals).
A Side Note
To conclude, I note that the commentators on 5:6 disagree about the end of Rambam’s words there. He writes that one who transgressed and was healed through a prohibition is punished by the court with the appropriate punishment. In the earlier laws he writes that one who transgressed one of the three cardinals and did not let himself be killed is not liable to punishment, for he is considered coerced (against Tosafot). The question is whether he means the same here, merely adding that it is proper for the court nonetheless to find some punishment to educate him, since he did not act correctly. If so, then the same should be done for the offender in the earlier cases as well (i.e., in threatened situations, not only illness). Or perhaps his intent is that, unlike the earlier cases (threats), here—when he is ill and not coerced by a person—he is truly liable to the Torah’s punishment for the prohibition he violated, i.e., he is not considered coerced at all (thus understood by the Or Sameach there and by many later authorities; incidentally, the Tashbetz, in responsum II, also wrote similarly). This touches another aspect of the topic that I will not enter here.
[1] Some argue that writing “Chillul Hashem” is incorrect and one should write “Chillul ha-Shem (‘the Name’),” since one cannot profane the Lord Himself, only His Name. Here, “ha-Shem” is not a fully written version of the abbreviation “the LORD”; rather, “the LORD” refers to the entity itself, and “ha-Shem” to that entity’s name.
Incidentally, in logical notation one could also write “Chillul ‘the LORD’,” since quotation marks indicate that we refer to the word or term, not to the object designated by it. According to this, perhaps one may indeed write “Chillul the LORD,” since in Talmudic and biblical writing there is no punctuation or vocalization (including quotation marks).
However, we saw above that in the verses themselves it always appears as “profaning the Name of the LORD,” not “profaning the LORD.” So perhaps that is, after all, correct.
[2] I note that this analogy is different from other analogies in the Torah. Usually the Torah places two laws in proximity and we, the Sages, construct an analogy on that basis. The analogy is made by the interpreters of the Torah. But here the Torah itself draws the analogy, comparing sexual immorality to murder. Likewise with the ten qal va-ḥomer in the Torah (Bereishit Rabbah 92), which differ from other qal va-ḥomer that the Sages derive from laws stated in the Torah. In those ten, the Torah itself explicitly makes a qal va-ḥomer.
[3] See in my above article the implications of this understanding and why a guilt-offering is required. I note that the Avnei Miluim himself later explains why he does not accept the Penei Yehoshua’s answer; this is not the place to elaborate.
[4] True, there is another reason to be lenient there, since killing a fetus is a lighter prohibition. Therefore, even authorities who forbid separating conjoined twins permit fetal reduction. But in my view this argument is problematic, for we have already seen that severity is not the decisive parameter here.
Discussion
A. The whole idea is that here this is not a decision between competing values. That is the whole point of the territorial consideration. There is no overriding of one prohibition because of another prohibition, which would require a shared metric in order to weigh them against each other. Regardless of the different degrees of severity, one simply cannot enter another’s territory.
B. It is clear that what I proposed is not the usual way to learn this, but I am nevertheless proposing such an approach. First, mai chazit certainly does not express the severity of the prohibition. Second, my proposal is that because we are dealing with the other person’s blood, they come to negate the rule that your life takes precedence. The claim is that in another person’s territory you cannot make such a calculation. De facto, everyone’s blood is equally red. This is not a positive claim but a denial of your ability to decide otherwise.
In murder there is also a consideration of severity, and that is why they counted it. True, there is also something additional there.
C. The violation of the right is not because of the capacity for use. It is simply his. I have already written in the past about the distinction between ownership and rights of use (which are only a result of ownership). That is why one compensates the owner of a slave whose bill of emancipation was withheld for harm done to the slave, even though he has no ownership over him.
The comparison to a hen that rebelled is indeed interesting. The feeling is that there the hen is no longer his, and the fact that he cannot use it is an indication of that. Think about the views according to which something from which benefit is forbidden is still considered his in property law.
Indeed, human life is a formal matter. Even life devoid of value may not be harmed.
D. I did not understand the question. I showed in Rambam that consistently he speaks about threats up to halakha 6. But I did not say that only under threat does the rule of “be killed rather than transgress” apply. On the contrary, halakha 6 shows that this is not so.
Your question regarding gentiles who threaten and say, “Give us this animal so we can kill it painfully,” is seemingly a good question. Seemingly it is like a time of religious persecution, and indeed even yielding in a minor transgression would require being killed rather than transgressing. At first I thought perhaps one could distinguish between handing over an animal, which is not itself causing pain (the gentiles are the ones inflicting the suffering, not those handing it over), and handing over a person to be killed, where the handing over is itself the killing, and therefore those handing him over are also considered his killers. But on second thought there is no need for that. Certainly the severity of the transgression plays a role. Only with severe prohibitions is yielding to a threat a desecration of God’s name. Saving life at the cost of a severe transgression shows a failure to value the commandments. By contrast, with lighter prohibitions, violating them in order to save life is not a desecration of God’s name. The severity of the transgression is part of the state of desecration of God’s name. It is not enough merely that there be submission to threat.
As for gentiles who entice, I do not know. My feeling is that there is no difference. Handing a person over to die in order to save oneself is a desecration of God’s name. Admittedly, in halakha 6 Rambam writes that even when the threat is natural (illness), the same law applies, and some of his commentators write that this is not even called coercion. Meaning, there it is even worse than yielding to a threat. And note that even so, with minor prohibitions due to illness there would of course be no prohibition. The severity of the transgression is part of what creates desecration of God’s name. Plainly, thirst is like illness.
E. A lottery is definitely required. But there is room for the argument that they have no identity, and therefore taking one of them is itself considered like a lottery. Beyond that, even if they do have identity, stretching out one’s hand and taking one of them is itself a lottery. Nature is conducting the lottery here. See column 538 about the ship from Liverpool.
A. I’m not grasping this. Is this move available for any two values: A defeats B in every conflict, but not because A is more severe, heaven forbid, rather because of some higher principle, an ex machina, according to which B has no possibility of overcoming A? The wording in column 421, for example: “The problem of incommensurability is not that we are not smart enough to know the answer, but that there is no answer.”
C. “The violation of the right is not because of the capacity for use. It is simply his.” About life too you would say that harm to life is not because of all sorts of functions, but simply because he is alive. Just as the value of such a life declines, so too the value of the simple fact that “it is his” declines here. Why with life do you measure on a scale, but with territory it is binary and sharp?
D. In the column it was explained that in halakha 6 the alternatives are equivalent, and therefore threats are irrelevant, and his duty is to remain passive and not kill his fellow in order to save himself. But when the alternatives are not equivalent (gentiles laying siege, Siamese twins, fetal reduction, and similarly with brain death), then the matter depends on the question of threat and the severity of the transgression, and the combination forbids it. And about this the question is twofold: (a) the meaning of the combination—which is what you answered, that certainly the severity of the transgression plays a role; (b) since the alternatives are not equivalent, then the transgression is already not severe, as is evident from Siamese twins, so why does threat make it forbidden, unlike other non-severe transgressions (such as handing over an animal), which threat does not make forbidden? Is it because the threat created the whole configuration of the alternatives, and therefore the transgression is severe after all, like any regular murder (something like coercion on the last day, or bandits such as these conquered it).
I did not understand your comparison of gentiles who entice by offering water to halakha 6. With gentiles who entice, the alternatives are not equivalent, so we need the question of threat, and here one should ask about the difference between extortion and enticement.
A. It is not a gimmick (an ad hoc claim that can serve me anywhere in order to solve problems), but simple logic. What prevents me from forcibly taking a kidney from you if I need one because of danger to life? The prohibition is assault (assuming you will not die), and that is overridden in the face of saving life. The same applies to someone who threatens me that I give him a shekel, and if not he will kill me. Am I obligated to give him the shekel? But I have explained this in the past in several places, and this is not the place for it.
C. Indeed. I have also explained that more than once. My article on legal status is devoted to that point, and there I showed and explained why ownership is not a collection of rights of use, but rather rights of use are derivatives of ownership.
D. When the alternatives are not equivalent, then in principle we should choose the lighter one, were it not for the threat, where yielding to it is a desecration of God’s name. One must remember that the threat is what created these two alternatives and their lack of equivalence. Therefore it is not similar to a minor transgression, where even with a threat one does not give up one’s life for it. There the transgression is minor not because of the threat but by its own nature.
A. Have you explained elsewhere how one can create a mechanism for practical decision between values without a shared metric? Not merely to announce that this is possible, or to prove it from the outcome of the decision, but a theoretical discussion.
C. I know. But in a similar way, life too is not a collection of possibilities for movement, and therefore life is not impaired in brain death.
A. As far as I can see, there is no way to conduct such a discussion. The decision is made intuitively. My explanations are intended only to clarify why such a decision is not necessarily arbitrary, and therefore can be adopted. One need not throw it out as an illusion.
C. Therefore the claim is that brain death is not death. Still, in my view the level of redness of the blood of the living person has significance, as is implied by the Gemara itself. Therefore even if the value of life as such is formal and absolute, there are different levels of worth, at least in extreme cases like brain death.
A. This claim seems like a major theoretical innovation in moral philosophy, and at the moment I am not digesting it. To be sure, one can present decision between things with a shared metric as arbitrary too (so what if that one has “more”?), but this seems different. [The decision itself—that individuals cannot violate property rights under any circumstances—can also be explained as a consequentialist categorical imperative: permitting intrusion into territories will lead to mass kidney harvesting and general monetary plunder and anxiety among the entire population, and in the end the result will be worse. And obviously that lies in the background of everything I asked.]
C. But aren’t there different degrees of ownership too? And if there is only tenuous ownership here, then blood should override it, just as blood overrides taking a tenuous life. Perhaps this returns to question A. In any case, I will not continue asking about this, but will go back and study the answers again.
I meant to write: “To be sure, one can also present a decision between things with a shared metric as intuitive,” and not “as arbitrary,” as I wrote. Though that is a bit of a digression to another question—how a shared metric helps at all.
About King David it was said: “A king may breach a fence.” If the prohibition against saving oneself with another’s money stems from the severity of the prohibition of theft—what is different about a king? This proves the rabbi’s point.
As a practical halakhic ruling, since one may save oneself on condition of paying, then territorial considerations are not nullified by danger to life. If so, why when he has no money to pay is it forbidden? (Perhaps when he intends to pay he has not “taken” from the other person, and that is very strange; or perhaps territorial considerations add a certain weight to the matter, and in every case one must discuss what prevails, together with the degree of intrusion into the other’s territory and additional considerations.)
I did not understand what proof there is from the fact that they permitted it to a king. A king can also expropriate property, and declare war on an enemy (so if one may kill them, one may also take their money).
Seemingly it is difficult why David did something improper? (Even though it was permitted for him.)
(For ostensibly the reason it is forbidden to save oneself with another’s money is that it is not a proper act.)
If the reason for the prohibition is lack of authority and territorial considerations, this is understandable, for the king has ownership over the people.
P.S. To say that the reason for the prohibition is that the prohibition of theft overrides saving life—there seems to be no basis for such a view.
If a king is not subject to the prohibition of theft, then even if the law were based on the fact that the prohibition of theft overrides saving life, it would be permitted for a king.
I have not checked this, but perhaps Rambam held this on the basis of “all Israel are guarantors for one another,” and one may not hand someone over to die, and therefore only a wicked person liable to death may be handed over. Just as we find that some halakhic decisors rule that in exile, if the king imposed a tax on the Jews and exempted one Jew from the tax, he is also obligated to pay because of the rule that all Israel are guarantors for one another.
Do territorial considerations impose positive obligations as well, or only passive prohibitions?
[Bandits left a person in a car without brakes that is heading toward an abyss. If one may not save oneself with another’s money, then it is forbidden for him to steer the car into his fellow’s pile of lentils in order to stop, if that will ruin the lentils. What if the car is already heading toward the pile of lentils (because of the bandits, or even because of the person’s own steering earlier, when he still saw no lentils on the horizon)? Is he obligated to steer toward the abyss?]
Tosafot writes that a person who fell from above and is about to hit someone lying below does not have to turn himself aside and die in order to save the other. Remaining passive is preferable, even when the other will die and not I. The same applies to a case where I am about to damage another’s property: I am not obligated to steer the car away.
As for the lentils, this is forbidden only according to Rashi, and even then only where the owner of the lentils does not agree. One may assume that he does agree, certainly if you will pay him back.
Even though in Tosafot the whole reason is only because of passivity, whereas territorial considerations are a different kind of decision? If I am not permitted to enter another person’s territory at any price, then why does that change in a case of passivity? (The fact that otherwise my own territory will be intruded upon and the like—those are seemingly internal considerations of mine.)
In a passive case you are not intruding on him. The intrusion happens on its own. You merely do not prevent it, but there is no obligation to do so.
It’s good to be Jewish, according to the words of the head of the Electric Company. “The extensive power outages at the end of last weekend led the Electric Company to disconnect localities with a mostly secular population from the electricity grid, in favor of connecting localities with a mostly religious population. Thus recounted Electric Company CEO Meir Spiegler at the conference of the Association of CEOs and Secretaries in local authorities, taking place today at the Queen of Sheba Hotel in Eilat.”
More power to you. You said that bloodshed is forbidden both because of its severity and because of intrusion into territory. Because of the severity, one can say that it reverts to being a derivation in the reverse direction—from the betrothed maiden to the murderer. But I still did not quite understand how “mai chazit” teaches intrusion into territory. If it were like theft, etc., seemingly it would have been enough for the Gemara to say that saving life does not override bloodshed because saving life does not override sins between man and his fellow, etc. It seems that “mai chazit” is a rationale unique to theft.
Regarding intrusion into territory, it seems that this is well defined in the novellae of Rashash"k on Nedarim 1a, Meshekh Chokhmah, Leviticus 19:3.
You mean unique to murder. Indeed, that is the straightforward reading. What I proposed is that perhaps the intent is to say that there is a prohibition of territory. In any event, this is what one is forced to say according to Rashi and Binyan Tzion.
A. You wrote that one may not save oneself with another person’s money not because of the severity of harming another, but because of entering territory that lies outside one’s domain. It seems the explanation this requires was not sufficiently clarified. After all, as you wrote in several places, deciding between things indicates a shared metric, and on that very measured scale entering another’s territory is more severe than saving a life. That is unlike betrothing a married woman, where there are no normative territorial considerations but factual ones: she is not “available,” just as one cannot betroth a table.
B. Regarding mai chazit, I did not understand the claim that the rationale reflects the problem of intrusion. Whether there is loss of life (ta’ama de-retzicha) or intrusion into territory (ta’ama de-plisha), in any case there will be an outcome, and the issue is only passive inaction, as you wrote, and therefore that is what the Gemara sets up. And seemingly the wording “on the contrary” reflects the opposite, because from the standpoint of territory the whole claim is that even if the other’s blood is less red, it is still forbidden to intrude on him. And there too something does not sit quite right: on the one hand you said that in murder the rationale is territory (and beyond that there is also severity), and on the other hand you explained Rashi as to why they did not count theft as well, because there the rationale is territory. Even though afterward you clarified that with murder too, even without territory, one may not kill oneself voluntarily in order to save another.
C. Violating the rights of a brain-dead person who did not consent to donate—this is a very formal violation, because in practice he will never be able to use his organs and is deprived of nothing (like a hen that rebelled). Such a territorial consideration would already be hard to explain in terms of a general “repair of the world”: without unequivocal protection of property rights society will unravel. Although of course you present territorial considerations as an independent value (as usual). It is somewhat puzzling that the prohibition of murder relaxes in such a life in the face of another’s life, but preventing intrusion into territory does not relax even with such a tenuous holding in territory when set against another’s life. It seems to me that on this your claim is that only when the reasoning of “who says?” applies does the prohibition of murder emerge, but I do not understand that. Also, in the responsum about killing a person an hour before the resurrection of the dead, you answered that in matters of human life one should adopt a formal approach and it is forbidden. Is the attitude here toward a brain-dead person a formal approach, or is the formality pushed aside in the face of other human lives?
D. You explained in Rambam that transgressing one of the three cardinal sins under threat is a desecration of God’s name, and therefore one must be killed rather than transgress. Where is the explanation for this combination of one of the three grave prohibitions plus threat, where each one on its own would be “transgress rather than be killed,” but together it becomes “be killed rather than transgress”? In other words, threat is not enough to turn an ordinary transgression into something that overrides saving life (if they say “give us this animal and we will kill it painfully,” we give it to them), but murder without “who says?”—which is something broadly permitted in Siamese twins—that, threat does turn into one of the gravest prohibitions. How so? By the way, what do you think if the gentiles are merely delicate traders who do not threaten by extortion but entice (the case of Nozick that you brought): “Give us so-and-so and we will kill him, and we will give you water; otherwise you will all die of thirst as if we had never been here.” In that case, do we hand over the person..
E. By the way, even in selective fetal reduction would you require a lottery, as with Siamese twins? Especially since in note 4 you wrote that the severity of the prohibition is not the important parameter here. Or perhaps they have no identity (something like Terumat HaDeshen no. 314 regarding a purse of gold coins).