Dilemmas Concerning Human Life – Lesson 2

[Rabbi Michael Abraham] We’re dealing with the laws of murder and preserving life, or dilemmas involving saving life. I said we’d be discussing topics that speak both to military-security issues and to medical issues. Public and private military-security issues, and also medical issues, because the underlying basis is overall a similar basis. And my goal, beyond clarifying the topic itself, is to try to show how one tries to build an orderly conceptual framework for thinking about these things, so that when all kinds of questions come up we have some kind of relatively organized toolkit for dealing with them—which usually doesn’t happen, I think, especially on topics like these. So I started with the value of human life. I spoke a bit about the question of how that stands in relation to the meaning of life, to fulfilling commandments, the question whether that really is the meaning of life—whether life serves the fulfillment of commandments or the other way around. We saw two answers in the Talmudic text in Yoma, and I said that in the end, “Desecrate one Sabbath for him so that he may keep many Sabbaths” as against “and live by them.” And I said that in the end it seems they are not in dispute, and the halakhic decisors bring both, and so yes, life does have value in itself. On the other hand, life is not an absolute value. There are three prohibitions that override the value of life, where one must be killed rather than transgress: idolatry, forbidden sexual relations, and bloodshed. Right now I’m talking mainly about bloodshed, because that’s really our topic. I said that if we look at this issue of bloodshed overriding saving life, there are two principles here that stand opposite one another. One principle is that one life is not set aside for another, or that a person does not save himself through the life of another. Therefore if someone threatens me so that I should kill someone else, and if I don’t do it he’ll kill me, then I’m forbidden to kill the other. Meaning, I have to die. Why? Because the Talmudic text says this is logic: “Who says that your blood is redder? Perhaps that man’s blood is redder.”

[Speaker B] And also the reverse.

[Rabbi Michael Abraham] I said also the reverse, meaning even in a case where I have to do some act in order to save him and sacrifice my own life—that too is forbidden. In both cases no one is preferable to the other, and the principle is some kind of passive principle, the principle that passive omission is preferable. It’s not that the other person’s life is always preferable to mine; obviously that’s not what is being said there. I mentioned Tosafot in Yevamot, which talks about the case where I’m falling from a building and I’m about to kill someone—a child, doesn’t matter. Do I have to tilt myself to the side and smash myself in order to save him, or do I fall on him and I survive while he probably finishes his career? So Tosafot says no, I’m not supposed to tilt myself to the side, because his life too is not more—his blood is not redder than my blood. It’s a principle of passive omission being preferable. Whatever happens, happens; you’re not doing anything. That’s on one side. On the other side stands the law of the pursuer. The law of the pursuer says that if Reuven is chasing Shimon to kill him, and Levi comes along—this is the pursued, the pursuer, and the rescuer—the rescuer may and must kill the pursuer in order to save the pursued. I said that on the face of it this seems to contradict the first principle, because the pursuer could say to the rescuer: why are you killing me? Why is that guy’s blood—the pursued man’s blood—redder than mine? You’re killing me in order to save him, but one life is not set aside for another. So I said there are several answers to this. Rashi, for example, writes in a way that implies—and it’s pretty clear—that basically the permission to kill a pursuer, or even the obligation to kill a pursuer, is founded on the fact that I’m saving him, the pursuer. I’m saving him from a sin. Here, I brought the Talmudic text. Where is it? In Sanhedrin. The Mishnah on 73a regarding the stubborn and rebellious son. On 73a: “And these are those whom we save at the cost of their lives: one who pursues his fellow to kill him, one who pursues a male, and one who pursues a betrothed young woman. But one who pursues an animal, desecrates the Sabbath, or worships idols—we do not save them at the cost of their lives.” So the expression—what does “we save them at the cost of their lives” mean? Do we save the pursued person through the life of the pursuer? “We save them at the cost of their lives” means that those listed here—one who pursues his fellow to kill him—we save him with his life. What does “save him” mean? Do we save the pursued? Not him! So Rashi says: “We save them from the sin.” Meaning, I kill him because by doing so I’m actually saving him from the sin of murder. And that’s how the later authorities explain it; I think it’s pretty clear what underlies this. This is exactly the difficulty I spoke about earlier. What gives you permission to kill a pursuer in order to save the pursued? After all, there’s the principle of “Who says your blood is redder?” The pursued person’s blood is not redder than the pursuer’s blood. So why do I kill the pursuer in order to save the pursued? So Rashi says: because if I kill the pursuer, then I also save him from the sin. So there are two things here. First of all, that tips the scales. I said the principle of “who says” is a principle of passive omission being preferable. There’s parity between the two sides, so neither is preferable, and therefore it’s better to do nothing. Once that’s the situation, if there’s some tilt in favor of one side, that can decide it. Now, if by killing the pursuer I gain both saving him from the sin and saving the life of the pursued, whereas if I don’t kill the pursuer then I don’t save him from the sin, though I do save him—but I don’t save the pursued—then overall it’s still preferable, in the total calculation, to kill the pursuer.

[Speaker B] Let’s say in a situation where the pursued person

[Rabbi Michael Abraham] He’s literally about to commit an offense, so maybe yes, then once again it would fall under “passive omission is preferable.” He’s saving the one being pursued; that’s possible, that’s possible. And as for a pursuer, that connects to Zimri—we’ll get there. A pursuer hasn’t sinned yet. What? Okay, we’ll get to that in a moment. But Rashi offers the explanation for why this is preferable, why the life of the pursued takes precedence over that of the pursuer: because with the pursuer I’m also saving him from the offense. Now, suppose the pursuer is a case of rescue law—does that mean a religious court has to declare, “Here we have a case of a pursuer”? No, of course not. The law of a pursuer—anyone who sees it is the court. And if the pursued turns his sword around, like in the case of Zimri, let’s say—hypothetically, if he turned it the other way? No, of course not. Because he turns his sword in order to defend himself, so he isn’t a pursuer. If I’m now the rescuer, Levi, and then Judah comes along, okay? He sees Levi standing there about to kill Reuven, who is about to kill Shimon. Is he allowed to kill me because I’m a pursuer? Of course not. I’m rescuing; I’m not pursuing. And if the pursued turns the sword around? What? If Zimri had turned the sword toward Pinchas and killed him? “If someone comes to kill you, rise early to kill him first”—he would not have been killed. The Gemara says that; we’ll get there. We’ll get there, yes. On the principled level, how is this law of a pursuer different from self-defense? It’s not different from self-defense; it’s not a different law from self-defense. Just as you are allowed to defend yourself, I’m also allowed to defend you. Same thing. And doesn’t this whole discussion also revolve around self-defense? Which discussion? This is the discussion about self-defense. The law of a pursuer is self-defense. What do you mean, same thing? It’s the same law. But the Mishnah and Rashi also refer there to other offenses of a pursuer, like a betrothed maiden, and therefore he also has to say that it’s because you’re saving them from punishment. Right, but what about someone pursuing in order to kill? Fine, say that about the others—but what about someone pursuing in order to kill? Fine, about that we already wrote. Okay, so I’m talking about—I said I’m focusing on someone pursuing in order to kill, and in a case of someone pursuing in order to kill, that kind of rationale apparently comes to decide things.

There’s another consideration; I mentioned it last time too. There is basically an argument that says the following: the person whom the pursuer is chasing in order to kill him—if he kills the pursued, then he becomes liable to death, right? In religious court, as a murderer; a murderer is liable to death. Now they tell me: I’m standing here, I’m the rescuer, I’m standing here and asking myself whether to kill the pursuer. Why would I? He’s not liable to death; he hasn’t killed yet. So if I’m a formalist, I’ll wait. After he kills, I’ll bring him to court, and then the court will kill him. So what have you accomplished? Now two people are dead. Meaning, the pursued is dead and the pursuer is dead. Instead, they tell me: listen, true, this is a bit of a deviation from the ordinary legal rules—you, on the spot, are the judge. Sentence him to death before he kills. Meaning, don’t wait for the stage where he kills, even though that’s what should have been done from a legal standpoint for two reasons: first, without his having killed, he isn’t liable to death; and second, I’m not a judge—it should go to court and have a proper process. But the price of that is that two people will be killed, and there’s no logic in that. Therefore they tell me: listen, if it’s clear to you that he’s going to kill, then kill him. There’s no choice. You be the judge; kill him; afterward the court will examine whether this was really justified.

But in most cases they wouldn’t kill him—for example when he’s the only one who saw it, then there aren’t two witnesses and there wasn’t prior warning. No, that’s a different question. You’re asking what happens in a case where there is no possibility of taking him to court and having him executed. Fine, never mind—but on the principled level, what are you saying about a case where there’s no way to take him to court and execute him? But that doesn’t matter, because on the principled level he is liable to death anyway. He is as good as dead. Meaning, he is liable to death; the Holy One, blessed be He, will kill him. After all, the Gemara says that someone who wasn’t executed because there wasn’t enough evidence—the Holy One, blessed be He, will bring them to one inn and deal with him. So in any case both of them die; so on the principled level it’s still the same thing. Yes.

There’s another law here: if someone enters my house at night, then if the sun has not risen upon him, then supposedly he is already dead. A burglar tunneling in. A burglar tunneling in is already dead. Can’t we expand the rule of a burglar tunneling in to a situation where the law allows us to regard a person as if he is already dead—similar to the United States, with hands on the steering wheel? State law? Yes, exactly—state law. Jewish law. Well? Do you know the thing about both hands on the steering wheel? Have you heard of it? No. There were some cases there of people who shot police officers who came to check their licenses. So now the rule is this: if you take your hand off the steering wheel, he’s allowed to shoot you. Taking your hand off the wheel isn’t a capital offense, but that’s the rule that was set. Now once everyone knows it, does that make it legitimate to shoot a person? Why? What—if I commit suicide, is it permitted to kill me? Excuse me? That doesn’t make it legitimate. Of course not. So the fact that he entered by tunneling means he knows I’m allowed to kill him. Wait, let’s see. So if a burglar tunneling in gets there—we’ll also get to a burglar tunneling in later. It doesn’t have to be—no, in a moment we’ll see, we’ll see, that’s the difference. The Gemara ties it to the law of a pursuer, the burglar tunneling in, but we’ll get there. What? Is that derived from it? What? Is the burglar tunneling in derived from the law of a pursuer? The Gemara says—the Gemara says it’s because he will kill me, therefore I’m allowed to kill him. So that’s a permission. Okay, but that’s a permission. The law of a pursuer appears nowhere. Maybe we learn the law of a pursuer from there. Fine, that’s a question.

Okay, I mentioned last time—someone also asked me by email, or rather, I don’t remember, someone once asked me by email before or after the previous class—after I said that there is a logical argument here. So Rashi brings a source for this in Ketzot HaChoshen; Ketzot attacks it, and Maimonides also writes a source. No, Maimonides—that’s only in Ketzot’s attack. Rashi also brings a source for the law of a pursuer. And I said, right, that’s a source, but the underlying conceptual principle behind it is basically the reasoning that one may kill under the law of a pursuer. The fact is that every legal system has the law of a pursuer even without verses and textual sources. And it’s obvious—any sensible person understands that there is a law of a pursuer. What is the idea that basically stands behind this? In my opinion, it’s a third idea—not either of the previous two, and maybe the previous two are only a sharpening of this idea.

And that idea basically says this: the principle of “what makes you think your blood is redder?”—that means the blood of one person is no redder than the blood of the other—applies when the situation was forced on both of us. We are not involved parties. Some situation was forced on us here: either me or you. I’m forbidden to kill you in order to save myself. What did you do to me? You did nothing to me. What can I do? I got into trouble; I’m stuck with it. But in a place where the pursuer creates the situation—he is chasing the pursued and is about to kill him—and now I want to save the pursued; I, the rescuer, want to kill the pursuer in order to save the pursued—can the pursuer say, “Listen, what makes you think your blood is redder than mine?” You created that equation. You created a situation in which if you are not killed, then he will die. Meaning, we have to choose whether to kill him or kill you. So if you created that equation, you can’t use it to defend yourself. In other words, don’t pursue. Don’t create that equation, and then I won’t have to deliberate whether to kill you or let you kill him. You create an equation and then say, wait, wait, wait—why? His blood isn’t redder than mine. Neither of your bloods is redder; stop chasing him and that’s it. If you’re chasing him, then don’t use the fact that you yourself are chasing him. You created the situation; you can’t use it to protect yourself.

Now I’ll show you later that this idea is a very far-reaching one. Here we’ll get to a burglar tunneling in and to other things. My claim will be that even someone pursuing property may be killed, because he created the situation. Meaning, this reasoning goes very far. Pursuing property? Yes. Fine, we’ll get there. In any case, it seems to me that this is the fundamental logic behind these matters. And the offenses and all these issues are additions.

Now I want—up to this point I think we more or less discussed this last time—now I want to continue. Basically, what lies behind these reasons of offense and punishment for murder, the first two reasons I gave for why it is permitted to kill a pursuer—because that saves him from an offense, and also because in another moment he would in any case become liable to death, so I’m already implementing that now—what does that mean? It basically means that I already see him now as liable to death. There is some dimension here of guilt and a punitive dimension. Right? That’s basically what enters this whole picture. And meanwhile this is still Torah-level. Meaning, until now we have only seen questions of murder and preservation of life. Meaning, how do we protect lives? When is it permitted to kill and when is it forbidden to kill in order to protect? The discussion was therefore—and that’s also why I spoke about it last time—that in the background there is always the consequentialist aspect. Meaning, it’s less a question of—even if I kill him with my left hand, or indirectly, or by all kinds of indirect methods, it doesn’t matter. If in the end I destroy a life, then the result is a life lost. And here the whole consideration is really a consideration of what the optimal result is, what the best result is: to protect him, to protect him, to kill him in order to protect him, not to touch him—various things of that sort.

But in this situation another dimension keeps peeking out from different places, and that is the punitive dimension. We see it in Rashi here, about saving him from an offense. We see it in the second rationale that I mentioned: that I punish the pursuer with the death penalty for murder—even though he hasn’t yet murdered—but I move it up so that the pursued won’t die. So once again, according to this view, killing him is carrying out a punishment. It is carrying out a punishment. What does that mean? It means that killing the pursuer is not only protecting the pursued. Protecting the pursued is only the justification for how I’m allowed to impose the punishment on him even before he committed the offense—that is, because there’s no point waiting for the pursued to die. But why is it permitted to kill him at all? Why is it permitted to kill him at all? Because he deserves punishment, because he is a murderer. Meaning, there is a punitive dimension at the root of this permission to kill the pursuer, where the additional considerations, of course—who are you, you’re not a judge, he hasn’t murdered yet, there are all sorts of other considerations here—so that’s where all the previous rationales I brought come in.

I’m saying, then this should apply to the fetus and the woman in labor. Wait, we’ll get there, we’ll get there, we’ll get to everything. That’s why I said I’m building this step by step—those are exactly the places I’m aiming for. You’re getting ahead of me. I’m trying to build this in an orderly way so we can see all the implications, and then each thing will fall into place.

So this punitive dimension is also seen elsewhere, quite clearly. The Gemara in Bava Kamma 117. The Gemara there discusses what happens with a pursuer who breaks vessels while running. The Gemara says that the pursuer is exempt from paying for the damage because of the rule that when a greater punishment applies, the lesser one falls away. Meaning, since the pursuer is liable to death, and someone liable to death does not also become liable for monetary payment—that rule applies. This is proof that it’s a punishment. Yes. What do you mean, “the greater punishment applies”? He isn’t liable to death, seemingly. The law of a pursuer is not that he is liable to death. I kill him in order to save the pursued. What am I—a judge, an executioner? What do you mean liable to death? He didn’t murder. He didn’t kill at all. Yes. What do you mean liable to death? We see in the Gemara—that’s where the understanding comes from that I mentioned earlier, the second understanding I mentioned earlier—that when he is killed, it is the implementation of a death penalty. Why is it the implementation of a death penalty? Because we see in the Gemara that when he breaks vessels, the rule of the greater punishment applies: he is liable to death, so he is exempt from paying for the vessels.

So why, if I can disable him without killing him, am I obligated to do so? Because then he isn’t liable to death. Right? No. He is liable to death because he is a pursuer. No. He is liable to death only in a case where he really will kill in the end. Can you prevent his killing? But here he would kill in the end. Right, but if you are here, then he won’t kill. What you’re saying is a loop. Of course it’s a loop, but that loop is correct. Because if I injure him now, then he won’t kill and everything is fine. It’s a consistent loop, in the positive sense. It’s a loop that doesn’t contradict itself. What’s the problem? I’m allowed to be in a loop that doesn’t contradict itself. It’s a loop that remains consistent.

Fine, this reminds me of what I mentioned yesterday, I think. They say: the Vilna Gaon fought against Hasidism. So the Lithuanians say: you see, the Hasidim turned out to be perfectly good Jews in the end—what did the Vilna Gaon want from them? As if he thought there was Sabbateanism there, and deviation from Jewish law, and maybe they’d all leave for some kind of new Christianity. So the real Lithuanians say: of course—why did they turn out that way? Because the Vilna Gaon fought them. Meaning, if he hadn’t fought them, that’s what would have come out of them in the end. But because he fought them, he saved them. By the way, that’s not absurd. It’s not absurd. Again, without now relating to a generalization about all Hasidism, but that kind of reasoning is not absurd at all. Meaning, sometimes the action I took really does bring good results, and then people ask, wait, what justified doing that action—after all, everything turned out fine. Sure, everything turned out fine after I took the action. That proves nothing. That’s why you can never really learn from history.

In any case, that’s what Ben-Gurion said: historians are experts in what was; they are not experts in what will be. So returning to our subject: the claim is that there is some punitive dimension in the permission to kill a pursuer—in the permission, or really in the obligation, so it isn’t just a permission. I’ll only add in parentheses: of course there’s a novelty here, first, that an ordinary person can be a judge and executioner, and that this is done even without an actual act of murder having taken place, and nonetheless he is regarded as someone liable to death. And the second novelty is—what about Pinchas too? What? Pinchas also killed him. So? So he too was a judge. Yes—“one who cohabits with an Aramean woman, zealots strike him”—that’s something else; that’s not the law of a pursuer. But it’s the same sort of situation where you take the… In any case, only in parentheses, I’ll just add that there is another novelty there in the case of the pursuer who broke vessels: payment for damages is also considered a punishment. Because if payment for damage were not considered a punishment, then the other side, the one whose property was broken—obviously, how does the rule of the greater punishment apply? Okay—even if I accept that killing the pursuer is a punishment, that he is liable to death—but payment for the vessels is compensation. You broke vessels, so pay. What does the rule of the greater punishment have to do with that? We also see the other side there in tort law—there’s more to elaborate there—but payment for property damage also has a punitive dimension. That’s another issue in that Gemara there. Fine, that’s only in parentheses.

In any case, what follows for our purposes? The conclusion is that in the law of a pursuer there is also a punitive dimension. Now wait, wait—you’re simply assuming that the law of a pursuer has a punitive dimension, and therefore you’re projecting that onto torts? No, I’m not projecting. I’m saying—I thought it worked the other way. What? I thought that if you have a punitive category in torts, therefore you have a punitive category here too. No, not therefore. After all, there is the rule of the greater punishment. The rule of the greater punishment has to be between two punishments. Right. So this is a punishment and that is a punishment; it isn’t because—there isn’t a “because.” So it comes out that you prove from here that the law of a pursuer is a punitive law. I’m saying I prove both things, but one does not derive from the other. You can’t prove both if you assume one and prove the other. No, of course—because there is the rule of the greater punishment. There is that rule between two things, but there is no such rule unless both things are punishments. Both have to be. Not because you see the rule of the greater punishment—yes, the Gemara says the rule of the greater punishment—not one punishment and one non-punishment; no, no, both have to be. There is such a rule if both are punishments; if both are not punishments, there is no such rule—not according to you, not according to you. No, if you see that rule between A and B, okay? And also A is a punishment—no, even if I don’t know that A is a punishment—no, even if I don’t know that A is a punishment. We’re getting too deep into this up to here. Okay, so the rule of the greater punishment exists only between two punishments. Between a punishment and a non-punishment, or if both are not punishments, there is no such rule. That’s it.

Anyway, this punitive dimension, as was already raised here earlier, comes to expression in the law of a minor pursuer. Or at least it can come to expression in the law of a minor pursuer. The Gemara in Sanhedrin 72b says: Rav Huna said, “A minor who is pursuing may be saved at the cost of his life.” Again, “saved at the cost of his life,” yes? This is even more interesting here because it’s a minor. Now “saved at the cost of his life”—if Rashi says “to save him from sin,” a minor doesn’t commit an offense, so what does “save him at the cost of his life” mean? In another moment.

So Rav Huna said, “A minor pursuer may be saved at the cost of his life.” On the face of it, this is actually the practical difference as to whether there is a punitive dimension in the law of a pursuer or not. If there is a punitive dimension in the law of a pursuer, then the law of a pursuer should not apply to a minor; there should be no permission to kill a minor who is pursuing. If there is a punitive dimension in the law of a pursuer, then it applies—sorry, then it does not apply to a minor. If there is no punitive dimension, but only saving the pursued, then one can kill even a minor. So maybe it’s both, but the question is whether the punitive dimension is necessary—because without it there wouldn’t be—and what does the Gemara… that’s how it seems.

But you can also see from Rav Huna’s wording that it isn’t precise. Because in Rav Huna’s wording he says, “A minor pursuer may be saved at the cost of his life.” As I said earlier, Rashi explained that “saved at the cost of his life” means to save him from offense. Now if so, according to that, what Rav Huna said here is internally contradictory. Because Rav Huna says that the law of a pursuer applies to a minor, so according to what I said before that probably means that there is no punitive dimension in the law of a pursuer, because otherwise how would it make sense to apply it to a minor? But then he says “may be saved at the cost of his life”—to save the minor. That means I’m saving him from offense. So that is punitive after all. So the answer is: no. Apparently it’s not punishment, but it is still offense. Meaning, the offense of a minor is probably also an offense—at least according to Rashi, that’s what you’d have to say—it is also an offense, except that since he is a minor there is no understanding, no legal competence, so he is exempt from punishment. But that doesn’t mean he is not committing an offense. And there is a practical consequence to this: the Pri Megadim in the Introduction speaks about it, and elsewhere as well. In several places we see that a minor’s offense is also an offense; he is just exempt from punishment because he is not legally competent. So “to save him from offense” does apply, but punishment seemingly does not apply to him at all. So for example, the second explanation I gave earlier does not apply here, because there is no punitive dimension here. There may be a dimension of wrongdoing, but not a punitive dimension. Because if there were a punitive dimension here, then in the case of a minor it wouldn’t make sense. A minor is certainly exempt from punishment.

But in Bava Kamma we see that there is a punitive dimension. In Bava Kamma we see the rule of the greater punishment. What would happen if a minor is pursuing a person and breaks vessels in the process? It’s true that a minor is also exempt from paying for the vessels—but the Hagahot Ashri says that if he becomes an adult, then there is a rule that he does have to pay. Now what happens after he grows up—does he have to pay, or does the rule of the greater punishment apply to him? Because at the time he incurred the obligation, he was liable to death. If a minor has no punitive dimension, then that rule would not apply here. And that could be—by the way, I didn’t find anyone who says this—but it could be. Why? Because what this would basically mean is that both things are present, but not both are necessary. Meaning, if an adult is pursuing, then there are two things here. There is permission to save the pursued at the cost of the pursuer’s blood, and in addition he is also liable to death. Two things. But even without his being liable to death, it would still be possible to kill him; proof from the case of a minor. Rather, true, if he is an adult then he is also liable to death, and consequently the rule of the greater punishment applies in the case of an adult because he is also liable to death—but it isn’t that one really needs that death liability in order for there to be permission to kill the pursuer. One could say such a thing, and then that means that there is a punitive dimension here, but it is not necessary. Meaning, where it applies, it applies, but the permission to kill the pursuer exists even without it. Okay, that’s one possibility.

The Gemara… Is there another session? What? Is there another session? I’ll come back. Okay.

You can also see this in general. As I said in the previous class, every legal and moral system recognizes this law: a minor pursuer may be killed. Meaning, think of a child with an RPG. Yes, we’ll get to current events too, we’ll get there—little kids, RPGs, and all those things. I hope to get to that in order to show how these things can be applied. But yes—just some little kid, I don’t know, takes his father’s rifle and starts shooting in the street. He understands nothing, isn’t responsible for his actions, he’s really a child, an infant, and starts shooting around. Nobody denies the permission and the obligation to kill him. They kill him in order to save people. Even if there are many people there—even if it’s just one person, only one person in the street. Now the child takes the rifle and aims it at him—am I allowed to kill the child? The child understands nothing, isn’t responsible for his actions, isn’t liable to punishment. If that is the only way to prevent it, yes—certainly. Why? Meaning, if one needed verses for such a thing, there are no verses. What do you mean verses? In a non-Jewish legal system. It is obvious to everyone that this is simple logic. Why is it simple logic? Because the pursued must be saved. Who said the blood of the pursued is redder? What tips the scale? Apparently the same reasoning I mentioned earlier sits here too: you created the situation.

Now notice, this is an important point: “you created the situation” doesn’t mean “it’s your fault.” A minor has no understanding, meaning it’s not… Usually it’s very easy for us in the case of an adult pursuer—you created the situation, so don’t cynically use it to defend yourself, to say “don’t kill me—what makes him preferable to me?” That sounds cynical, okay? Clear to all of us. But when you’re talking about a minor, it’s not like that. Because the minor took the rifle and is playing with it; he understands nothing. So he created the situation not because he really intends to kill and understands it and made a decision—because then that really would be cynical, and then it’s obvious you can kill him. But here, no, it’s not like that. So why indeed isn’t there the issue of “what makes your blood redder”? Why is it really permitted to kill the minor? That is not a simple matter.

We see that this issue of “you created the situation” is deeper than criminal guilt. Meaning, even if you are not guilty—and I say again, this isn’t specifically Torah law; everywhere it’s like this. Meaning, the mode of thinking everywhere is like this. I’m trying to illustrate this all along the way so you can see that all the principles we’re discussing here appear everywhere. I’ll also show you the punitive dimension in general thinking, not specifically halakhic thinking. Meaning, it’s all there. It’s the same thing. Jewish law here works exactly the same way, I think, as ordinary thinking, only more systematically.

The claim is that once you created the situation, then what can you do—you have to resolve it. Now not because you are guilty, but it’s a kind of argument like “your luck caused it.” You know that expression? “Your luck caused it,” meaning—I don’t know—I took… It appears in the Gemara in “one who hires laborers,” I think. I hired a worker to water my field, and in the morning rain fell and watered the field. Do I have to pay him? No. Do I have to pay the worker? Well, in the Gemara it’s not so simple, and the discussion there is whose luck caused it. Meaning, true, he did the work—or rather, we signed a contract and he relied on that, at least to pay him as an idle laborer, or whatever the amount is, that’s not the issue right now—but the question is: in whose favor did this happen? Meaning, someone here benefited. Now it’s not that he brought the rain; he isn’t claiming, “I’m responsible, I brought the rain.” No. But still he might say, listen, what can I do, it’s your bad luck, you got stuck with it—if you obligated yourself to me, then that’s it.

Meaning, there are often situations in which it isn’t because I perform an intentional act and am responsible for it that I bear the consequences. Rather, it simply turned out that way. It’s like in tort law, perhaps. It says—meaning, when my property causes damage, if it happened by unavoidable accident, the owner is exempt from paying. Okay? But when a person himself causes damage, a person is always forewarned. There is a dispute among the medieval authorities whether that applies even in a total accident, but let’s assume yes for now. So a person is always forewarned—that means even if it happened by accident, I have to pay. Now, there one has to understand why exactly, if it happened by accident, in the case of property damage I’m exempt, because my ox gored, but I guarded it properly, and somehow it got out by accident. Fine? I’m exempt from paying. Why am I exempt from paying? Seemingly because I’m not guilty. Remember? We spoke about the punitive dimension in torts. So that’s exactly what… the punitive dimension in torts, right? So here is an example. Since I’m under compulsion, I’m exempt, because I did what I was supposed to do; I don’t deserve punishment. But on the other hand, the injured party doesn’t deserve punishment either. After all, his ox was gored; he also isn’t guilty of anything. So why are you imposing…? In the end someone has to pay here. Meaning, either he loses his ox, or you pay him for what you did. Now your ox gored. So if your ox gored, then pay. Not because you’re guilty, but because your luck caused it. Your ox made the problem—pay. Not because of guilt.

In the Gemara we see that no—the injured party’s luck caused it. But with a person, for example, when a person causes damage, even if it happened by accident, he really does have to pay. Why? Because there it was he himself who did it. Once you yourself did it, even if it was without intent and without responsibility, you are under complete compulsion—fine, but he too is under complete compulsion and was injured; how is he more guilty than you are? So the whole question is: there is a result here, and that won’t go away. The question is on whom to impose it. Now when I ask that question, it isn’t a question of guilt in the criminal sense; rather it’s a question of who, in effect, heaven is pointing to—who, basically, is the one who got stuck with it. That’s the question. Now I think this kind of consideration applies to a minor pursuer. Meaning, when the minor is pursuing, the claim is not that he is guilty. That’s not the point. But he creates the situation. Meaning, he took the rifle and fired. Why should I die because he’s not guilty? Am I guilty? I’m not guilty either. And now the question is: what can you do, there are two people here who are not guilty. What can you do? Meaning, it depends on who is basically generating the problem. The one generating the problem is the minor. It’s tragic, poor kid—he isn’t guilty, what can I do? But he is the problem. What am I supposed to do? He’s the hot potato—you have to neutralize him. Do you understand? So on the one hand it’s not a question of guilt, but on the other hand it also isn’t only a question of saving the pursued. There is some kind of guilt here, in quotation marks. Meaning, it’s not guilt in the criminal sense, of someone who made a decision, but it is guilt in the sense of who is responsible for the creation of the situation. Okay? It’s a subtler kind of guilt.

Yes. What happens in a case of an adult who does a legitimate action without knowing it will cause death? For example, someone who booby-traps… So let’s leave that for later, because I want to complete the picture. After that, once we have the picture, we can try to think about it. I don’t want to get into that right now.

The Gemara continues and says as follows: so basically up to this point the picture is that we discussed the value of life, we discussed two conflicting principles: one life is not set aside for another life—you may not save yourself through your fellow’s life—and opposite that, the law of a pursuer. And I explained the difference between a pursuer and the prohibition on saving yourself through your fellow’s life, and I added that in the law of a pursuer there is also a punitive dimension. We’ll soon see what the implications are, because on the face of it, aside from perhaps the case of a minor, with respect to the laws of preserving life this has no implications, because we saw that in the case of a minor, where there is no punitive dimension, the law of a pursuer still applies. We’ll see later that this also has implications in the laws of preserving life. By the way, with regard to the law of a minor, is Rav Huna a lone opinion? No, no—that is the law in practice. Okay. There is a dispute about it, but that is the practical ruling. So that is more or less the picture. From here on it’s mainly implications. But the implications are not so simple. Okay? So I’ll show you how this picture can be applied in various places, and things look much more sensible and less gut-based. One can understand where each thing is located.

So let’s begin here with the Gemara, immediately after Rav Huna’s statement. “A minor pursuer may be saved at the cost of his life.” Rav Huna holds that a pursuer does not require prior warning; there is no difference between an adult and a minor. From behind these words—why doesn’t prior warning need to be given? Because this is not punishment. Right? That is basically what lies behind the statement. So the Gemara says: Rav Chisda raised an objection to Rav Huna: “Once its head has emerged, one may not touch it, because one life is not set aside for another life.” This is a Mishnah in tractate Ohalot. The Mishnah there says: what happens with a fetus that endangers its mother’s life? A famous Mishnah. A fetus that endangers its mother’s life is killed in order to… But if it has already put out its head, then it is already a real person; it is considered a person, not just a fetus. Some say if most of it has emerged; there are different versions among the commentators, not important right now. But the text before us says “its head has emerged.” Once its head has emerged, it is already a normal person, and a normal person cannot be killed in order to save the mother, because who says your blood is redder? That is what the Mishnah says.

So on that the Gemara asks—or Rav Chisda asks Rav Huna from that Mishnah—“Once its head has emerged, one may not touch it, because one life is not set aside for another life.” But why? It is a pursuer. After all, this is the law of a pursuer. A pursuer—even if he is not just a fetus but an actual person—is killed. So what difference does it make that there is life-value here? If he is a pursuer endangering the pursued, one may and must kill him. So what would you say? That both are pursuers. That he isn’t really a pursuer, or both are pursuers, or he doesn’t have the law of a pursuer because, after all, he is just in the situation; he isn’t performing an act of pursuit. If that’s so, then why, in the case of a fetus, do we kill? After all, when it is still a fetus and its head has not emerged, we do kill. If there is no law of a pursuer, then what? So why kill the fetus? Because the principle is that there is no law of a pursuer here at all. That is how most of the medieval authorities understood the sugya: there is no law of a pursuer in this situation at all. Why? This is a situation from heaven into which we have been thrust; it’s even worse than a minor taking a weapon. But Tosafot do still use the term pursuer. What did you say? “It is a pursuer,” and they push that aside. Maybe I didn’t read the answer. The Gemara says: “There it is different, because heaven is pursuing him.” He is not a pursuer. Heaven pursued him. I didn’t do it. I’m not pursuing. What does that mean?

So most of the medieval authorities learn the sugya here like this: in practice, in a case of a minor who pursues, he is a pursuer—that’s what Rav Huna says. A minor who pursues is truly a pursuer, and therefore we kill him. But here, if its head has emerged, we do not kill it. We do not kill it not because the law of a pursuer does not apply to a minor—for according to Rav Huna it does apply to a minor—and not because he isn’t a person, because he is a person: once its head has emerged, it is already fully a person. Rather, because he did not create the situation. Because this is not pursuit at all. It isn’t merely a lack of guilt—there’s also a lack of guilt in the case of a minor—but rather he did not create the situation at all. What I said about the minor was that although the minor is not guilty, he did create the situation, and therefore he is the one who must resolve it. Okay? But here the Gemara goes one step further: a fetus whose head has emerged did not even create the situation. They put him there. What is he guilty of? Not “what is he guilty of” in the sense of a minor—he’s in any case not guilty—but rather he did not create the situation. This is not a situation of pursuit at all. “Heaven is pursuing him.” The Holy One, blessed be He, pursued her. It has nothing to do with the matter. Therefore here there is no act of pursuit at all. Since there is no act of pursuit, then certainly one cannot kill the child, and whatever will be will be.

By the way, the decisors discuss what happens if both of them will die—if we leave him and don’t kill him, both will die. Is it then permitted to kill him? To me it seems obvious that yes, but among the decisors it is not at all simple. We’ll get to that question later too. It connects to the Jerusalem Talmud in Terumot and to other difficult issues. So why, if the fetus is not a pursuer, do we still kill it? Here it comes now.

Now this raises the question about the first law in the Mishnah. As long as it is a fetus whose head has not emerged, the Mishnah says yes, we kill it. Now if such a situation is not considered pursuit at all, okay, if such a situation is not considered pursuit at all, then why kill one in order to save the other? After all, one life is not set aside for another life. What follows—or at least what most of the medieval and later authorities understand—is that in the case of a fetus this is not considered killing, at least not fully, because the value of its life is not yet full value. So if we are talking about “who says your blood is redder,” which is a consideration between two life-values, then the whole problem of “passive omission is preferable,” right, is that I have no way to decide who is preferable. But with a fetus and a mother I do have a way to decide, because the fetus has less value. Just as if there were an animal versus a person, of course I’m allowed to kill the animal to save the person, even though ordinarily we don’t kill animals either. But the life-value of a person is not the same as the life-value of an animal. So since the principle is a principle of “passive omission is preferable,” and not a positive principle but a passive one, and that passivity exists when the two sides are equal—but if there is the life of a fetus on one side and the life of a full person on the other, then of course the life of the full person overrides the life of the fetus, and therefore we kill it. By what law? By the law of saving life. It is not considered murder to kill it. Something that is not murder is indeed overridden by the imperative of saving life.

You’re putting me into a puzzle already from before—forty days and all those things—where do you place them there? After all, after forty days it’s already called… Fine, so now one has to discuss exactly where on the scale. There definitely is a scale here with more than two levels. That’s exactly what I’m saying—fuzzy logic. So one has to understand that usually the decisors are not willing to accept such a consideration. Meaning, you can’t kill an old person to save a young person, even though the old person has a shorter life expectancy than the young person. We don’t make calculations of how much the life of one person is worth versus another person. Momentary life versus full life, sick versus healthy—not even dying, but sick—or perhaps even dying, but certainly sick versus healthy—we don’t make calculations like that. And a fetus is fuzzy logic on a different axis. It’s a half-qualitative life, not a half-quantitative life. Momentary life and an elderly person—that is half-quantitative life. He still has life completely—he is alive—but for less time, or with less quality of life, or something like that. But with a fetus it’s not fully alive. Meaning, it hasn’t yet fully moved from potential into actuality. It’s half-qualitative. Therefore it’s not considered fully life, just less of it quantitatively; rather, it’s considered not fully life. And therefore here the decisors say that killing the fetus to save the mother is indeed allowed.

So you’re not entering here into the scale of the portion of Pekudei, right? Into the scale of five shekels, three shekels, all those things. That’s monetary valuation. I don’t think it’s connected. It’s not some kind of value? Doesn’t seem to me.

In any case, Maimonides—of course this is the conclusion of the Gemara—therefore writes differently. Maimonides says this in the Laws of Murder and Preservation of Life, chapter 1, law 9: “This is a prohibition not to have pity on the life of the pursuer. Therefore the sages ruled that if a woman is having difficulty giving birth, it is permitted to cut up the fetus in her womb, whether with a drug or by hand, because it is like a pursuer after her to kill her. But once its head has emerged, one may not touch it, because one life is not set aside for another life, and this is the way of the world.”

So the second part is the conclusion of the Gemara: once its head has emerged, this is the way of the world and one does not kill it. But the first part says: we kill it because it is like a pursuer after her to kill her. So we kill it because there is a law of a pursuer. So everyone asks on Maimonides: if you really think this is a law of a pursuer, against the Gemara’s conclusion, then why, if its head has emerged, don’t we kill it? After all, a pursuer is killed even if he is a full person. And if it isn’t a pursuer, then why do you write regarding the fetus that we kill it because it is a pursuer?

It seems to me that what Maimonides means to say—and I mentioned this yesterday—is that in a number of places when Maimonides uses the comparative “like,” it isn’t identity; it’s resemblance. He says: “it is like a pursuer after her to kill her.” Maimonides does not mean that there is literally the law of a pursuer here. He means there is a law of “like a pursuer.” What does that mean? There is a situation here that resembles a pursuer, but it isn’t really a pursuer. Meaning, still on the scale of the minor—because we said that a minor who pursues is a situation of a pursuer. There is no guilt because he is a minor, but he created the situation. The claim is that the fetus too is on that same scale—perhaps less so, but on that same scale. Meaning, there is still some asymmetry between the mother and the fetus. The fetus that is there threatens the mother; the mother is not threatening the fetus by her presence. She is going to die because of him. Now true, this is even less than a minor taking a weapon or something like that, and still Maimonides says there is a hint of pursuit here. Meaning, there is some kind of half-pursuit situation here.

Why is that important? Because Maimonides assumes that apparently without this it would be forbidden to kill the fetus. Maimonides reads the Gemara differently. Maimonides claims that if there were no law of a pursuer here, then it would be impossible to kill even a fetus, despite the fact that its life-value is less. Without the law of a pursuer, it is forbidden to kill the fetus in order to save the mother. Why? As I said before, because if there is no law of a pursuer, then what is there? One life is not set aside for another life. Who says your blood is redder? Right? And we already said that in a consideration of that kind we do not calculate quality of life—momentary life versus full life, and all sorts of things like that. So Maimonides says: fine, even fetus-life versus a full person’s life—you cannot prefer one over the other. And therefore without some law of a pursuer, even a fetus cannot be killed. That is Maimonides’ claim.

But that value is not enough after it has put out its head. Exactly. You need both, Shmuel. Meaning, if it has already put out its head and its life-value is full value, then we do not kill it. Why? Because it is like a pursuer, not a pursuer. That is not a level of pursuit that justifies killing it. But it is still some level of pursuit, so if that combines with the consideration that there is not full life-value here, then I can justify it, because also the—also the full grounding factor is not here. They are not fully in the same state. Still, it is a pursuer, or like a pursuer.

And there are other places in Maimonides where this comparative language appears; everyone raises all sorts of difficulties on him—here too they do. They raise all sorts of difficulties and don’t notice that this is comparative language. It isn’t that he is a pursuer after his fellow to kill him; he is like a pursuer after his fellow to kill him. So what does this basically tell us? From Maimonides here we learn something very significant: basically, without there being a situation of pursuit—that is, if we are in a case of life versus life, where one life is not set aside for another—then we make no calculations whatsoever. Meaning, one may not kill one in order to save the other, no matter what the life-value of each one is. Even fetus versus person, certainly momentary life versus full life, sick versus healthy, old versus young—there is no calculation. The value of human life is infinite. So half of that is the same as that; it has no weight. You cannot set aside one life for another. Maimonides takes this to the extreme, fully. You cannot kill.

Meaning, if there is no law of a pursuer, or “like a pursuer,” or some asymmetry between the two people involved, then you cannot kill. But if there is an asymmetry—even if it is not the full asymmetry of the law of a pursuer, but a partial asymmetry—a minor is one partial asymmetry, a fetus is an even smaller partial asymmetry, but still, it creates the situation in some sense, or at least its existence creates the problem—then it can be killed if its life-value is lower. With lower value, you don’t need a full-fledged pursuit, at least not of a minor or even of an adult, in order to be able to kill someone who has full life-value. That is the picture according to Maimonides, and it greatly sharpens the distinction I made between these two principles: on the one hand, one life is not set aside for another, and on the other hand, the law of a pursuer. And in all the situations we’re talking about, almost always the dilemma is whether to classify it here or there. As you can see, all the discussions are simply this: if there is no law of a pursuer here, then immediately move over to “one life is not set aside for another”—it is forbidden to kill. If there is a law of a pursuer, then there is no “one life is not set aside for another”; you kill the pursuer to save the pursued. Meaning, the dilemma always boils down to the question of whether I am on this pole or that pole.

To sharpen this even more, I’ll conclude with an interesting Maimonides from another area. But what you’re saying now, a minute ago, is that these are not really poles, because you placed tick marks on the scale… No, the poles are in the normative sense. These are two principles located at two poles. Their applications form a continuum, and I’ll get into that continuum more. Right, because you’re saying a fetus is 0.5 pursuer. No, that’s why I say: but it’s not 0.5 “one life is not set aside for another.” Rather, there are two principles that are clear, and they are at the poles. There is the law of a pursuer on one side and the law of “one life is not set aside for another” on the other. Now within that comes the value of life, which is on a continuum, and the strength of the pursuit—the quality of the pursuit, let’s call it—which is also on some continuum, but in the end you still have to determine whether you are here or there. That is really the dilemma.

I’ll illustrate this through something that happens with property. Maimonides writes at the end of the Laws of Injury and Damage, literally one page earlier—then begins the Laws of Murder and Preservation of Life. This law is at the end of the Laws of Injury and Damage: “A ship that was about to break because of the weight of the cargo, and one of them arose and lightened its load and threw cargo into the sea, is exempt.” People are traveling on a ship and it is about to break because it has heavy cargo on it. Then all of us will drown and die there in the middle of the sea. And one of the passengers arises and lightens the load; he takes cargo, some of the cargo, and throws it into the sea so they won’t drown. He is exempt—exempt from paying the owner of the cargo, that is what it means. That’s not trivial. It’s not trivial? No, it’s trivial that he is allowed to do it. I’ll later bring sources suggesting maybe even that isn’t. But it is not trivial that he is exempt from paying. After all, the fact that you saved yourself is very nice, but why am I to blame? It’s my cargo. Pay me for what you threw out. I understand why you threw it out; I have no claim against you. But compensate me—why should I be left without the money? Why do you consider the damager to be the one who threw it, and not the one whose cargo it was? Let’s assume he doesn’t have any, for the sake of discussion. If he has, then all the more so.

So this takes us back to the “your luck caused it” issue we saw in torts. You are right that you threw it out; I have no claims against you. But pay me. My cargo saved you. So Maimonides says that the cargo is like a pursuer after them to kill them, and it was a great commandment that he threw it away and saved them. He says that this cargo has the law of a pursuer. The cargo is standing there, and it is pursuing us; it is about to drown us in the sea. So the pursuer may be killed; certainly if this pursuer is property… and therefore it may be destroyed, and therefore there is no need to pay.

So the Raavad asks him here on the spot from a Gemara: “There is here neither salt nor seasoning”—meaning, there is no law of a pursuer here at all, and this is not similar to the case of the wine in the chapter ‘one who steals,’ and in the case of one who threw cargo into the sea, even though he threw out one man’s cargo, they calculate against all of them according to their shares of the burden, as is stated in the baraita.” Certainly the payment has to be shared. The fact that you can throw it, throw it—but the payment has to be shared. And that is an explicit Gemara, what the Raavad says.

So what then? As they say here—the Kesef Mishneh, the Maggid Mishneh, and everyone else—Maimonides himself also brings that Gemara, only he brings it in the Laws of Theft and Lost Property, chapter 11. Then everyone asks: what is the difference between these two Maimonidean rulings? Now it’s a contradiction within Maimonides himself, not just a contradiction against the Gemara. Maimonides says that if you throw cargo into the sea, then you… Theft and Lost Property here? Here. Theft and Lost Property is here, good, you can see it. I don’t see it here now, but it appears in Maimonides’ Laws of Theft and Lost Property. It doesn’t matter right now. It appears there, and the question is: how does Maimonides reconcile himself?

So here Maimonides’ commentators say that the distinction is a simple one, and in truth the source is in two midrashim, both of which are also cited in Sefer Hasidim. Everyone asks about a contradiction in Sefer Hasidim too, and it’s the same issue. It all begins with Jonah—Jonah the prophet. They threw Jonah into the sea, okay? In order to save the ship, because they thought “for whose sake is this storm?” and they throw him into the sea. The question is whether they were right, whether such a thing may be done. Sefer Hasidim says: what are you talking about? We don’t cast lots over lives, okay? We don’t do such a thing. On the other hand, in Sefer Hasidim itself, in a different section, it says that one may do it. And if you look carefully, these are two midrashim from the sages, and both are sources for Sefer Hasidim, and there is a difference there. If you know the description of the story, it is described differently—and in Maimonides too the description is different, and he is careful about that.

There is one place where what happened—in the Maimonides we just read—was that the cargo itself, because of its weight, threatens to sink me. In that situation, if I threw out the cargo, I do not have to pay. But what happens if what is sinking me is the storm at sea? The cargo just doesn’t allow me to escape. The cargo isn’t sinking me; rather, the storm at sea will sink me, but the cargo doesn’t allow me to escape. In that case, Maimonides says, if I throw out the cargo, I do have to pay. To share the cost, that is. What’s the difference? And that’s how it is in the midrashim, and in Sefer Hasidim as well. The midrash there says that in Jonah’s case the story was that there was a storm at sea, and it threatened only that one ship, not the surrounding ships. Okay? Therefore it was actually permitted to throw Jonah into the sea, because there was some indication that there was a specific problem here. But in general, it really is forbidden.

What is the difference between the two cases? That is what Maimonides says, and therefore he explains: if the cargo is pursuing me, if it is what is about to drown me at sea, then it has the law of a pursuer. I can throw it away just as I can kill a pursuer, so of course I don’t need to pay you for it. You pursued me; your property pursued me, so I can throw it into the sea. But if the sea is pursuing me, and now in order to save myself I can shoot someone, or throw cargo into the sea in order to save myself—that is the law of saving oneself through another person’s property, through another person’s life. That is not the law of a pursuer. What is the difference between the law of a pursuer and the law of saving oneself through another person’s life? The law of saving oneself through another person’s life is when there is a third factor saying to me: kill so-and-so, and if not, I’ll kill you. So-and-so is not guilty; I’m not guilty; nobody here created the situation. Here one life is not set aside for another life. I’m forbidden to kill him, and I have to die. But if I myself am threatening so-and-so—sorry, if so-and-so himself is threatening me—then he created the situation; he isn’t a third factor. Then certainly I may kill him in order to save myself, right? If I have to kill him in order to save myself from some other threat, that is forbidden. But if I have to kill him because he is threatening me, then that is permitted as a matter of law. That is exactly the difference between “one life is not set aside for another” and the law of a pursuer.

And here with property it is the same thing. If the property itself is threatening to kill me, then it has the law of a pursuer—that is what Maimonides wrote in what I just read—so one may throw it into the sea, and there is no need to share the loss. But if the storm is pursuing me, and in order to save myself I need to throw out the property because it is getting in the way, my property didn’t do anything to you. You want to damage my property in order to save yourself? Pay. Why shouldn’t you pay? The property didn’t pursue you. The property is simply weighing you down. Maybe it makes rescue impossible, but what is drowning you is the storm. So here the law of saving oneself through another’s property already applies. Since here it is property and not life, of course you may do it; you just have to pay. With life, you may not do it at all. But I’m saying: its expression in property is exactly the same as in life. And that is precisely the solution to the contradiction in Maimonides. The question is whether you are on this side—saving yourself through another person’s property or life—or on this side, the law of a pursuer, whether property as pursuer or person as pursuer. And that is a paradigm for many situations we will have later.