Dilemmas Concerning Human Life – Lecture 1
This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
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Table of Contents
- Opening the topic and the problem in public discourse
- Beit Shammai, Beit Hillel, and Rabbi Yosef Karo on sound decision-making
- Jewish law, law, and morality, and the contribution of orderly halakhic thinking
- The framework: two poles for dilemmas involving human life
- The value of life and the prohibition of murder: severity, sensitivity, and saving life versus the Sabbath
- Incommensurability of values and bypassing the decision
- Consequentialism versus formalism in the laws of saving life
- Correcting the definition: not the “prohibition of murder” but the “value of life”
- The prohibition on saving oneself at the cost of another’s life: the reasoning of “What makes you think?” and passive omission
- Implications: passivity, falling on a child, and the question of responsibility for the outcome
- The second pole: the law of the pursuer and the apparent contradiction to “What makes you think?”
- Answers regarding the law of the pursuer and the central intuition
Summary
Overview
The text opens a series on dilemmas involving human life, mainly in the medical realm and the realm of warfare, and argues that the public and practical discourse around them is emotional, intuitive, and lacks a conceptual framework that would make it possible to define principles and clarify disagreements. It suggests that this lack of system leads the discussion to get mapped immediately onto a left-right political dispute instead of directly addressing the moral questions, and that an orderly framework would create real complexity, in which there are considerations in both directions, and would lead to more thoughtful decisions. It adds a distinction between Jewish law, law, and morality, but argues that on this particular issue there is a striking convergence between halakhic thinking and moral-legal thinking, so it is possible to present a language that will be relevant even to someone not connected to Jewish law. The overall framework presented is a tension between two poles: the value of life and the prohibition of murder, including the prohibition on saving oneself at the cost of another’s life, versus the law of the pursuer, and the continuation of the discussion is supposed to examine various dilemmas along the axis between them.
Opening the topic and the problem in public discourse
The text defines the dilemmas as involving medical decisions such as transplants and dangerous surgeries, and questions of warfare such as whom one may harm and to what extent. It states that these discussions are usually conducted emotionally, with general slogans like “proportionate” and “disproportionate,” without formulated principles and without an orderly doctrine even among decision-makers, and therefore there is no real way to clarify disagreements and all that remains is brawling. It argues that the discourse keeps being mapped back onto the left-right dispute as though the positions were known in advance, even though the connection between the moral questions and political outlooks is not necessarily inevitable. It presents the adoption of a systematic framework as something that can break those correlations, clarify exactly where the disagreement lies, and lead to an understanding of the costs of the decision and the limits of the arguments.
Beit Shammai, Beit Hillel, and Rabbi Yosef Karo on sound decision-making
The text cites the Talmud in Eruvin about the dispute between Beit Shammai and Beit Hillel and the heavenly voice saying, “These and those are the words of the living God, but the Jewish law follows Beit Hillel,” and emphasizes that the Talmud explains the ruling by saying that Beit Hillel were agreeable and humble and would state the words of Beit Shammai before their own. It presents a common reading that sees this as a reward for good behavior, and against that presents an understanding implied in the words of Rabbi Yosef Karo in his rules of the Talmud, that the Jewish law was ruled like Beit Hillel because their decision-making was better and more correct, since they seriously considered Beit Shammai’s position before forming their own. It concludes that someone who takes the other side seriously and is aware of the costs and the various aspects makes better decisions, and that orderly discussion benefits all sides even if it makes decision-making harder and weakens the feeling that “I’m the one who’s totally right.”
Jewish law, law, and morality, and the contribution of orderly halakhic thinking
The text states that the speaker is generally a supporter of drawing boundaries between Jewish law, morality, and law, and argues that Jewish law has aims beyond moral and legal aims, to the point that sometimes it seems to him that it has no moral-legal aims at all, only other aims. It describes a need to maneuver between different systems and mentions the Ran’s homilies about the king’s law as against Jewish law as a framework that expresses this. It states that in the case under discussion there is דווקא a convergence between halakhic thinking and moral-legal thinking, and therefore the language that will be presented will be relevant even outside the world of Jewish law, even though it will be based on halakhic sources. It presents this as an advantage that makes it possible to show the contribution of orderly halakhic thinking to general discourse and not only to someone asking “what does Jewish law say.”
The framework: two poles for dilemmas involving human life
The text sets out a principled framework of “tension between two poles,” according to which almost all the dilemmas are mapped: one pole is the prohibition of murder, and its continuation is the prohibition on saving oneself at the cost of another’s life, and the second pole is the law of the pursuer. It presents the framework as simple at the general level, but one whose details complicate it, and describes the work as examining how different problems tend in this direction, that direction, or to the middle, and in what “dosage.”
The value of life and the prohibition of murder: severity, sensitivity, and saving life versus the Sabbath
The text presents the prohibition of murder as one of the three most severe transgressions and emphasizes its severity through “You shall not pollute the land” and “You shall take no ransom for the life of a murderer,” alongside a demand to be extremely strict in verifying the conditions for capital punishment out of sensitivity to the value of life even when the punishment itself is taking life. It mentions the topic in Yoma about saving life overriding the Sabbath, where the discussion turns out to be “why” saving life overrides the Sabbath, and presents two reasons that remain: “Profane one Sabbath for him so that he may keep many Sabbaths,” and Shmuel’s idea, “and live by them, and not die by them.” It describes a fundamental contrast in which the first seems to present life as a means for observing commandments, to the point of mentioning a possibility in Or HaChaim regarding someone who does not observe commandments, whereas the second seems to establish life as an intrinsic value that prevails over observance of commandments. It emphasizes that the halakhic decisors bring both reasons in practice, and that they have practical implications, for example regarding temporary life, a small child, a fetus, and the question whether one profanes the Sabbath when “many Sabbaths” are not guaranteed.
Incommensurability of values and bypassing the decision
The text argues that the fact that both reasons are brought together teaches that there is no avoiding the conclusion that they are not really contradictory, and introduces the idea of the “incommensurability of values” from analytic philosophy, according to which there is no common yardstick by which to compare values when each is an end in itself. It suggests that the reason “Profane one Sabbath for him so that he may keep many Sabbaths” does not mean that life serves the Sabbath, but rather bypasses a direct decision between the value of life and the value of the Sabbath by adding a quantitative component that makes comparison possible on the same scale, “one Sabbath” versus “many Sabbaths.” It applies this also to understanding the Talmudic conception that one does not profane the Sabbath to save the life of a non-Jew, and explains that the external criticism weakens when one understands that the halakhic calculation is not based only on the “value of life” but on a system of values that also includes the value of Sabbath observance, while noting that in practice he himself thinks that today one should profane the Sabbath to save a non-Jew “as a matter of basic law,” and he mentions Meiri.
Consequentialism versus formalism in the laws of saving life
The text emphasizes that in dilemmas involving human life, the thinking is not formalistic—“left hand,” indirect causation, and technical workarounds—but consequentialist considerations of cost and benefit in relation to life. It gives the example of a sick person who needs meat on the Sabbath, when the options are eating non-kosher meat or slaughtering on the Sabbath, and presents the Ran’s approach of “quantity versus quality,” which prefers violating one severe prohibition once rather than many lighter prohibitions. It presents a rejected initial suggestion in the Tashbetz according to which it would be preferable for the patient himself to violate the prohibition of eating non-kosher meat so that another person would not slaughter on his behalf, and argues that in saving-life cases it does not work that way because “it doesn’t matter” who performs the prohibition but rather how many prohibitions there are and what the outcomes are. It adds an example from Achiezer and Rabbi Moshe Feinstein, who reject a proposal to perform a life-endangering surgery specifically through a non-Jewish doctor, and concludes that when something is permitted there is no significance to “who will do it,” and this is not a game of formalistic evasion but a decision about whether the price in life is justified.
Correcting the definition: not the “prohibition of murder” but the “value of life”
The text returns and sharpens the point that the first pole is not only the “prohibition of murder” but the “value of life,” because the focus in these dilemmas is not whether the person violated a prohibition but what the price is in terms of life. It tells a story about a graduate of a hesder yeshiva in a medical school interview who was asked about abortions, and replied that if it is a halakhic problem “I’ll sell the knife to a non-Jew,” and if it is a moral problem they should ask what they themselves do, in order to emphasize that the real question is what one does with human life and not how to technically bypass a prohibition. It presents this as the thread running through the topic: the perspective focuses on the outcome and the price of loss of life, not on the formalism of transgression.
The prohibition on saving oneself at the cost of another’s life: the reasoning of “What makes you think?” and passive omission
The text presents the rule of “be killed rather than transgress” in the case of murder, when a person is threatened to kill another person in order to save himself, and emphasizes that the source in the Talmud is a logical argument and not a verse: “What makes you think your blood is redder?” as proof of a character that is not “halakhic-technical” but rather a general moral-legal principle. It explains that there is no way to decide that the threatened person’s life takes precedence over the other’s life, and therefore he may not prefer himself by killing, and it places this in a “top-down” point of view in which human beings are equal. It sharpens the point that when the outcome is balanced and there is no consequential advantage, the consideration enters that passive omission is preferable, so there is no justification for committing an act of murder, and therefore one does not “flip a coin” but refrains from an act that has no justification.
Implications: passivity, falling on a child, and the question of responsibility for the outcome
The text raises the question of what it would mean if he nevertheless killed in order to save himself when there is no consequential basis for decision: did he violate the prohibition of murder, or did he only violate the principle that passive omission is preferable? It notes that he has no clear answer to that. It cites Tosafot in Yevamot about a person thrown from the top of a building who may fall on a child and kill him, and presents the principle that when there is no justification to act, there is no obligation and perhaps it is even forbidden “to tilt himself” in order to save the other at the cost of his own death, because the other person’s life is also not preferable to his own. He formulates the distinction this way: “To do something you need a reason; not to do something you don’t need a reason,” and compares it to the rule “the burden of proof rests on the claimant,” and to situations in which a religious court refrains from action when there is no decisive reason. He adds that behind this approach there is also a conception of leaving reality as it is when a person is not authorized to decide, and he brings the Volozhin myth about “returning the keys to heaven” as an image for leaving the decision in the hands of the Holy One, blessed be He, when there is no right way to act.
The second pole: the law of the pursuer and the apparent contradiction to “What makes you think?”
The text presents the law of the pursuer as the case in which it is permitted and required to kill the pursuer in order to save the pursued, whether in pursuit for murder or in pursuit of a betrothed young woman. It formulates the apparent contradiction: the pursuer can say, “Why are you killing me?” on the basis of “What makes you think?”, and yet the law permits killing him and even requires it. It argues that the many sources brought for the law of the pursuer are numerous because the basis is an obvious logical argument, similar to the saying that when there are “twenty-two explanations,” that indicates the source itself is insufficient, and concludes that here too the principle is part of general thinking and not only halakhic thinking.
Answers regarding the law of the pursuer and the central intuition
The text brings an approach in Rashi on Sanhedrin according to which killing the pursuer saves him from the transgression of murder, and also presents an approach according to which if they do not kill him now, he will kill and then be killed by a religious court, so that two people will die, but he points out circular problems and doubts in these arguments. He suggests a stronger explanation according to which the pursuer himself “cooked up” the situation of “either him or him,” and therefore cannot rely on the claim of equality of blood; the rule of “What makes you think?” applies to a situation imposed without guilt, but when a person deliberately creates the equation he loses its protection. He concludes by noting that this explanation assumes an intentional pursuer, and signals that this leads to the next stage of the discussion, about a pursuer who is not mentally competent, such as a minor, a fetus, or an incompetent person, which is to be clarified later.
Full Transcript
[Rabbi Michael Abraham] Today we’re starting a new topic, or a new series, on dilemmas involving human life. This can mainly touch on two kinds of issues. One is in the medical realm—it could be organ transplants, or undergoing a dangerous surgery, yes, the kind of dilemmas that touch on my life: what am I supposed to do about it? Maybe also what a doctor is supposed to do with the life of a patient. And also in the realm of warfare: whom is it permitted to harm, and how, and how much, and questions of that sort, which we encounter quite a bit. I’ll just begin with two introductory remarks. On the one hand, discussion in topics like these—maybe in all topics, but especially here, and that’s what makes it troubling—is usually very emotional. Political arguments, needless to say. Also questions of what to do with terrorists, innocents, all kinds of things of that type. The discussion is very, very emotional, very much not conducted according to any formulated principles, and even the people responsible for decision-making, the impression is that they don’t really have an orderly doctrine. Meaning, there are all kinds of very general statements like “this is proportionate,” “this is not proportionate,” vague kinds of statements where it’s very hard to put your finger on it—do you agree with this, do you not agree with this? There are intuitions of one sort or another, but as long as you don’t formulate them, you can’t really put them to work. Meaning, you can’t move forward with it. You can’t formulate the dispute. It remains at the declarative, emotional level. So it’s no wonder that all people do is fight. Because there’s no way to clarify things as long as there isn’t some conceptual framework. The truth is that I even know a few people who were very close to—mainly two—who were very close to decision-making in these areas, and even from them I get the impression that there isn’t some ordered and organized doctrine within which decisions are made. In the end it remains some kind of intuitive matter—yes proportionate, not proportionate, and so on. That’s how they judge it, that’s how decisions are made, and in my eyes that’s very problematic. Among other things, that’s what leads to the problematic discourse, because there’s no way to talk. Meaning, if you don’t have some system of orderly arguments that justify your position, you can’t present it, the other person can’t explain where he agrees or disagrees, and all that’s left is just to fight.
[Speaker B] Is there no compromise from a legal or halakhic standpoint?
[Rabbi Michael Abraham] That’s my second remark, in just a moment. And I think part of it—the implication, one of the implications of this—is that it constantly gets mapped onto that same eternal, endless argument between left and right. Meaning, everything eventually gets connected to that. If you’re on the left, then you think this way; if you’re on the right, then you think that way. Even though when you look at the questions themselves, it’s not always clear that there really is some connection to left and right. But it’s always obvious that the left will oppose war and the right will support war; the left will oppose harming certain kinds of people and the right will agree—even though the moral questions don’t necessarily have to be tied to a political or even security worldview. Why should there be such a connection? Sometimes there is, sometimes there isn’t. But the connection is so airtight, so obvious in advance what each side will say, that it seems to me this is an expression of the fact that the discussion really isn’t taking place. The discussion doesn’t take place, so it gets left to sentiment, and the basic sentiment always bursts in the same direction. When there is a somewhat more orderly doctrine, then I think it becomes possible to discuss things in a more balanced way. These correlations can perhaps even be broken—correlations between political-diplomatic left and right and moral questions. And I think in the end the discussion comes out more correct. Of course, many times it also becomes more complex. Once you do things in an orderly way, you understand that there are two sides to the coin. And when there are two sides to the coin, first, it’s harder to make decisions, and second, I’m less right—and that’s always a problem, because I really love being the one who is absolutely right, from every standpoint, in every respect, and the other guy is just talking nonsense in every respect too. That’s most convenient for everyone. Whereas usually that’s not the case. Usually there are considerations this way and considerations that way, and there are aspects such that none of them is complete nonsense. True, in the end you still have to decide, and that’s fine—there’s no choice. But if we’re aware of the complexity of the decision, it seems to me that our decision will also be better. More thoughtful and more correct. I’ll just mention something I think we already saw once: the Talmud about Beit Shammai and Beit Hillel, in Eruvin, where the Talmud says that Beit Shammai and Beit Hillel disputed for three years until a heavenly voice came out and said, “These and those are the words of the living God, but the Jewish law follows Beit Hillel.” What were they doing for three years? Fighting. Which is the greatest assumption—actually, the opposite: what did they do after those three years? That’s the question. And then the Talmud explains why the Jewish law follows Beit Hillel: because they were agreeable, humble, and gentle in spirit, and they stated the words of Beit Shammai before their own. What does that mean? Usually the reading is—we discussed this, I’m just reminding you—the common reading is that we’re dealing here with some kind of reward for good behavior. Since Beit Hillel were polite and nice and stated the words of Beit Shammai before their own, treated them respectfully, therefore we rule according to them because they’re such nice people and we all need to learn from them how to behave. But Rabbi Yosef Karo, from his words it seems he did not understand it that way, in his rules of the Talmud—he has a book on the rules of the Talmud—and he writes, or at least it seems from his words, again, not one hundred percent but that’s how it seems, that the Jewish law was ruled like Beit Hillel because they were right, not because they were educated and polite. Because even though Beit Shammai were sharper, nevertheless, since Beit Hillel seriously weighed Beit Shammai’s position and only afterward formulated their own position, they arrived at better decisions. Meaning, in a place where you also take the other side seriously, and you weigh things and examine them, and only then come to a conclusion—whether you agree with them or not—you are aware of the costs, you are aware of all the sides, and you make better decisions. And therefore it seems to me that this discussion—conducting it in an orderly way—is better for everyone. You can focus where the disagreement is, you can reach more correct conclusions, and you can also better understand the costs—that is, understand where the limits of our arguments are. That’s the first remark. The second remark really relates to what you just said before: whether this is Jewish law or law—or morality. Usually I’m actually among those who support drawing boundaries, or making distinctions, between those fields, and I think that Jewish law has aims beyond moral aims and also beyond legal aims. I think you can see that very clearly; it’s hard to deny. To such an extent that sometimes my feeling is that Jewish law not only has aims beyond the moral and legal ones, but that it has no moral or legal aims at all, and only other aims. The moral and legal aims, the Holy One, blessed be He—or the Torah, of course—expects us to conduct ourselves by them,
[Speaker C] But that isn’t Jewish law,
[Rabbi Michael Abraham] meaning, that’s another system, and we somehow have to see how we maneuver between these two systems. I once spoke about the Ran’s homilies, with the system of the king’s law versus Jewish law, which basically reflects these two systems. In this particular case, as I’ll also try to show, there is actually a striking convergence between halakhic thinking and moral-legal thinking, and therefore it seems to me that the language I’ll try to present here is a language completely relevant also to someone who has nothing to do with Jewish law. Meaning, it seems to me that these forms of thought are more or less the kinds of things that should be acceptable to almost anyone, I think at least. Once you formulate it, once you put the things on the table in an orderly way, then more or less—at least the discourse itself—you can argue within it, but this discourse does not seem to me to be a halakhic discourse, even though I may develop it out of halakhic sources. It is not a halakhic discourse at all. Meaning, this discourse reflects a moral and legal worldview that I think is correct also in any other system, or can be correct in any other system. And in that sense it is a great advantage to deal with this topic. That’s also why I’ve found myself dealing with it in other contexts and in places where I try to show people what the contribution of orderly halakhic thinking is—what contribution orderly halakhic thinking can make, we talked about this yesterday—to general discourse, not only for someone who wants to know what Jewish law says. In this case I think the contribution is very great, because there really is a certain orderly and systematic way of thinking here about this topic. Okay, so let me go back to the beginning. I’ll already state in general terms what the framework is, the framework of the issue. The framework of the issue is essentially made up of a tension between two poles. Basically, almost all the dilemmas—we’ll see quite a few dilemmas of various kinds—almost all the dilemmas are somehow located somewhere between two poles, and the question is how they relate to each side. One pole is the prohibition of murder, and the continuation of that pole, still on the same side, is the prohibition on saving oneself at the cost of another’s life, and the other pole… The conceptual framework is basically just that. It’s not even all that complicated. Once you get into the details it becomes more complicated, but the conceptual framework is overall just to place two poles opposite one another, and now see what happens with various problems. Does this map here, map there, sit in the middle? Is it this dosage or that dosage? That’s the big picture. So let’s begin with those two poles. First of all, there is the prohibition of murder. The prohibition of murder is, of course, one of the three most severe transgressions. It’s a very severe prohibition. The Torah, Jewish law, warns very strongly: “You shall not pollute the land.” There are very harsh words here for someone who murders. “You shall take no ransom for the life of a murderer.” Meaning, it’s so severe that there is no—one may not waive it and nothing of the sort. On the one hand, “and the congregation shall save” regarding capital punishment—you have to make it very difficult before concluding that someone is liable to the death penalty. On the other hand, you must not waive it; meaning, not do tricks in order to exempt someone, but rather make absolutely sure the conditions are met. But waiving it—no: “You shall take no ransom for the life of a murderer.” So this transgression is very severe on the one hand, but human life is also a very important thing. That’s why the punishment, too, is not imposed lightly; that too is taking human life, the punishment. So there is a very, very—let’s call it sensitive, or very, very scrupulous—attitude toward the value of human life. It is a very fundamental value. We once talked about the Talmud in Yoma that discusses saving life versus violating the Sabbath. There—I’m just saying this parenthetically, we discussed that too once—it seems that there are two conceptions in the Talmud regarding the value of human life. Because when the Talmud discusses there whether saving life—actually not whether, but why saving life overrides the Sabbath—and it’s interesting that there the discussion is not whether but why. The Talmud ultimately raises two reasons. It rejects various reasons offered by tannaim, and in the end two reasons remain. One of them is clear, and the second one probably remains—or if from other passages at least. One is Rabbi Shimon ben Menasya: “Profane one Sabbath for him so that he may keep many Sabbaths,” and the second is Shmuel: “and live by them, and not die by them.” There is, seemingly, a very fundamental difference between these two reasons. Because when we say, “Profane one Sabbath for him so that he may keep many Sabbaths,” ostensibly what we are saying is that the value of life is altogether just a means in order to keep Sabbaths. Right? Why is it permitted for me to profane the Sabbath? Not because I’m saving a person’s life. A person’s life is not the big deal. Rather what? Since if he lives he will be able to keep many Sabbaths, it pays for me to profane one Sabbath so that I’ll gain many Sabbaths in exchange for this Sabbath that I lost. So the whole calculation is a calculation of what you do with life—a device for commandments. And then the conception is that life is a means for fulfilling commandments; basically it has no value. Life is not a value, in Leibowitz’s sense—we also talked long ago about values, and I said that Leibowitz defines a value as something not based on a principle outside itself. Meaning, a value is the basic principle on which ethical decisions can be based, and when you ask why the value is correct, the answer will be: just because. I have no answer why the value of human life is a value—just because, that’s it. If you don’t understand that, I don’t know how to explain it to you. Meaning, the point where you get stuck and say “that’s just how it is”—that’s what’s called a value. That—
[Speaker C] Meaning because it’s a value—that’s basically the answer, right?
[Rabbi Michael Abraham] Because every explanation has to start from some starting point, so human life is a starting point—that is, apparently a value, on the one hand. On the other hand, here in the Talmud we see “Profane one Sabbath for him so that he may keep many Sabbaths,” which says no, human life is not a value. It is a value only because it allows many Sabbaths to be kept. Meaning, we basically live in order to fulfill commandments; life is not a value in itself. To such an extent that I think Or HaChaim raises such a possibility—halakhic decisors reject it outright—but he raises such a possibility: what about someone who does not observe commandments? Would I have to profane the Sabbath to save his life? Since he won’t keep many Sabbaths, what justification is there to profane the Sabbath in order to save his life? He basically took this reasoning all the way. But what?
[Speaker E] You can reach the same conclusion not because one value is nullified before the other value. Maybe we reached a tie, and then to break the tie we said, okay, then he’ll keep many more Sabbaths.
[Rabbi Michael Abraham] Still—even if it’s a tie—it still means life is not ultimate. So it’s a tie, even if that’s the case. Right? Besides, in a tie I would say passive omission is preferable, and not profane the Sabbath. Don’t do anything; passive omission is preferable if it’s a tie. What?
[Speaker D] I said, values can’t contradict each other, right?
[Rabbi Michael Abraham] No, on the contrary, values can certainly clash. They can certainly clash, of course. Every moral dilemma is a conflict. Not contradict in the logical sense, but come into conflict, collide—not logically contradict.
[Speaker D] Doesn’t it create a proper space? Why not?
[Rabbi Michael Abraham] I’m saying there is no contradiction between the values in the sense that the value of Sabbath observance and the value of human life do not contradict each other, but a conflict can arise. There is no contradiction between strictness in observing the Sabbath and strictness regarding human life, but a situation can arise in which there is a conflict and you have to decide what prevails. It’s not a contradiction between the values; it’s a conflict that arises at the behavioral level—what to do. In any case, ostensibly, in the Talmud there that reason of “profane one Sabbath so that he may keep many Sabbaths” basically sees human life as some kind of means that serves the observance of commandments. What happens in Shmuel’s second reason? “And live by them, and not die by them.” There, ostensibly, it looks the opposite—exactly the opposite. Because the Talmud there says “and live by them,” meaning: when do you observe commandments? When you can live. But if observing the commandments comes at the cost of life, then no—you do not have to keep the commandments. Commandment observance is pushed aside before life. Life is an intrinsic value; it is not a servant of commandment observance. These are two reasons that are apparently quite completely opposed. Now what is most beautiful in this whole business is that the halakhic decisors bring both of them. They bring both into Jewish law in practice. Both—and this has practical implications. For example, for the life of a small child, okay? Or even a fetus.
[Speaker F] There are practical implications brought up in the Talmud in Shabbat about someone who won’t live beyond this one Sabbath.
[Rabbi Michael Abraham] Someone who won’t live beyond this one Sabbath, yes. But there Meiri—there is a Meiri there, Meiri brings it—that Meiri argues that it’s not specifically Sabbath observance but any commandment. If you live one day, you can still do many commandments. Study Torah, do other things. Meaning, it’s not specifically Sabbath observance. But yes, some bring it also in the context of someone with only temporary life, someone who will live only another day or two and won’t reach many Sabbaths. Is it justified to profane the Sabbath to save him? Regarding a minor—since he is destined to keep many Sabbaths, already now you can save him, even though at the moment perhaps the value of life is not yet full. A fetus, yes? Whether it is permitted to profane the Sabbath in order to save the life of a fetus. The fetus is not yet full human life in value—we’ll discuss that further on—but it has the potential for keeping many Sabbaths. So you can still profane the Sabbath to save it. Meaning, the halakhic decisors bring both reasons even though they contradict one another. They contradict head-on. And therefore it seems to me there is no choice but to understand that they do not really contradict. That’s what we talked about when I spoke about moral conflicts.
[Speaker C] The one who is liable for the commandments is the person himself. The one who supposedly suffers from the sin, or the one who pushes aside the Sabbath—so you have a distortion here.
[Rabbi Michael Abraham] That’s a very interesting comment, because the Rosh brings a dispute among several medieval authorities (Rishonim) about what happens if there is a sick person—just a moment, I’ll give an example to illustrate something. There is a sick person, and he needs to eat meat. The doctor says he needs to eat meat. Now there is no kosher meat here. All that’s possible is either to eat non-kosher meat—pork, I don’t know, something not kosher—or to slaughter on the Sabbath. Okay? We are on the Sabbath. What do you do? So there is a dispute among the medieval authorities (Rishonim). There is the famous Ran who talks about quantity versus quality. When he says—I once wrote about this on my website—I said this is litmus paper for laymen. If you ask the ordinary person, he’ll tell you, what do you mean, eat pork? Slaughter! What do you mean, eat pork? What kind of thing is that? Slaughter. But slaughtering on the Sabbath is a stoning-level prohibition, and eating pork is just a regular prohibition. There’s a huge taboo around eating pork, but it’s just a regular prohibition punishable by lashes. Not just a regular prohibition—it’s fine, a prohibition punishable by lashes. And this one, slaughtering on the Sabbath, is a stoning-level prohibition. Okay, but the medieval authorities (Rishonim) disagree. The Ran says it is still preferable to slaughter, even though it is more severe—and he was not a layman. He was a layman, but not that kind of layman. And what he says is that if you eat pork or something non-kosher, then with every olive-sized portion you eat, you violate a prohibition. Even half an olive-sized portion, because that too is prohibited. In contrast, if you slaughter, you violate a severe prohibition, but only once. After that you can eat as much as you want. He says it is preferable to violate one severe prohibition once rather than many lighter prohibitions. You need to cook it too.
[Speaker G] What? You need to cook it. Maybe he’ll eat it without cooking.
[Rabbi Michael Abraham] Fine. Anyway, if cooking too, then maybe he’ll cook it all at once. Cook the whole thing one time.
[Speaker H] In any case, his question is: someone who profanes the Sabbath in order to save a life fulfills a commandment; he isn’t committing a transgression. At the end of the day, bottom line, he is performing a commandment—saving a life.
[Rabbi Michael Abraham] No, after you’ve already decided. But the question is why you decide that way. Why that is the decision. I’m getting to the answer now. Now one of the things—they ask there, there’s only an initial suggestion in the Tashbetz, which is rejected, and that is the first thing I would have said there. I would have said: obviously he should eat pork and not slaughter. Why? Because to slaughter—I would need to slaughter for him. Why should I slaughter for him if he is the patient in a life-saving situation and he needs this thing? If he eats pork, then he has committed the prohibition, but for him it is permitted because his life is being saved by it. But why on earth should I slaughter for him? It doesn’t even arise. It doesn’t arise. That is the rejected initial suggestion in the Tashbetz, and that’s that. Nobody raises such a thing. Because in the laws of saving life—and we’ll come back to this—in the laws of saving life, apparently this whole issue of who performs the prohibition and who doesn’t plays no role at all. Rather, from the point of view of the Holy One, blessed be He, looking from above, He says: how many prohibitions are being done here, and what are the results? It’s some kind of consequentialist consideration, and He does not care whether you do the prohibition and he benefits, or he does the prohibition and you benefit. That simply plays no role. Meaning, if for you it’s permitted, then there is some—on this too I think we’ll get here—there is some responsum of Achiezer and of Rabbi Moshe Feinstein. They discuss entering into a life-endangering surgery. Is it permitted to do that? You are endangering your life with your own hands. So there is someone—I think they cite Mishnat Chachamim, some Mishnat Chachamim—who says there that it should be done through a non-Jewish doctor. So a non-Jewish doctor—he is, well first of all there is “do not place a stumbling block” even with a non-Jew, but “do not place a stumbling block” is fine, that’s only a regular prohibition, murder is a severe prohibition. So both Rabbi Moshe Feinstein and the Achiezer reject this outright. There is no such thing. Meaning, if it is permitted, then it does not matter who does it. We are not playing on this field of do it with your left hand. That’s not interesting. Meaning, the same thing with human life. In matters of human life, the discussion is—and this is an interesting point, because in my opinion many halakhic decisors ignore this aspect—there is no such thing as left hand or not left hand. Meaning, the considerations in these dilemmas—and we’ll return to this point several times later on—the considerations in this matter are consequentialist considerations. Meaning, does it justify the price or not justify the price. We are not playing with this halakhic formalism of: if I commit the prohibition in such-and-such a way, I’ll kill him by indirect causation, okay? And then everything will be fine. Since by indirect causation we do not execute, right? I’ll confine him in the sun, where the heat will eventually come. All kinds of things like that. Those are discussions about punishment; they are not relevant here. All those discussions that come up regarding punishment come up in the question whether you would incur the death penalty if you did it or not. They do not come up in this context of dilemmas involving human life. It does not matter whether you do it by indirect causation or not; that is not the point. The question is not your transgression. The question is the price. Meaning, the question is whether it is justified to forgo life or not justified to forgo life. It is not a question of halakhic formalism at all. And this again hints at what I said earlier, that the halakhic discussion and the legal-moral discussion here proceed in a very, very similar way. None of these strange halakhic phenomena—left hand, indirect causation, and all kinds of gimmicks of that type—come up here. At all. It simply does not come up. I don’t know anyone who raises it, except for that Mishnat Chachamim who says to hand it over to a non-Jew. It just doesn’t come up.
[Speaker C] This argument that he should keep many Sabbaths, and therefore it supposedly shows that the killing itself is not the value—that is, human life is not a value in itself but only serves the Sabbaths—I’m not sure that’s the necessary interpretation. Because keeping Sabbaths is a value in all Sabbath observance, not specifically one Sabbath. Keeping Sabbaths is a value. Human life is a value. Now here, when this stands in conflict between the two, then if you kill a person, that’s it, the whole value is finished, wiped out. Here I didn’t wipe it out; he says, so that he may keep Sabbaths.
[Rabbi Michael Abraham] I didn’t wipe out the whole value, there is continuity. The value of life—when you kill him, then that value is wiped out. I’m saying: the value of human life, not one more Sabbath that you wiped out. So why do we need to get to “profane one Sabbath for him so that he may keep many Sabbaths”? Say: profane one Sabbath so that he may live. The value of life. The Talmud doesn’t say that. The Talmud says the value of life pushes this aside because it will bring many Sabbaths that you will gain. Meaning that the value of life by itself was not enough to override Sabbath desecration.
[Speaker C] No, because if this is value against that value, then the weight is equal.
[Rabbi Michael Abraham] Okay, that’s what I’m saying. The weight is equal and that doesn’t decide. And that is exactly my claim—that it doesn’t decide. That is exactly the point. Meaning, the value of life is apparently not something mandatory in that sense. In the Talmud one does not profane one Sabbath to save the life of a non-Jew. One does not profane the Sabbath to save the life of a non-Jew. And one of the reasons raised in that context is that he will not keep many Sabbaths, so there is no justification to profane the Sabbath in order to save his life.
[Speaker C] But if he is a doctor and by that you save the—
[Rabbi Michael Abraham] his life, then there perhaps maybe yes, maybe that could be argued.
[Speaker C] I disagree on that. What? What about someone of sound mind? What about someone of sound mind?
[Rabbi Michael Abraham] Wait, no, I’m not talking now in terms of Jewish law. In terms of Jewish law, I also wrote that today, yes, one should desecrate the Sabbath in this case. On a Torah-level basis, to save the life of a non-Jew, and not because of appearances and all those things. By the strict law itself—it’s Meiri, it doesn’t matter—but yes, that’s the practical Jewish law. I’m speaking from the standpoint of the Talmud. And many times there’s a very difficult feeling about this issue: how can it be that you don’t desecrate the Sabbath to save the life of a non-Jew? What, the life of a non-Jew isn’t a value, isn’t life a value? Now when you explain to people: look, even for the life of a Jew you don’t desecrate the Sabbath in order to save him. The only reason you desecrate the Sabbath is not because of the value of a Jew’s life, but because he will keep many Sabbaths. Meaning, if we go with what I said earlier—moving on. So one says, for that? Such a rationale? Yes, yes. So what, basically you see that the point the outside critics don’t understand is that in the world—I’m talking about secular critics right now—they don’t understand that the value of life is a fine thing, and from their perspective it’s important, obviously, and in Jewish law too. But in their world that’s the only thing there is. They don’t understand what the value of Sabbath observance is. And you can explain: look, friends, in halakhic thinking—you don’t agree with it, but in halakhic thinking—the value of Sabbath observance is such that even the life of a Jew is overridden in relation to it. Even the Jew would not be saved. The only reason you save him is because he will keep many Sabbaths. So the non-Jew won’t keep many Sabbaths, so there’s no justification to save him. So I think that this perspective still sheds a different light on this Jewish law. And again, practically speaking I don’t think this is correct. I also wrote about it. But I’m saying that the criticism raised regarding this Talmudic statement is greatly softened when one understands this form of halakhic thinking.
[Speaker I] It sounds to me, it sounds to me like there were two values, what we talked about, and the value of Sabbath—you can’t compare it to the value of saving lives. But in order to do simple math, they say one Sabbath versus many Sabbaths. But that’s only to place it on another plane, in a world—
[Rabbi Michael Abraham] that remembers, yes. So here’s a Jew who remembers. That’s what I said then—we talked about dilemmas between values. You, the questioner—if I get to this in a moment—then apparently there’s some contradiction here, and I say: but the halakhic decisors bring both rationales, and it can’t be that these are two contradictory rationales and you use both of them. They’re contradictory, not just different—they contradict each other. So my claim really was that it’s not true that Rabbi Shimon ben Menasya, who says, “Desecrate one Sabbath for him so that he may keep many Sabbaths,” that it’s not true that the value of life serves Sabbath observance. Rather what? The moment there is a clash between two values, there is what in analytic philosophy is called the incommensurability of values. It’s incommensurable, meaning there’s no common measure for the two values. You can’t measure them against one another, precisely because of what I said before: a value does not come to serve something. If a value came to serve something, then you could measure the two things by how much they serve the goal and see which is more important. But if each one is an end in itself, how will you compare them? Therefore, basically there is no way to solve dilemmas between values. And what the Talmud does here is simply bypass, bypass the need to decide. And what it says is that if you desecrate this Sabbath, then you gain not only a human life—because a human life, I don’t know if that is enough to explain desecrating the Sabbath—but you also gain many Sabbaths. And many Sabbaths against one Sabbath—that is already a comparison I can make. That’s done on the same scale. So if on one side of the scale I have human life plus many Sabbaths, and on the other side I have one Sabbath that I lost, then I won’t need now to decide whether human life overrides the Sabbath, because the value of the many Sabbaths I gained is enough to decide it. But that doesn’t mean that life really comes to serve Sabbaths. On the contrary, it means that life has intrinsic value, not just as a servant of Sabbaths. It’s just that I cannot decide which prevails, the value of the Sabbath or the value of life.
[Speaker C] So I can compare one Sabbath with many Sabbaths. Just as maybe you can compare one person with many people. Okay, so here you have the trolley dilemma. Trolley, yes.
[Rabbi Michael Abraham] We’ll get there, we’ll get there.
[Speaker H] But the verse, “which a person shall do and live by them,” “You shall keep My statutes and My laws, which a person shall do and live by them,” right? So maybe that’s like “Desecrate one Sabbath for him.” Why do I want to save him? So that the person will continue to observe and fulfill commandments.
[Rabbi Michael Abraham] The Talmud gives a different rationale: “and live by them,” and not that he should die by them.
[Speaker H] Yes, but the verse begins, “You shall keep My statutes and My laws, which a person shall do and live by them,” right?
[Rabbi Michael Abraham] The verse says that, but what does the Talmud do with that verse?
[Speaker H] It brings that verse as the basis for saying, okay—
[Rabbi Michael Abraham] So that’s like the rationale of “Desecrate one Sabbath for him.” The Talmud brings a different rationale; it’s the same rationale. The Talmud gives another rationale.
[Speaker H] The Talmud gives another rationale—
[Rabbi Michael Abraham] There are also practical differences between them, between the rationales. For example, this also helps for a doubtful case of mortal danger. Rabbi Shimon ben Menasya—the Talmud says it doesn’t help. From him you can’t learn that for a doubtful case you desecrate the Sabbath. And there are practical differences in this.
[Speaker D] According to this explanation, what does it mean when there’s a clash between two values and there isn’t— you need to make a quantitative comparison of the same value. What do you do if you can’t decide?
[Rabbi Michael Abraham] Apparently that is a problem—how to decide, yes. We talked about this when I spoke here about quantity and quality. On the other hand, it says that yes, it is possible to decide, right? Right. But the verse decided it. But we talked about this when we discussed value conflicts, and I said that in the end, yes, you can decide, but the Talmud still says that if I don’t need to get there, or if I don’t know how to decide—and that can happen—still here I have the quantitative consideration that bypasses the need to decide. What would we do if there were no quantitative consideration? I don’t know, maybe that itself would be a basis for decision.
[Speaker D] It seems to me that both secular people and Jewish law agree that the value of life has limits. After all, secular people too, most of them, justify self-defense for example, or justify punishment. Meaning there is no value that overrides everything and turns off all the lights.
[Rabbi Michael Abraham] I didn’t say it has no limits, obviously. Yes. Although, you know, the question is whether you call that a limit. Self-defense is saving my life—that too is a value of life.
[Speaker D] But not only that, not only. Life versus life.
[Rabbi Michael Abraham] The question of whether it’s not only that is already not a simple one; on that there isn’t such broad agreement. If there are things that are not life and yet justify ending life or taking life, on that there won’t be such broad agreement. Some will say maybe yes, but it’s not so simple.
[Speaker J] This idea of doing a transgression now so that you won’t do transgressions in the future—we don’t find that in Jewish law. Right. Okay. We don’t find it. Forget the issue of Sabbath and life, just the fundamental issue that you should commit a transgression now—
[Rabbi Michael Abraham] A slaughtered ox is lying before you—make your decisions according to what is happening now. What will happen afterward—as in autopsies they talk about this: how can you dissect now so that afterward there will be medical benefit from it. Yes, so Jewish law is not in the business of—
[Speaker J] Sabbath too—and the secular people you’re talking about here, tell them to come on the Sabbath and desecrate the Sabbath so that you can bring them closer.
[Rabbi Michael Abraham] We don’t rule like him. And there are some who say yes, okay.
[Speaker J] But they don’t learn it from this proof, from this idea of concern—what? The idea of “so that he may keep many Sabbaths.”
[Rabbi Michael Abraham] Ah, why don’t they bring a proof from there? Good question, I need to think about that—why there really isn’t a proof from here. Clearly there are places where we do make the calculation about the future. In a place where the future is very significant, we do take it into account now. Say, there are those who say that autopsies now, in order to create significant medical gain for the whole world or the whole public, would indeed be permitted. To do something that maybe later will do good, and you don’t know—that no. Sometimes it’s a question of quantity, I don’t know. Okay. So that is in principle regarding the value of life. So in the end it turns out that life has value. And therefore the first pole that I put here on the board is really the value of life. And I really presented it earlier as the prohibition of murder—that was not an accurate presentation. Rather, the value of life is a more accurate presentation. Because with the prohibition of murder I’ll come out with only half of it. Meaning, that’s not the point; the issue is the value of life. I don’t remember if I ever mentioned a friend of a friend of mine, who went to study medicine—he was a graduate of a hesder yeshiva. And I met him many years later, when I had already told this story about him many times, and he told me it was almost true. But he didn’t tell me what. But for me it’s a formative story. So he went to an interview at Ben-Gurion University—there are interviews there before you get accepted to study medicine—and he’s a yeshiva guy. So they say to him: tell us, what will you do if there is a problem involving abortion? An abortion has to be done, you’re a religious guy, what are you going to do there? So he said to them: look, if you’re talking about the halakhic problem, then I’ll sell the knife to a non-Jew. But if you’re talking about the moral problem, then tell me what you would do in such a case. Now, in my view that’s a wonderful answer, truly a wonderful answer. Because there is this sense that this is some crazy religious thing, like okay, you’ve got some religious problem, so what do you do with it. As if you’re fine, there’s no problem—that you want an abortion, everything is fine, it’s a neutral act, you’re not in a dilemma, everything is fine, a woman’s right over her own body. So here too, if I’m talking about the prohibition of murder, I’ll sell the knife to a non-Jew. But the question is: what do I do with the life? Then I lose the life. It’s not the question of whether I violated the prohibition of murder. And we’ll see this as a thread running through this whole topic all the time: the perspective is not a perspective about the prohibition I violate, the perspective is the price that is created in the end. Good, so that is one pole, the pole of the prohibition of murder. I’m continuing to the next step, and I’m expanding that one pole; I’m not yet moving to the second pole. The prohibition of murder goes so far that even if I need to kill someone in order to save myself, I am forbidden to do so. And here, by the way, this is already found a little more in the prohibition of murder and less in the question of the outcome. We’ll see in a moment. Yes: one must be killed rather than transgress in the case of murder. Of the three severe transgressions, one of them is murder. If someone threatens me with a gun and says to me, “If you do not kill so-and-so, I will kill you,” then it is forbidden for me. Wait, in a moment I’ll get to passivity. The Talmud in this context—and this strengthens what I said earlier—the Talmud does not bring a source for this from a verse. It is a logical argument. And that says exactly that there is nothing especially halakhic here; rather, in any system, I think, this is true—in any intellectual, moral, legal system this is true—and in Jewish law too this is true. There is here a certain fit, in this whole topic, a very nice fit I think, between halakhic thinking and general thinking. And the logic is: “What makes you think your blood is redder? Perhaps that man’s blood is redder.” Yes, your blood is not redder than the other person’s blood—a metaphorical expression that basically says: you have no way to decide whose life is preferable. And since that is so, it is forbidden for you to kill him in order to save yourself, because if you kill him in order to save yourself, you are basically placing your life on a higher level. Now here, notice: for me, obviously my life is on a higher level. “Your life takes precedence”—that too is stated in Jewish law. If there is a jug of water and two people are walking in the desert, and I have a jug of water, then Ben Petora says: yes, let them both drink and let one not see the death of his fellow. But Rabbi Akiva says: your life takes precedence. In practice. That is the Jewish law, yes, that is how it is ruled. So what does that mean? So yes, my life is more important than someone else’s life? Which is correct? But that is from your perspective. And I return again: from the perspective of the Holy One, blessed be He, He looks down—so far as He is concerned, the two of you are equal. And the consideration is an outcome-based consideration. And if from the standpoint of the outcome this outcome is no better than that outcome, then you have no justification for killing him. And again, on the one hand this somewhat contradicts what I said before—we’ll see in a moment—because here there is some play with the prohibition of murder and not only with the outcome, because from the standpoint of the outcome the two things are equal. But it does mean that I am not looking at the question from my point of view or his or someone else’s, but from some sort of U.N.-scale point of view. Looking now at this matter—what does it see? What do we see in some objective, top-down perspective?
[Speaker D] Sorry, apparently in that situation, kill him so it will stop him—let’s assume that crazy person is telling the truth, which is an assumption, that if I don’t kill him he really will kill me. So from a top-down perspective it will be the same: one murderer and one dead person. So why not kill? I don’t understand. After all, that one—let’s say he’s a Jew—the one threatening me that if I don’t kill so-and-so, he’ll kill me. Let’s look at the two situations from above, as you said. If I don’t kill so-and-so, then there will be a murderer and a victim. And if I kill so-and-so, there will be a murderer and a victim. It’s the same balance.
[Rabbi Michael Abraham] Yes. Here I don’t need to become a murderer in order to prevent him from being a murderer.
[Speaker D] But you said we look from above.
[Rabbi Michael Abraham] Since from above it is balanced, I now make the next calculation—my next sentence. Here the prohibition of murder does play a role, because otherwise, then let’s draw lots, let’s toss a coin. Why don’t we toss a coin? Because they say: if you have no justification, don’t commit the prohibition of murder. Here the prohibition of murder enters in, not the outcome, because from the standpoint of the outcome the two things are equal. Here the halakhic consideration does enter in, but it enters only where the outcome-based consideration is balanced. So where the outcome-based consideration is not balanced, then that itself decides the dilemma. If the outcome-based consideration is balanced, there I already start making the calculation: wait, if I commit a transgression or don’t commit a transgression. So if he threatens that he will commit a transgression, that’s his problem. I don’t need to commit a transgression for that in order to save him. “A person is not told: sin so that your fellow may benefit.” As Tosafot says there regarding the question of a minor prohibition in order to save him from a major prohibition. Tosafot in tractate Shabbat.
[Speaker J] And if he says, either kill him or I’ll kill him and you too?
[Rabbi Michael Abraham] We’ll get to that later. That’s the Jerusalem Talmud in Terumot. And we’ll get to it. Wait—what about the jug?
[Speaker F] And I’ll steal the other jug, I’ll kill him in the desert.
[Rabbi Michael Abraham] The halakhic decisors discuss this—the Chazon Ish and Rabbi Kook discuss the case of two people walking in the desert with a jug of water. The question is: why is it forbidden for me to rob him of it? After all, theft in a case of mortal danger is permitted, so why shouldn’t I rob him? So the Chazon Ish argues that this theft is murder. Why? Because taking the water—the water is life in that situation. Here this is exactly a non-formalistic perspective, because de facto it is murder, even though in halakhic accounting I only stole; I thereby caused his death. Yes, exactly. So no—there you are. Outcomes. That’s exactly the point. The thinking is outcome-based thinking, not formalistic thinking. This raises two points, two implications, two questions. One question is: what happens if in the end I did kill him? After all, in the end his life too is no more preferable than mine; it’s balanced. And since there is no way to decide, then don’t decide. Fine—but suppose I did decide anyway. What did I violate? Did I violate the prohibition of murder, or did I violate the prohibition of passive omission? I was supposed to sit and not act, and I did not sit and refrain. After all, there is no prohibition of murder here, because in any event, from the standpoint of the outcome, lives were going to be lost here. So the fact that I don’t know how to decide and therefore I am supposed to refrain and not act does not mean that killing him is murder. It only means that since it is balanced, passive non-action is preferable. But if I transgressed, then I transgressed the prohibition, so to speak, of failing to remain passive—but not the prohibition of murder. I’ll maybe give an example—I hesitated. But what do you mean? Either way there would have been a murder, because one of us was going to die. So I only chose him and not me—so what? No, because the prohibition of murder is killing someone as opposed to a situation in which he would remain alive. Meaning, minus one in the overall balance of life. Here that’s not the case—it’s the same thing.
[Speaker J] No, no, because you’re looking at the act itself, you’re not looking at the outcome.
[Rabbi Michael Abraham] Okay, that is one possible way to see it. A second possibility says no—meaning, no, really.
[Speaker J] Other directions in terms of punishment. What?
[Rabbi Michael Abraham] Right, in terms of punishment—Maimonides, indeed, right, Maimonides and Tosafot. The question is whether one is punished when you commit a transgression—you transgressed and were not killed. The question is whether you are liable to death, and that will certainly depend on this question. What? I’ll give you an example, I’ll give you an analogical example for this matter. Let’s say there is someone—we discussed this—I spoke and said that the Shulchan Arukh does not obligate Sephardim and the Rema does not obligate Ashkenazim, but it is commonly thought that it does. And let’s say according to the common approach that it does, the accepted approach. So there was a Sephardi who desecrated the Sabbath according to the Rema’s view. According to the Mechaber, he desecrated the Sabbath because he acted in accordance with the Rema. Okay? In a Torah-level desecration of the Sabbath—he blew the shofar like the Rema. Did he violate the laws of the Sabbath? Did he desecrate the Sabbath?
[Speaker D] He’ll go to the Ashkenazi hell.
[Rabbi Michael Abraham] Yes—which is hell. Hell.
[Speaker C] Or like Ashkenazi Purim is the Ninth of Av.
[Rabbi Michael Abraham] The question is whether this person is called a Sabbath desecrator, or whether he violated “Do not forsake the Torah of your mother”—the laws of custom. He should have acted according to the Mechaber and he acted according to the Rema. Did he desecrate the Sabbath? It’s a somewhat—of course it’s not the same thing; it’s an analogical example. Because many times there is some primary consideration that brings me to do something in the laws of Sabbath. Now I didn’t do it. Did I violate the Sabbath laws, or the primary consideration? Or the laws of custom? And here too, there is some consideration that says passive omission is preferable, meaning you have no way to decide. I violated that. So did I murder? Or no, did I only violate that consideration of passive omission, not the prohibition of murder. Okay? This comes up often, and I don’t have a good answer to it, I don’t know. In any case, that is one question that arises from the fact that we are talking here about passive omission. The second implication: there is a Tosafot in Yevamot, I think. Tosafot discusses there—someone raised this earlier—what happens when, say, someone throws me off the top of a building, and down below some miserable child is sitting there and is going to lose his life when I fall on him, yes? And he’ll cushion me, let’s say, I’ll survive and I’ll kill him. The question is whether I need to tilt myself to the side and smash and die in order to save him, or whether I may, or perhaps even must, continue falling—and if he dies and I survive, then he dies and I survive. Apparently, one may not save oneself with another person’s life, for if I continue, then in order to save myself I am killing him. No—it’s not an active act. Since the principle is, as Tosafot says, since the principle is a passive principle, passive non-action is preferable, then Tosafot says that in such a case I do not have to, and perhaps am even forbidden to, tilt myself aside. According to Tosafot it is not certain that I am forbidden, because Tosafot’s general position is that a person may be stringent with himself and surrender his life where he is not obligated to, unlike the position of Maimonides, that one who surrendered his life for a transgression where he was not obligated to surrender his life is liable for his own life. Yes, that’s the famous Maimonides. But Tosafot’s position is not like that. In any case, I am not obligated to tilt myself aside—and why? Because just as my life is not preferable to his life, so too his life is not preferable to mine. I am not supposed to die in order to save him. That is not what is written in “who says your blood is redder than his.” What is written there is that I don’t need to do anything, and whatever happens, happens. And in this case, what happens is that he dies and I remain alive.
[Speaker D] What is the value-based argument that distinguishes passive omission from action? After all, even not taking a position is a position.
[Rabbi Michael Abraham] Right, but it is a softer position. I didn’t take—it’s a position, but it’s not taking a position.
[Speaker D] Why does that matter in terms of values?
[Rabbi Michael Abraham] Because I didn’t take one. If I have no justification to do something, I don’t do it. I don’t know how to explain it more than that; to me it seems like simple logic. Meaning, in order to do something, you need a reason. In order not to do something, you don’t need a reason. It’s like “the burden of proof lies upon the one who seeks to take from another.”
[Speaker D] You do need a reason, because the non-action causes an outcome.
[Rabbi Michael Abraham] No, no, no—
[Speaker D] You don’t need any reason? What about “do not stand idly by your neighbor’s blood,” for example.
[Rabbi Michael Abraham] Not so simple. After you decide that I need to do it, then there will be a prohibition of “do not stand idly by your neighbor’s blood.” Why do I need to do it? There is also “do not stand idly by your own blood.” What is the difference between my fellow’s blood and my blood? It’s the same thing.
[Speaker K] And the child in the end just happened to get to the road—he came down from the roof.
[Rabbi Michael Abraham] So they sent me—
[Speaker K] I have to save him.
[Rabbi Michael Abraham] Because I’m liable to death, I’m an agent of the court. Then obviously.
[Speaker K] So—
[Rabbi Michael Abraham] It seems simple to me that then you have to do it. The question is whether you—if I’m such a righteous person, if I’m liable to death. Yes? So there, the Jerusalem Talmud in Terumot that I mentioned earlier opens with a distinction between someone liable to death and someone not liable to death.
[Speaker L] In your case there’s something…
[Rabbi Michael Abraham] If I’m old, I have fewer years left to live than the child. There are considerations that can tilt the scales even though they don’t determine everything. In such a case probably not.
[Speaker L] There are those simulations—who would you kill, and so on. That’s the trolley dilemma, right. So there’s a thief versus a child. Okay. So he’s not liable to death, he’s just some loser.
[Rabbi Michael Abraham] You can’t do that. You can’t make calculations like that. That is what is accepted among the halakhic decisors. Not… In any case, that is one implication of the fact that there is basically here a principle that passive omission is preferable. Passive omission is preferable does not mean that I hand myself over in order to save him, but rather that I do nothing, and if I die then I die. There’s nothing to be done. Since I have no justification to act, I do not act. Like “the burden of proof lies upon the one who seeks to take from another.” There too: you claim one hundred shekels from me. Fine? Now nobody has proof. What do we do? Leave the money with me. Why? Fifty percent that you’re right, fifty percent that I’m right.
[Speaker D] There is a presumption that whoever holds the money owns it?
[Rabbi Michael Abraham] No, without the presumption. Like “these people eat unripe dates”—there are cases where there is no presumption. These are goats wandering around, and the fact that they are with me proves nothing. Right now they’re in my yard. Or “an exchange of a cow for a donkey.” An exchange of a cow for a donkey—the cow gave birth while it was with you; that doesn’t mean the offspring is yours. It just happened to be standing with you when it gave birth. So what? There too: “the burden of proof lies upon the one who seeks to take from another.” Why? Because to do an act you need a reason. The court says: you want me to take the money from him and give it to you? Give me reasons to act. In order not to act, you don’t need reasons.
[Speaker D] For the court, yes—but for me?
[Rabbi Michael Abraham] I’m not the court. Same thing. It doesn’t matter, it’s the same—what difference does it make? The court is in a dilemma where passive omission is preferable; I too am in a dilemma where passive omission is preferable. When there is a positive commandment versus a positive commandment, a positive commandment overrides a prohibition. What happens when there is a positive commandment versus a positive commandment? Or a prohibition versus a prohibition? What do you do in such a case? Passive omission is preferable. Why? Because to do something you need a reason. If there is no reason, I don’t do it. It’s logic—I don’t know how to justify it better than that. Maybe in the background there is also this idea that in the end the Holy One, blessed be He, is here too, and if something doesn’t suit Him, let Him do something. Meaning, what does He want from me? Meaning, I leave reality as it is, and that’s it. It’s like the argument—you may know the mythology of Volozhin, that afterward in the second edition of Stamper’s book on the Volozhin yeshiva he found various documents in the archives and discovered that it was a myth with no basis, but that’s what all of Bnei Brak grew up on, this myth—that they wanted to introduce foreign-language study there, God forbid, Russian, into Volozhin. And there was a huge argument among all the great rabbis of the generation; they gathered there for a meeting about what to do about it, because at that time it really was almost the only yeshiva on that scale. And the Netziv had some initial inclination to accept it, I think. I don’t remember anymore who exactly and what exactly happened, but the Beit HaLevi stood there and said: there’s no such thing. In a situation like this we return the keys to heaven; let the Holy One, blessed be He, do what He decides. We do what we can. And if they close the yeshiva, then let them close it. Meaning, it’s that kind of perspective. Fine, I can do what I can do, and if not, then I’ll do what is right, and if the Holy One, blessed be He, can do something, let Him do it. Okay, so that is one side of the equation: the side of the value of life and the rule that a person may not save himself with another person’s life. The second side of the equation is the law of the pursuer. The law of the pursuer—or the second pole within this framework. The law of the pursuer is when Reuven is chasing Shimon in order to kill him, or chasing a betrothed young woman—which is probably actually the source, because “For as when a man rises against his fellow, so is this matter,” it’s talking about a betrothed young woman. Then one must kill—the pursuer may and must be killed in order to save the one being pursued. On the face of it, this law contradicts the first law, because the pursuer will come and say—let’s say Reuven is chasing Shimon and I, Levi, am the rescuer—now he has to kill Reuven in order to save Shimon. So Reuven will say to him: wait, why are you killing me? Is your blood redder than mine? Why are you killing me in order to save him? So apparently the law of the pursuer contradicts the law that a person may not save himself with another person’s life—the equal value of human life, the “redness of the blood,” that one person’s blood is not redder than another’s.
[Speaker D] And passive omission? What?
[Rabbi Michael Abraham] Passive omission, yes—even more so, right, it’s even passive omission, so all the more what are you doing here. Just let me do what I’m doing—I’m acting, yes? You just remain passive and don’t act, and I’ll keep chasing and kill him.
[Speaker C] He’s a murderer. What?
[Rabbi Michael Abraham] Now here, nonetheless, the Talmud says that the pursuer is killed. By the way, for this various sources are brought. Maimonides brings it from “then you shall cut off her hand,” “For as when a man rises against his fellow, so is this matter.” There are several sources brought here, but it’s quite clear that these sources would have said it even without the sources. Meaning, I once said that Rabbi Medan—I heard from Rabbi Medan—that he knows twenty-two explanations for why the Book of Ruth is read on Purim. He knows only one explanation for why the Book of Ruth is read on Shavuot; he knows only one explanation for why the Book of Esther is read on Purim. Meaning, when there are twenty-two explanations, that means none of them is satisfying. When there is a correct explanation, everyone knows it’s correct, no one looks for more explanations. So here too, with the source for the law of the pursuer, everyone brings a source from here and a source from there, when it is clear that it is logic. It is logic; it begins from logic. The sources, okay, come afterward from here and there. And therefore I continue in the direction I spoke about before: I am speaking here in halakhic language, but in fact these are principles that are valid in every moral and legal system, not only in Jewish law. So how do we really answer the pursuer’s argument? Why is the pursuer not right when he says, why are you killing me in order to save him? His blood is no redder than mine. So there are several answers to this among the commentators. Rashi in Sanhedrin says something like the consideration—who was it that said earlier, with the murderer—that we save him from transgression. Meaning, if we come to kill him, then he will violate the prohibition of murder. So in that case it is better to kill him, because then there is one dead person—since in any event there is one dead person—but at least I prevented the prohibition of murder. Of course we then need to discuss why I do not violate the prohibition of murder in this matter, but okay. So there is something circular here, and I assume Rashi’s reasoning does not stand on its own.
[Speaker I] According to Rashi, let’s say one could say that if he’s a murderer, then he probably won’t keep Sabbath next week—
[Rabbi Michael Abraham] So it’s worth killing him not only to save him. You’re taking it one step further.
[Speaker H] Why isn’t this two against one? What? Why isn’t this two against one? What do you mean, two against one? If I kill the pursuer, then I killed one person. If he kills the other, then the court will have to kill him.
[Rabbi Michael Abraham] Okay, there really are commentators who go in that direction, and they say: I kill him—why do I kill him? Because if I don’t kill him, then he will finish the job, he’ll be a murderer, and then he’ll come to court and the court will kill him with capital punishment as a murderer, and both of them will die. But if you kill him now, then only—
[Speaker D] That’s also circular, because if it were forbidden, then now I—I’ll stand before the court. What? I’ll stand before the court and the court will kill me because I murdered.
[Rabbi Michael Abraham] Yes, not only that—it’s also obvious that if you are really troubled by the value of human life, then the court won’t kill him. What? You’re terribly troubled that two people will die, but then the court kills him. The court kills him because he needs to be killed—so why are you making all these calculations about how many… All these arguments are arguments that come up, but I think they don’t really grasp the bull by the horns. It seems to me—
[Speaker D] Aren’t we simply acting here in place of the court in that way? In an urgent case we act like an agent of the court.
[Rabbi Michael Abraham] Yes, but an agent of the court cannot kill someone who hasn’t yet murdered.
[Speaker D] He can prevent murder.
[Rabbi Michael Abraham] He has the power to prevent murder, and we do not find a law in the court to prevent by—
[Speaker D] by killing someone who is a murderer.
[Rabbi Michael Abraham] In one second. The point is—I’ll get to it—there is such a thing. The point is this. Actually I’ll give a double reasoning that I think is really the stronger reasoning. Let’s start with a reasoning of the earlier kind, what you said. Actually, if I wait, then the court will kill him as a murderer, right? He’ll kill that person and then the court will kill him as a murderer. So it says: look, let you be the court’s agent—carry out the death penalty on someone who hasn’t yet murdered, because you know he is about to become a murderer, but he has incurred the death penalty. We said, we’re not formalists. Meaning, in the end he has incurred death, so kill him already now. Don’t be formalistic. At least the other one will be saved. Waiting now until that one dies and afterward bringing him to court to be killed—it’s not a matter of calculating two against one, no, it’s a little different from that. Rather, he is in any case deserving of death, so what is the problem with killing him? It’s just that meanwhile he has not yet killed; that formalism—so don’t wait, kill him now, at least the other one will be saved. And even if—
[Speaker D] But court—what about court? There aren’t two witnesses. Right.
[Rabbi Michael Abraham] So here the law of the pursuer is its own novelty. Obviously a novelty is needed. The novelty says that here you perform the role of executioner, judge and executioner, and he still hasn’t murdered.
[Speaker D] Even though the judges won’t kill him even if he murders. Why won’t they kill him? Because there is only one witness, only you are a witness.
[Rabbi Michael Abraham] There aren’t two witnesses, obviously they won’t kill him if only you—that’s… So here there is room to discuss it a bit, because the question is whether the reason the court doesn’t kill him is an evidentiary problem. Yes. It doesn’t matter. But he still deserves to die, and if he deserves to die, then kill him. Meaning, the fact that there is an evidentiary problem and they don’t kill him doesn’t matter—but he deserves death. If he deserves death, we’re not formalists, so kill him in order that the other one not be killed. And this is not—it’s exactly another expression of the distinction I mentioned earlier, that it’s not the point of one dead person versus two dead people, it’s not that outcome-based issue. Rather, the point is: he is in any case liable to death. In another moment he’ll be liable to death, so don’t be formalistic—do it now.
[Speaker D] There’s another practical implication to that: if he is liable to death and through this I kill him, then maybe I have no obligation to disable him without killing him? Avner and Yoav’s claim. After all, if I—am I obligated to use the minimum harm necessary to prevent murder or not?
[Rabbi Michael Abraham] No, you are obligated, because if you succeed in preventing it, then he is also not liable to death. After all, if you can prevent it without killing him, then he also is not liable to death.
[Speaker J] Why do you think this is so controversial?
[Rabbi Michael Abraham] If someone comes—
[Speaker J] to kill me, I have the right to defend myself, right? That makes sense. Let’s assume. Now if there is someone else, he has the right to defend himself. I can help him, and he is in the right and the other one isn’t in the right.
[Rabbi Michael Abraham] You help him and not the other one—help the other one.
[Speaker J] No, because he’s not—there’s—clearly he’s not in the right, after all he’s the pursuer.
[Rabbi Michael Abraham] Ah, that—so that is my next reasoning. I say that behind all these things there sits some intuition that says this, and with this I’ll finish. There is some intuition that says this: “Who says your blood is redder?”—that applies in a situation where from heaven we were thrown into some situation, or there is some third party, I don’t know what, and now the question is whether it’s my life or his life. Then I can’t decide. But if there is someone who himself created this equation of either me or him—the pursuer—then let him not pursue. Meaning, he himself created the situation that forces me to kill him in order to save the pursued person. Wait, wait, wait—there is some problematic situation here: you’re killing me in order to save him? You cooked up this situation. You can’t rely on a situation that you yourself cooked up. The whole thing, “Who says your blood is redder?”—that is in a place where you’re not to blame, where no one is at fault. Then the question is who will pay with his life. Whoever will pay with his life is whoever the Holy One, blessed be He, decreed. I cannot intervene. But in a place where a person himself cooked the soup, himself created the situation, he can’t now say: look, there’s soup here, why are you eating the soup? What do you mean? You cooked it—don’t cook it.
[Speaker F] That, that assumes that the murderer is acting intentionally.
[Rabbi Michael Abraham] You’re getting ahead of me step by step, right, that’s the next step. We’ll talk about that now. What happens with a pursuer who is a minor, or a fetus, or mentally incompetent, or things of that kind. But later.