Dilemmas Concerning Human Life – Lesson 3
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
- The value of life and saving life
- The prohibition of murder as a “result-based prohibition” and “be killed rather than transgress”
- Priorities in rescue and their limits
- The law of the pursuer and its explanations among the medieval authorities (Rishonim)
- A punitive dimension in the law of the pursuer and practical ramifications
- A pursuer who broke vessels and “he incurs the greater liability”
- A fetus endangering the mother, “Heaven is pursuing him,” and Maimonides’ “like a pursuer”
- Proportionality, conceptual framework, and targeted killings
- Maimonides on a storm at sea: a pursuer in the realm of property versus saving oneself with another’s property
- King David in Bava Kamma: may a person save himself with another person’s property?
- “Territorial limits”: property, dignity, and life as barriers to rescue calculations
- Bloodshed as the basis of the territorial principle, and the law of the pursuer as an exception
Summary
General Overview
The text presents the value of human life as a foundational value, not merely a means for fulfilling commandments, and from that derives both the severity of the prohibition of murder and the limits of the permission to harm another in order to save life. It distinguishes between the case of “be killed rather than transgress” with respect to murder, where one may not save oneself at the cost of another’s life because there is no way to prefer one person’s blood over another’s, and the law of the pursuer, where it is permitted and even obligatory to kill the pursuer in order to save the pursued, because the pursuer created the situation. The discussion then builds a more complex picture through the law of the fetus, Maimonides’ phrase “like a pursuer,” and disputes about saving oneself with another’s property, leading to a principled claim that in situations involving harm to an uninvolved party there is no place for calculations of “proportionality,” but rather a “territorial” limitation belonging to the owner of the life/property/dignity.
The value of life and saving life
The text states that life has value in itself and is not merely a tool for fulfilling commandments, even if fulfilling commandments is the way of life. It relies on the Talmud in Yoma that permits desecrating the Sabbath to save life, and concludes that the two reasons given there combine into a picture in which life has value in itself. It presents the discussions in medicine and security as similar in principle, because they are built on the same decision regarding the value of life and the implications of that decision.
The prohibition of murder as a “result-based prohibition” and “be killed rather than transgress”
The text argues that the prohibition of murder is not only a prohibition on an act, but a prohibition on the result of loss of life. Therefore indirect methods such as unusual performance or causation do not solve the dilemma when the issue is deciding between one life and another. It distinguishes between punishment questions in tractate Sanhedrin, where the form of the act affects whether one receives the death penalty or extralegal punishment, and rescue dilemmas, where the decision concerns outcomes of loss and the maximization of life. It states that with murder one must be killed rather than transgress even under threat, and emphasizes that no one suggests “getting around” this by means of forms of killing that would not incur execution by a religious court, because the core issue is the result and not the degree of severity of the act. It grounds this in: “What makes you think your blood is redder? Perhaps that man’s blood is redder,” and presents the prohibition on preferring one human life over another as an equality of value that cannot be measured.
Priorities in rescue and their limits
The text cites the Talmud in Horayot, which establishes rules of precedence in rescue and support, such as a priest taking precedence over an Israelite and a man over a woman, and explains that these laws are determined by the question of commandment-obligation. It states that all the distinctions in the Horayot passage do not apply in dilemmas involving taking life or deciding who will die, and that halakhic decisors wrote that they are irrelevant to that issue. It mentions cases during the Holocaust in which people wanted to save their rabbi or rebbe before others, and states that there is no halakhic basis for that with respect to preferring one life over another. It distinguishes between a rabbi being forbidden to prefer his own life over that of others and the possibility of an individual voluntarily giving up his own life so that another may live.
The law of the pursuer and its explanations among the medieval authorities (Rishonim)
The text presents the law of the pursuer as a commandment and obligation to kill the pursuer in order to save the pursued, and raises the difficulty this creates against the principle that one life is not set aside for another. It resolves this by a definitional distinction: in the case of a pursuer, the one who is harmed is the person who created the situation, and therefore “his blood is less red in this respect,” whereas in a case of a threat to kill a third party, the third party is an uninvolved external factor. It brings an explanation from Rashi according to which killing the pursuer also saves the pursuer from committing a transgression, so that when loss of life is equal, the decision tilts because of preventing the transgression. It adds an explanation of “natural justice,” according to which the pursuer cannot create the dilemma and then demand protection from the principle of “what makes you think” in order to block the rescue of the pursued.
A punitive dimension in the law of the pursuer and practical ramifications
The text argues that the law of the pursuer also has a punitive dimension, in the sense that we carry out what would have led to a death penalty after the act, in order to prevent two people from dying. It explains that the rescuer functions as a kind of agent of the religious court, even though he is not ordained and is not a court of twenty-three, and yet the court later checks that there really was a situation of pursuit, to prevent abuse. It notes that if it is possible to save the pursued by injuring one of the pursuer’s limbs, it is forbidden to kill the pursuer, and connects that to the fact that in such a case the pursuer also would not become liable for the death penalty. It discusses a minor who is a pursuer, and notes that there is a dispute among Amoraim, but that the halakhic ruling is that even a minor has the law of a pursuer. It concludes that the punitive dimension is not a condition for the law itself, even though it exists in the background.
A pursuer who broke vessels and “he incurs the greater liability”
The text cites the Talmud in Bava Kamma, and hints also to Sanhedrin, that a pursuer who broke vessels during the pursuit is exempt from payment because “he incurs the greater liability.” It raises a difficulty: the pursuer is not “liable with his life” as a punishment imposed by a religious court, but is killed in order to save the pursued. From this it learns that there is nevertheless a punitive component in the definition of the law of the pursuer. It suggests a practical ramification in the case of a minor pursuer who broke vessels: apparently there is no punitive dimension there, and therefore he would not be exempt under “he incurs the greater liability.” It connects this to the ruling brought in the Shulchan Arukh in the name of Hagahot Asheri, that a minor who caused damage may have to pay when he grows up.
A fetus endangering the mother, “Heaven is pursuing him,” and Maimonides’ “like a pursuer”
The text cites the Mishnah in Ohalot: a fetus that endangers its mother’s life is killed, but if its head has emerged, one may not touch it, because one life is not set aside for another. It brings the Talmud’s question in Sanhedrin as to why this is not the law of a pursuer, and the answer: “Heaven is pursuing him.” It emphasizes that the point is not intent or blame, but who created the situation. It raises a difficulty with Maimonides, who writes that the fetus is killed because it is “like a pursuer” trying to kill her, while the Talmud rejects applying the category of pursuer outright. It explains that, in his view, Maimonides adopts a sharp distinction according to which if there is no law of a pursuer, then no value-calculation should be made at all, even with respect to a fetus. He interprets “like a pursuer” as an intermediate case between pursuer and non-pursuer, where an additional consideration joins in—the fetus’s partial value of life—in order to permit killing before the head emerges, but once the head has emerged the situation returns to equality of lives and is therefore forbidden. He presents the picture as a “breaking of dichotomies” on two axes: on the axis of the halakhic definition of the situation, and on the axis of the value of life, which is not binary. He emphasizes that in extreme cases there is no room for calculations, but in intermediate cases more complex considerations are required.
Proportionality, conceptual framework, and targeted killings
The text expresses discomfort with public discussions that rely on the word “proportionality” without justification, especially in contexts such as targeted killings. It argues that a conceptual foundation is needed to define extreme situations and the law for each one, so that not everyone simply relies on their gut feeling. It acknowledges that the framework does not replace judgment, and that in intermediate cases, such as the law of the fetus according to the interpretation of Maimonides, there are still points at which there is no full justification beyond the combination of considerations within the framework.
Maimonides on a storm at sea: a pursuer in the realm of property versus saving oneself with another’s property
The text cites Maimonides and the Raavad regarding a storm at sea and throwing cargo overboard, and the Raavad’s difficulty from the Talmud that requires sharing the costs. It explains, in the name of the Kesef Mishneh and the Maggid Mishneh, that Maimonides distinguishes between a case where the cargo itself threatens to sink the ship, in which case it has the status of a pursuer and the person who throws it overboard is exempt from payment, and a case where the storm threatens the ship and throwing out the cargo merely helps save it, in which case there is no law of a pursuer and there is an obligation of sharing or compensation. It presents this as transferring the distinction between a pursuer and an uninvolved factor from the realm of life-and-death to the realm of property.
King David in Bava Kamma: may a person save himself with another person’s property?
The text cites Bava Kamma 60b about King David asking the Sanhedrin whether one may save oneself with another person’s property, in the context of burning a stack of grain for military purposes against the Philistines, and the answer: “You are king, and a king may breach a fence to make a path for himself.” It presents Rashi’s interpretation in its plain sense, according to which a person may not save himself with another person’s property, in contrast to Tosafot and most of the medieval authorities, who understand that the only question is whether he must pay. It explains that according to Tosafot it is permitted to damage property in order to save life, but there remains a question of compensation, and that the king has a special law of expropriating property. It cites Rashba, who explains that the permission stems from the fact that the owner of the property is obligated to save because of “do not stand idly by your neighbor’s blood,” and therefore taking the property is not theft. It objects that the obligation to save does not make another person’s property “mine,” and that the gap between Yoreh De’ah and Choshen Mishpat leaves Rashba’s claim difficult.
“Territorial limits”: property, dignity, and life as barriers to rescue calculations
The text suggests that Rashi is not turning theft into an offense of “be killed rather than transgress” because of its severity, but is instead stating another principle: that a person has no authority to make halakhic calculations about resources that are not his, even if the calculations are correct. It illustrates this through the example of taking a book while claiming, “In any case I’m violating a prohibition,” and argues that the flaw is not in the halakhic calculation but in invading another person’s domain. It compares this to the prohibition against attacking a person in order to take an organ from him to save a life, and presents this as “territorial limits,” where one does not solve the conflict by setting aside a prohibition because of saving life, but by an internal definition of who is authorized to decide. It cites Tosafot on “It is preferable for a person to throw himself into a fiery furnace rather than publicly shame his fellow,” and the interpretation of Binyan Tziyon by the author of Arukh LaNer, that the main point is not the severity of the prohibition of humiliation but the absence of authority to harm another person’s dignity in order to save oneself.
Bloodshed as the basis of the territorial principle, and the law of the pursuer as an exception
The text suggests that bloodshed is not merely one of the three cardinal sins, but a paradigm for the territorial principle, according to which a person has no right to harm another person’s values in order to save himself. It states that in a situation involving an uninvolved factor there is no room for any calculation—neither with respect to life, nor property, nor dignity—because the decision belongs to the owner of the territory itself, even if the Torah imposes on him an obligation to sacrifice. It sharpens the point by saying that it is permitted to violate values between man and God in order to save life because “the Holy One, blessed be He, waives His honor,” but harm in the sphere between one person and another cannot be decided by the rescuer at the expense of the other. It concludes that the main exception is the law of the pursuer, where the person being harmed is the one who created the situation, and therefore Jewish law imposes on others an obligation to stop him even at the cost of his life.
Full Transcript
[Speaker A] Okay,
[Rabbi Michael Abraham] So we’re basically in the middle of a topic, so I’ll have to ease us back into it a bit after the long break. The points really depend on one another. We started with human life, dilemmas involving saving life, medicine, security—we’ll see that the principles are similar. I began with the value of human life, with the relationship between the ability to fulfill commandments and the value of life. Is life just a means for fulfilling commandments, or is life a value in itself, and fulfilling commandments is the way to live, but not what gives life its value? We saw the Talmud in tractate Yoma that talks about the permission to desecrate the Sabbath to save life; there are two reasons there in the Talmud, and each seems to go in a different direction. I explained—we won’t get into the details—but I explained that it doesn’t really matter, because they combine; in the end it’s clear that life has value in itself. It’s not just a means for fulfilling commandments. From here, that basically means that if life is such a fundamental value, then the prohibition of murder is very understandable. I talked about the fact that the prohibition of murder—and this follows from what I said earlier—is not just a prohibition on an action, it’s a prohibition on a result. Meaning, the Torah forbids it not only because of the problem in the act of murder itself, but because of the result. A life is lost. And that has all kinds of implications for discussions of dilemmas. Sometimes I can kill with my left hand, in an unusual manner, indirectly, all kinds of things of that sort—but the result is of course the same. In the end, a person dies. And so if I focus on the result, all those distinctions may be irrelevant. Again, they are relevant in capital-law discussions in tractate Sanhedrin. Those distinctions matter regarding punishment of the murderer. Meaning, a murderer who did it in some indirect way, by the definitions the Talmud gives there, won’t be punished with the death penalty at least—maybe punished extralegally, but not with the death penalty. But in terms of the dilemma—what is preferable and what isn’t—the dilemma is not one of one transgression versus another, but one of results. The question is how I gain the maximum number of lives or lose the minimum number of lives, not how I avoid the maximum number of murder-transgressions. In that sense, murder prohibitions are a means toward preserving life. We’ll come back to that. So on the one hand there is the prohibition of murder. Not only is there a prohibition of murder, but even if someone threatens me—if they tell me, kill someone or we’ll kill you—I am forbidden to kill him, and I have to give up my life. With murder, the rule is “be killed rather than transgress.” That’s how severe the prohibition is. And again, I don’t know anyone on earth who says: fine, kill him by confinement, kill him in some indirect way, in some unusual way, and then it’s not really murder and you can save yourself. If the problem were just the severity of the transgression, that could be solved. The Talmud says if I bring the sun near the person, or put him where eventually the sun will come, or confine a person by water or fire, and things like that—there are all kinds of techniques to kill someone and not incur the death penalty for it. I don’t know anyone, at least, who imagines that if I’m threatened and told to kill someone in order to save myself, I should do it in some way that doesn’t count as the prohibition in its most severe form, and then there’s no problem and I can save myself without violating the prohibition of murder. So no. Clearly not. Why not? Because the calculation is not a calculation about murder-prohibitions; it’s a calculation about the result. Who in the end loses his life? And as the Talmud says: “What makes you think your blood is redder? Perhaps that man’s blood is redder.” The issue is: whose life has greater value? That’s the consideration. The consideration is not how to commit the minimal transgression. And once that’s the case, there is no way to decide that my life has greater value than someone else’s life. And therefore what? “Your life takes precedence”? “Your life takes precedence” does not apply in murder.
[Speaker A] No. But you still see it…
[Rabbi Michael Abraham] I didn’t say that all human beings are equal in terms of whom I need to care for. That’s a completely different statement. But here the point is that the value of life is not subject to distinction. Those are two completely different things. The Talmud in tractate Horayot brings all kinds of priority laws, even for rescue—for rescue from death, which already does touch on life-and-death law, there are laws of priority. A priest takes precedence over an Israelite, a man over a woman—don’t tell anyone. But the Talmud there explains, and later they also applied this to the laws of charity, whom one supports first—that all those priority laws apply there too, but that’s something entirely different. We’re not talking about taking life, about whose life is preferable to take. There, no distinctions are made. If I have a certain amount of money—where should I invest it? If I have the ability to save one person drowning in a river or two people, the question is which one to choose, or whom to support first—here Jewish law does have priority rules. And that is determined by the question of how many commandments a person is obligated in. And that too is the meaning of those priority laws there—and again, of course, that brings us back to the question whether commandments are what give life its value, or whether life has some independent value. In any case, in these contexts of life-and-death dilemmas, those distinctions don’t apply. Meaning, all the halakhic decisors wrote that all the distinctions in the Horayot passage do not apply to this issue. This came up a bit in connection with cases during the Holocaust, when certain communities wanted to save their rabbi or their rebbe or something like that instead of other people or before other people. From the standpoint of the law, there is no basis for that. Meaning, there is no difference—even though a Torah scholar may have contribution and all kinds of things like that—but from the legal standpoint there is no difference. Of course, in a situation where either I die or you die, and now I want to give up my life so that I’ll be the one who dies and not you—that’s a different discussion. It could be that a person is allowed—not obligated, but allowed—to make that kind of calculation: that I’m willing to give up my life so that I die and not my rebbe, or not the rabbi, or whatever. But it’s obvious that the rabbi is not allowed to kill me in order to save himself because my life is worth less. There is no such permission in Jewish law. So that’s one side of the coin: the prohibition of murder, the value of life, and the fact that I may not violate that even at the cost of my own life. The other side of the coin is the law of the pursuer. The law of the pursuer: when I see Reuven chasing Shimon in order to kill him, I am allowed—not only allowed, I am obligated—to kill Reuven in order to save Shimon. On the face of it, this contradicts the previous rule, because in this case, in order to save Shimon I kill Reuven. But who says that Shimon’s blood is redder than Reuven’s blood? Why am I allowed to kill Reuven in order to save Shimon? That seems to contradict the previous principle. So I said there is a difference. First of all, the difference between the two situations—the definitional difference between the two situations—and after that, explanations. The definitional difference between the two situations is the question of who created the situation. In the case of a pursuer, the one who created the situation is the pursuer. And since he created the situation, his blood is less red in this respect. Meaning: you created the situation, you should pay the price to solve the problem. In contrast, when someone threatens me so that I kill someone else, that other person is an outside third party. He has nothing to do with it. The one threatening me is one person, and he wants me to kill somebody else. What does that other person have to do with it? He has nothing to do with it, he’s not guilty, he didn’t create the situation—it’s a different factor, an external factor. And when the factor is external, then with murder the rule is “be killed rather than transgress.” I may not kill him under any circumstances, even if I die. In a case where the person I’m supposed to harm in order to save myself is the very one who created the situation, he is not an external factor—he himself created the equation—that is called the law of the pursuer. That is basically the definitional difference.
[Speaker C] We talked about the fact that it doesn’t matter whether the pursuer is guilty or—wait, I—
[Rabbi Michael Abraham] I’m getting to that in a second; I’m summarizing everything we discussed. So that’s the difference on the level of definition. Why, conceptually, is there a difference between these two situations? So here I said there are several explanations that appear among the medieval authorities (Rishonim). It may be that they even combine; I’m not sure it’s a dispute. But there are several explanations that come up among the medieval authorities. One explanation that comes up in Rashi—I brought it—is that I am actually saving the pursuer from a transgression. In the case of a pursuer, as opposed to the case of a third party where they tell me to kill someone in order to save myself—why should he pay with his life so that my life can be saved? But with the pursuer, if I kill him in order to save Shimon, why is it preferable to kill him? That was the question. Because when I kill him, he also gains from it—not only the pursued. What does he gain? He gains that the transgression is prevented. And since he gains from the prevention of the transgression, and we also save the life of the other person—and if I didn’t kill him, he would commit the transgression and the other life would be lost—then true, in either case one person dies, and in terms of the result of loss of life it’s the same thing, either this life is lost or that life is lost. But because the value of life is equal, the consideration of saving him from a transgression is what tips the scale.
[Speaker D] So that’s basically setting aside the murder itself of the pursuer—not murder, right, obviously—but it’s an assumption that also feeds into the result. It’s a bit strange, right? But obviously if—
[Rabbi Michael Abraham] If I do it because of the instructions of Jewish law, then it’s not murder. You’re right that it’s somewhat circular, but still, that assumption has an effect. Another explanation that came up in this context is basically just to restate the definitional difference: you created the situation—natural justice. You created the situation; it cannot be that you then use the halakhic principle that arose from the situation you created in order to protect yourself in everything you do. You want to murder, and then you ask Jewish law for protection so that nobody may kill you in order to save the pursued. Why? Because who says your blood is redder. You created that equation, that either your blood or his blood has to be chosen. Don’t create the equation, and we won’t enter the dilemma. You can’t drag me into the dilemma and then use that as a defense for yourself. But if that’s a halakhic norm—
[Speaker A] But what if it’s not a dilemma? Suppose A is chasing B. Right. Now put A inside A—kill him because he’s a pursuer. So you see?
[Rabbi Michael Abraham] A is the pursuer.
[Speaker A] Again. A is chasing B. Okay. So A has the law of a pursuer. Right. Now someone from outside threatens someone: kill him, the pursuer.
[Rabbi Michael Abraham] Right. What’s the problem? Of course that’s fine. Certainly. He can kill him even without being threatened.
[Speaker A] You can threaten me to kill the pursuer?
[Rabbi Michael Abraham] If the threatener were okay—what difference does it make? I’m allowed to kill the pursuer. I’m allowed to kill him even without anyone threatening me. There’s no such thing—you must kill the pursuer. And it’s not just a permission, it’s a commandment.
[Speaker A] Fine, never mind, but still—can they threaten me to kill him?
[Rabbi Michael Abraham] They can. What do you mean “can”? Are you asking whether the threatener gets called up to the Torah for Jonah? He won’t get called up for Jonah. But the question is whether I am allowed to kill. And the answer is yes, I’m allowed to kill. Not allowed—required to kill. The fact that they threaten me is not relevant; I have to kill him even without the threat. So if they threaten me, why should that change anything?
[Speaker A] Would he be exempt from lashes?
[Rabbi Michael Abraham] Yes, so there’s a discussion—
[Speaker A] among the later authorities—
[Rabbi Michael Abraham] in tractate Ketubot, both in Tosafot and afterward. What? I don’t think there’s much to discuss here. In any case, among the later authorities in tractate Ketubot, they discuss the question—because of the modest and immodest women there at the beginning of the tractate—what happens when I am threatened to do something that I would have done anyway? Am I considered coerced?
[Speaker D] You mean in the context of a transgression?
[Rabbi Michael Abraham] Say—separate from what I’m saying now, just as a side note to what you said—suppose I’m going to eat pork. Fine? I feel like eating pork. Now someone comes and puts a gun to my head and says: if you don’t eat pork, I’ll kill you. So I ate the pork. Now the question is whether I am liable for lashes.
[Speaker D] Surely not. Why? Because you lack intentional wickedness. And also with warning—
[Rabbi Michael Abraham] No, I would have done it anyway, I informed two witnesses, and I was—leave aside the technical problems. I would have eaten it anyway, I was going to do it anyway. Am I considered coerced or not considered coerced? It’s not a simple question; later authorities infer from the Talmud in various directions. Fine, that’s just a side remark.
[Speaker A] And the law of a healthy nazir… the equation that, say, was here this morning in the class. Right. Oedipus. The equation that, say, was here this morning in the class.
[Rabbi Michael Abraham] An oath doesn’t take effect; an oath cannot take effect on a commandment. You are already sworn from Mount Sinai. Not because of Oedipus.
[Speaker A] I’m saying, there’s no—
[Rabbi Michael Abraham] You are already sworn from Mount Sinai. An oath does not take effect upon an oath. So that’s the second explanation. A third explanation—and this one will be important for us later too; really all of them will be important later—is that the law of the pursuer contains a punitive dimension. Beyond the question of saving the pursued, there is a punitive dimension in the law of the pursuer. What is that punitive dimension? Suppose Reuven is chasing Shimon in order to kill him. If I don’t kill Reuven, he will continue and kill Shimon. Then we’ll bring him to court; he is liable to death as a murderer, so the court will kill him too. So in the end, both of them die.
[Speaker F] So they tell us: look, when you see a situation like that, don’t wait, don’t wait until he kills him and then the pursued—
[Rabbi Michael Abraham] dies, and then you take the pursuer too and he is executed by the court. Execute the pursuer now, before he kills. True, at this point he isn’t yet liable to death. But what if in the situation there aren’t two witnesses? He’s alone. Then the pursuer won’t be executed. Huh? Okay, so that would be a practical difference. Let’s say, for the sake of discussion, that there are two witnesses. It could be that this is a practical difference, that this reason maybe doesn’t apply there. Though even one who kills with one witness can be put into confinement, so he will die. Meaning, maybe it won’t be a formal court-imposed death sentence, but he will die.
[Speaker F] Or if he’s chasing him and they go into some room now and he won’t be able to see that he killed him, and there won’t even be one witness.
[Rabbi Michael Abraham] Right, possible. Although even circumstantial evidence can put someone into confinement.
[Speaker E] But for example you see that he may not kill him if he can save him by injuring one of his limbs.
[Rabbi Michael Abraham] Meaning it’s not a law of—no, that’s correct according to everyone. Because if you can save him by injuring one of his limbs, then he also would not become liable to death.
[Speaker D] You can save both their lives, so why kill him? Then he also wouldn’t become liable.
[Rabbi Michael Abraham] No, but I’m saying—I’m taking it one step further. You’re right. It’s like law and economics, when you understand economic considerations underlying normative decisions. But here I’m going one step further, because basically what they’re telling me is that I—the rescuer, let’s call it pursued, pursuer, and rescuer—I, the rescuer, am basically functioning here as a court. If I function as a court, then I am simply carrying out the death penalty that he now deserves. Who appointed me to be a court? Am I an ordained court of twenty-three? Right. But on the other hand, what can you do? Because of technical considerations—that I’m not ordained and not a court of twenty-three—should we let him kill the pursued and then take him to court and have the court kill him? There’s no logic in that. So they tell me: do it on the spot. Of course afterward they’ll discuss whether I did it lawfully or unlawfully. Just as people often protest investigations by the police internal affairs unit when someone is killed—there has to be an investigation as to whether it was done lawfully or unlawfully. There has to be. You can’t just let someone who killed go without an investigation. True, if afterward it turns out that he acted lawfully, then fine, he’ll be exempt. But there are no such claims that there should be no investigations. There’s no such thing as no investigation. A person—even in the case of a pursuer, by the way—if a rescuer killed the pursuer, then certainly he had to kill the pursuer, not merely was permitted to. And still, afterward the court will check whether that really was the situation. Otherwise everyone will kill someone and say: I saw him pursuing, so I killed him.
[Speaker D] The law makes him into an agent of the court.
[Rabbi Michael Abraham] Fine, but you have to make sure that he really was in that situation. Yes, obviously. No, I’m saying: he must kill—there’s no problem here, he was entirely in the right—but you need to verify that this really was the situation, otherwise everyone will exploit it and do whatever they want. So this basically means there is some punitive dimension in the law of the pursuer. Where is the practical implication? In all the examples brought earlier—for example, in a situation where somehow in the end he would not become liable to death, though it’s actually quite hard to arrive at such a situation where there would be no death liability in court.
[Speaker A] Is that the case of a fetus?
[Rabbi Michael Abraham] Right, exactly. But there are situations involving a minor, a fetus, people like that who don’t yet have criminal responsibility, and even if that minor is a pursuer and kills the pursued, he isn’t liable to death because he’s a minor, he’s still not liable to death. And then the punitive consideration doesn’t apply to him. And indeed we saw that in the Talmud there is a dispute about a minor pursuer, a dispute among Amoraim. Practically, we rule that even a minor has the law of a pursuer. Meaning that the law of the pursuer exists even where there is no punitive dimension. Or alternatively, the minor in principle is indeed liable to punishment, but he lacks understanding, he is under compulsion. And therefore we don’t actually kill him. But if I do it to save the life of the pursued, then yes, we carry out the punishment he deserves, even though as an ordinary murderer, no. Here you have to understand that if I formulate it this way, it’s no longer an economic consideration. Because economically, he won’t die in the end. So there is a difference between the economic consideration, as you called it, and the calculation I’m making here. In any case, at least practically, it’s a dispute among Amoraim, but practically we rule that you don’t need the punitive dimension in order for the law of the pursuer to apply. But you do need to understand: the punitive dimension exists. You don’t need it, because even without it there is the law of the pursuer—but the punitive dimension is there as well. Where is the implication? So I brought that Talmud passage in Bava Kamma—there’s one in Sanhedrin too—that a pursuer who broke vessels during his pursuit is exempt from paying for the vessels. Why? Because he is liable with his life, and “he incurs the greater liability.” One who incurs liability with his life does not have to pay. What does it mean, “liable with his life”? He isn’t liable with his life at all. He has to be killed in order to save the pursued, but that isn’t a death penalty that he formally deserves. “He incurs the greater liability” applies when there are two punishments, so we impose the more severe one and exempt him from the lesser. Rather, what do you see? You see that there really is a punitive dimension here. The practical implication would be: what happens with a pursuer who broke vessels—a minor pursuer who broke vessels. The punitive dimension isn’t present here, right? Here there are only the ordinary considerations.
[Speaker A] But a minor who broke vessels is exempt anyway.
[Rabbi Michael Abraham] Ah, wait. So at first glance, in the case of a minor who was a pursuer and broke vessels, there would not be the exemption of “he incurs the greater liability,” because the law of the pursuer here operates without the punitive dimension, only with the dimension of saving life. On the other hand, you’re rightly asking: but a minor in any case is not liable to pay. No—but there is a practical difference, because the Shulchan Arukh brings—it’s in Hagahot Asheri—the Shulchan Arukh brings the case of a minor who caused damage: when he grows up, he has to pay, apparently as an obligation in the eyes of Heaven. It’s not entirely clear there, but when he grows up he has to pay. And according to what I’m saying now, that makes sense: even when he was a pursuer and broke vessels, if he later grows up he has to pay, and he was not exempt during the pursuit under “he incurs the greater liability,” because the punitive dimension was absent. Okay, so that basically means that there is a punitive dimension in the background of the law of the pursuer—but. But you don’t need it in order to apply the law of the pursuer. Later on I’ll try to show that it nevertheless does play a role in this whole field of the pursuer, which is why I’m not bringing it up here for nothing. Now maybe one more point that we saw regarding a fetus. The Talmud in Sanhedrin, when it discusses a minor pursuer, brings the Mishnah in Ohalot: a fetus that endangers its mother’s life, we kill it. But if it has brought out its head, then you cannot touch it, because one life is not set aside for another. The Talmud asks there: but he is a pursuer, so why not kill him? And the Talmud answers: “Heaven is pursuing him.” “Heaven is pursuing him.” This is not the law of a pursuer. The Holy One, blessed be He, placed him in that situation—that’s how things turned out. This is not called a case of a pursuer; it’s a natural situation.
[Speaker D] You mean because he isn’t intentional? Huh? That he isn’t acting intentionally?
[Rabbi Michael Abraham] No, more than that, because a minor also is not intentional.
[Speaker D] He didn’t create the situation.
[Rabbi Michael Abraham] What does “intentional” mean? There’s no intentionality in a minor. His intention? A minor has no intention.
[Speaker D] His desire? There isn’t one, there isn’t—a minor doesn’t have that. And what you’re saying now has implications for an adult acting accidentally. What about an adult sitting on something that triggers a bomb?
[Rabbi Michael Abraham] No, that’s why I’m saying—it’s important to distinguish. When I talk about the fetus, I’m not talking about the fact that he lacks understanding. That’s not the point. The point is that he didn’t create the situation. If you created the situation, then even if you lack understanding, you are halakhically a pursuer, because even a minor pursuer or an insane pursuer is still a pursuer, because he created the situation, even though he has no blame. This is not a question of blame; it’s a completely different consideration. Here the claim is that in the classification we discussed between the law of the pursuer and saving oneself at another person’s expense, a fetus belongs to the second category, not the first. Understand? A minor pursuer belongs to the first category; he’s just not blameworthy.
[Speaker D] Exactly, he—
[Rabbi Michael Abraham] he created the situation. He has no understanding, but he created the situation. In the case of a fetus, it belongs to the second situation, not the first. It’s not a matter of lack of blame—that’s an important point. Now in Maimonides, when he brings this— we brought it last time—when Maimonides brings this law, he says that we kill the fetus because it is like a pursuer after her to kill her. So they ask on him there—Rabbi Chaim and the commentaries there ask him: but the Talmud said he is not a pursuer, because if he were a pursuer, then even if he had brought out his head we would kill him. A pursuer—even if he is a living human being whose head has already emerged, or just a person who is entirely outside, he doesn’t need to have brought out his head—if he is a pursuer, then we kill him. So decide: is such a case “Heaven is pursuing him,” or is it the law of a pursuer? If it is the law of a pursuer, then he should have been killed even after his head emerged. And if there is no law of a pursuer here, then apparently the fetus is not being killed under the law of a pursuer, but because the mother’s blood is redder than the fetus’s blood. Maybe the fetus is part of the mother?
[Speaker E] It’s not yet independent.
[Speaker D] So then you’re acting on the mother’s body as if you’re acting on the body—
[Rabbi Michael Abraham] Maimonides says: because it is like a pursuer after her to kill her.
[Speaker D] Maimonides says that explicitly. That’s the question on Maimonides.
[Rabbi Michael Abraham] I’m saying: were it not for Maimonides, I would have understood from the Talmud that there really is no law of a pursuer here. “Heaven is pursuing him”—this belongs to the case of saving oneself at another person’s expense. Meaning, the fetus is viewed as an independent factor, not as the factor that creates the situation. Again—not in the sense of blame, but in the question of who in fact created the situation. That’s what emerges from the Talmud. But once the fetus appears in the Talmud, we have to understand: then why do we kill the fetus? So we kill the fetus either because its blood is less red than the mother’s blood, because after all the whole reason we don’t kill one person to save another is because the value of the two lives is equal.
[Speaker A] And if it’s a fetus, then its life has less value. Unless you define a fetus differently. What do you mean? The Talmud says it isn’t alive. As long as it’s a fetus it isn’t alive; once it has brought out its head then it’s no longer… According to Maimonides maybe it isn’t defined as a fetus but as…
[Rabbi Michael Abraham] This is the Talmudic text, not Maimonides, I agree. That’s the distinction. Meaning, as long as it’s a fetus, then the value of its life is less than the mother’s, and therefore we kill it—not because of the law of a pursuer. There is no law of a pursuer here. That belongs to the third situation, or the second, where a person does not save himself at the cost of another person’s life. But why can’t a person save himself at the cost of another person’s life? Because you can’t measure the value of one life against another. But if it’s a fetus מול a full person, the mother, then yes, you can measure. The value of the mother’s life is greater than the life of the fetus. One second. What happens once it has brought out its head? Once it has brought out its head, then it too is a person and she is a person, so there’s no difference. Equality returns, and since this is not a case of a pursuer but a case of saving oneself at the cost of another’s life, the moment there’s equality you can’t kill. That’s the straightforward meaning of the Talmudic text. But Maimonides doesn’t go that way, because Maimonides explains it by saying: because it is like a pursuer after her to kill her. And if he bases it on the law of a pursuer, then the Talmud’s question comes back: then even if it has brought out its head, you should have to kill it. What’s the difference? In the law of a pursuer there’s no difference whether it’s a fetus or not a fetus. And it’s also not clear why Maimonides even needs this point, because you can kill the fetus even without it being a pursuer, since the value of its life… is lower. So I’ll answer the second question first. I already answered it; I’m just summarizing. In Maimonides it’s apparently clear—Maimonides apparently held—that if we’re dealing with a case where this is not pursuit, the second case, where a person does not save himself at the cost of another person’s life, then there is no possibility, even if there’s no equality between the values of the lives, you still can’t do it. Meaning, the claim is that even if the value of the fetus’s life is lower than the value of the mother’s life, you still cannot kill the fetus to save the mother if it is not a pursuer. In other words, Maimonides takes the distinction between a situation of a pursuer and a situation of saving oneself at the cost of another’s life in a very extreme way. And he claims that if you are not in a situation of a pursuer, you can’t touch a fly in order to save a person. There’s no such thing; you make no calculation at all. Everyone agrees—almost everyone, by the way—that among living people you certainly do not make such calculations. Meaning, the value of the life of an older person is not lower than that of a younger person, or a healthy person not higher than that of a sick person, or a short remaining life-span—various calculations of that sort. There are some who do want to argue such a thing; the Or HaChaim wants to argue that, but it’s very far-fetched. All the halakhic decisors reject it; we do not make those kinds of calculations. But regarding a fetus, the Talmudic text says yes—a fetus isn’t even a person at all; it’s half a person, I don’t know what to call it. So there, yes. Maimonides expands this even further. Maimonides says no—even with regard to a fetus, you do not make those kinds of calculations. You’re saying that according to Maimonides it comes out that life is a binary thing, either alive or not alive. Exactly. Or at least axiologically. Yes, I’m not willing to take account of the value of life in dilemmas of this sort. And that is a very important point. Meaning, Maimonides is saying a very forceful message here about the value of life. His claim is that everything having to do with life, whatever it is—a fetus, not a fetus, it changes nothing—if there is no law of a pursuer, kill it? No, you cannot kill it. So what then? So Maimonides says: that’s why you need the law of a pursuer. That is why Maimonides needs the law of a pursuer. Now the second question, or the first, if there is already a law of a pursuer here, then even when it has brought out its head, kill it too? So I said that Maimonides is careful in his wording, it seems to me, and writes: “behold, it is like a pursuer after her to kill her.” It is not a pursuer; it is like a pursuer. And that is what is written in the Talmudic text. The Talmudic text says, “From Heaven they are pursuing her.” What does the Talmudic text mean according to Maimonides? Maimonides does not say that what the Talmudic text means is that this is not a case of pursuit at all, but a case of a third party saving himself at the cost of another’s life, as people usually understand it. Maimonides says no: “From Heaven they are pursuing her” means this is pursuit, but not completely; it is like a pursuer.
[Speaker G] Maybe the beginning of the pursuit was—it could be that at the start of the pursuit it was a fetus. It’s a fetus the whole time. Yes, but once it brings out its head, it’s no longer a fetus. So I’m saying, since at the beginning it was as a fetus, it’s sort of a continuation, and therefore we relate to it as the beginning, and therefore it would be permitted to kill it?
[Rabbi Michael Abraham] No, once it has brought out its head it is forbidden to kill it.
[Speaker G] Maimonides says yes. No, it’s forbidden.
[Rabbi Michael Abraham] Once it has brought out its head it is forbidden—that is the law in the Talmudic text, and Maimonides brings it. The difference between Maimonides and the Talmudic text is in the reasoning. The reason why it is permitted to kill it before it has brought out its head is because it is like a pursuer. That’s it. Aside from that, the laws are like the Talmudic text. So the claim is that… but what is the difference between a fetus and after it has brought out its head, in a situation of pursuer or not pursuer? So I’m explaining. Basically what Maimonides wants to say is that there is an intermediate case here between pursuer and not pursuer. A case in between the two extreme situations I described. In such a case, says Maimonides, yes, you can make the calculation of the value of life. Meaning, there’s some kind of combination here between these two principles. If it’s a full-fledged case of a pursuer, then there’s no calculation of the value of life and nothing at all—you kill the pursuer. If it’s a case of not a pursuer but saving oneself at the cost of another’s life, there’s no calculation and nothing at all—you do not kill. No calculation, no anything. Maimonides says: but there are intermediate cases. There are cases where you are like a pursuer—“From Heaven they are pursuing her”; Heaven was involved in creating the state of pursuit, you didn’t do it yourself. In such a case, it is like a pursuer. What does this “like a pursuer” mean? I think I mentioned that there are other places where Maimonides adds this comparative “like,” and people challenge him over it, and I think he really means some sort of distant analogy and not full equivalence. So Maimonides says that in a case where there is a kind of pursuit, there you can combine the consideration of the difference in the value of life and say that since the fetus is like a pursuer, that alone would not suffice. Because if there is no law of a pursuer here, you cannot kill a person. A grown person—once it has brought out its head, you certainly do not kill in a case of “like a pursuer.” But still, there is some element of pursuit here; there is an asymmetry between the fetus and the mother also in the sense of who created the situation, or who is creating the situation. Who created the situation? The mother. But who is creating the situation right now? The fetus, with Heaven’s help. Yes. And since that is so, if the value of its life is lower, then nevertheless you can kill it even though it is only like a pursuer and not an actual pursuer. But if it is a full person… then a case of “like a pursuer” is not enough to justify killing him. So there is some combination here of two considerations.
[Speaker H] But who decides whether someone is a pursuer or not? Can any citizen decide? Yes. But maybe in my opinion he’s a pursuer, and in other people’s opinion he isn’t?
[Rabbi Michael Abraham] What are you suggesting—that there should be no law of a pursuer? Asking, what’s the alternative? Asking, what’s the alternative—that there should be no law of a pursuer? Asking. If there won’t be a law of a pursuer, then you get the other problematic side: maybe he really is a pursuer, and then the second person will die. There’s no—this is a game where you have to decide. Meaning, there is no privilege of not deciding. You can always make a mistake.
[Speaker D] So they’ll solve it by just looking the other way.
[Speaker I] No, that’s what happened, say, in the Azaria case, where the soldier decided that he was a pursuer or something like that.
[Rabbi Michael Abraham] Afterward you have to investigate and see whether the person acted properly or whether he just said it was a case of pursuit but really wanted to kill him, or made a mistake. After all, a police officer can also make mistakes, of course,
[Speaker F] here and there.
[Speaker A] But
[Rabbi Michael Abraham] we have no choice—we have to make a decision. So the decision that exacts the minimum price is the decision to apply the law of a pursuer. And yes, there can be mistakes.
[Speaker A] So that means I can decide that in this case there is a law of a pursuer here, and then with regard to myself I impose upon myself a commandment to kill him. You don’t impose it upon yourself; the Torah imposes it. You don’t decide; you diagnose. I diagnose. The question whether this is a case of pursuit or not—that’s objective.
[Rabbi Michael Abraham] The question whether you diagnosed correctly or not—that will be checked afterward in an investigation. You have to diagnose. It’s like pork: I have to decide that this is pork, and then I impose upon myself a prohibition against eating it. It doesn’t work that way. The Torah imposed a prohibition against eating pork; now I have to check whether this is pork or not. So of course every person has to decide whether the situation he is facing is the situation the Torah is talking about.
[Speaker A] He makes that diagnosis and brings himself under the law of a commandment.
[Rabbi Michael Abraham] But it’s the same with pork too: the moment I decide this is pork, I have brought myself under the prohibition against eating it. Obviously, you always have to diagnose what situation is before you. If that is the situation, then the law of the Torah applies here, saying it is forbidden to eat, one must kill. Yes.
[Speaker A] If a mother is on a path of mortal danger and the doctor tells her not to get pregnant and she gets pregnant, then the situation is like what you said—who created the situation. Yes, I don’t know what to say.
[Rabbi Michael Abraham] I don’t know what to say; that’s a good question.
[Speaker A] Maybe because she too is like a pursuer, because she paved the way,
[Rabbi Michael Abraham] yes, at least like a pursuer, and then her status would be equal to the fetus’s status—yes, that could be. In any case, the claim is—and here I want to summarize and start moving on—it’s important to me that you hold onto this picture, because what follows will be built on it. Basically, I distinguished between two situations, and in previous sessions I explained that this also resolves a contradiction in Maimonides. At the end of the laws of injury and damage versus the laws of robbery and lost property. In one place Maimonides writes—the Raavad objects to him—but Maimonides writes in one place that if a storm breaks out at sea and you are on a ship, and a storm breaks out at sea, you have to throw the ship’s cargo overboard in order to save yourselves. In such a case the cost is divided among the passengers. No, you can’t just take one passenger’s cargo and throw it into the sea. Somehow you have to share it out, compensate him, or throw some of yours and some of his. But if the weight of the cargo itself threatens to sink the ship, you can throw all the cargo into the sea and you are exempt from payment. I’m already bringing two different laws, one from the laws of robbery and lost property and one from the laws of injury and damage. And the Raavad challenges Maimonides: what do you mean? Because that cargo is like a pursuer after him to kill him. That is what is written in Maimonides at the end of the laws of injury and damage. So the Raavad says this contradicts the Talmudic text. The Talmudic text says they divide it according to the load, according to the cargo; they divide the costs. So the Kesef Mishneh there says: what do you want? Maimonides also brings that law, that they divide the costs, in the laws of robbery and lost property. So what is the difference between the two laws? Both the Kesef Mishneh and the Maggid Mishneh say: the difference is essentially the distinction we spoke about here. In a case where there is a storm at sea and you want to throw the cargo in order to save yourselves from the storm—say the ship will move faster, doesn’t matter—but it’s a situation where you need to throw the cargo into the sea in order to save yourselves, then the cargo is not pursuing you; it is not what is endangering you. You want to throw the cargo into the sea in order to save yourself; it is preventing your rescue. That is similar to a case where I need to kill someone in order to save myself—he is not threatening me, but if I kill him I will be saved. Same thing here: the cargo is not threatening to sink me; it’s a storm at sea. But if I throw the cargo, I can escape the storm. That is saving oneself by means of another person’s property. That is because there is no law of a pursuer here. But if the cargo itself threatens to sink the ship at sea, then the cargo is a pursuer. So if a person who threatens to kill me—it is permitted for me to harm him—then property that threatens to kill me, am I forbidden to throw it into the sea? Obviously it is permitted. Therefore this is exactly the distinction between the two situations I described earlier: a situation where the person whom I need to kill in order to save myself is the one threatening me, he is the one who created the situation—that is the law of a pursuer—versus the second situation where we are dealing with a third party or an uninvolved party, where I cannot kill him in order to save myself. And according to Maimonides, this also applies with regard to property. Meaning, if the property threatens me, then it has the law of a pursuer; if the property does not threaten me, then no, and that is the second situation. What I said is that the law of the fetus here erases the dichotomy on both planes. Up to now, in my theory, there was a sharp distinction between a state of pursuit and a state of saving oneself at the cost of another’s life: whether the victim is the one who created the situation or whether he is an uninvolved factor. But there is an intermediate stage. So I’m now summarizing the picture and saying like this: if I am at one of the two ends, there is a law of a pursuer—we kill the pursuer no matter who the pursuer and who the pursued are. We always kill the pursuer. Okay? If I am in the second situation, we kill no one under any circumstances. We make no calculations at all. Those are the two extremes, especially according to Maimonides, because according to Maimonides even with a fetus you do not kill it in such a case if there is no pursuit, if it is a case of an uninvolved factor. So in both extreme situations the picture is very black and white. But Maimonides says there is gray in the middle. The gray in the middle is on two different axes. It’s important to notice that. One axis is the question of how you define the situation. Are you under the law of a pursuer, or are you saving yourself at the cost of another’s life? There are cases in the middle—you are like a pursuer. It’s a kind of pursuit, half-pursuit. Not really. That is one mediation, or one breaking of one dichotomy. There is also a breaking of the dichotomy in the value of life. A fetus is basically half-life. What Maimonides says is not that there is a dichotomy between a person who has absolute life-value and a non-person whose life-value is zero. No. A fetus is half. What practical difference does that make? That if there is half-pursuit, but the half-pursuer is a fetus, which is half a person because it is half-life, then it is permitted to kill it. In other words, Maimonides is breaking both dichotomies here.
[Speaker D] He breaks both of them.
[Rabbi Michael Abraham] I’m saying, the point is this: if I am fully in a state of pursuer, there’s no need to break any dichotomy—we kill, full stop. If I’m not in a state of pursuer categorically, we kill no one, and it doesn’t matter who is involved. For the moment, at least according to Maimonides, not even a fetus. All right? If I’m in an intermediate case, then even a partial value of life can justify killing. That is, if it is half-pursuit, and that half-pursuer is half a person because he is half-life, then I can kill him. In other words, Maimonides has to break the dichotomous picture here on both axes: also on the axis of the practical definition—whether this is a situation of a pursuer or a situation of saving oneself at the cost of another’s life—and also on the axis of the value of life, which is no longer binary either, zero or one.
[Speaker A] Who says a partial sum equals one?
[Rabbi Michael Abraham] No, I’m not saying half—how do you know what the parts are?
[Speaker A] Exactly, so who says this is almost a fetus?
[Rabbi Michael Abraham] Who tells me that? Maimonides says it. Or the context. Maimonides says it—I call this half and that half just casually; call it a third and three-quarters, whatever…
[Speaker A] It doesn’t matter, but I’m saying the sum is one.
[Rabbi Michael Abraham] The Talmudic text, not Maimonides. The Talmudic text according to Maimonides’ interpretation. Fine. So the point is that this is very important, because in a large portion of the cases, when we are at the two extreme poles, no calculation at all needs to be made, and that simplifies the picture a lot. No calculation at all needs to be made. But it is not true that there is no room for calculations at all in dilemmas of life-saving. There are sometimes cases where we are in some sort of in-between state—life is usually more complicated than theory—and the situations are more complex, and that is where more complex considerations start coming in. I started this whole series by saying that what bothers me is that in discussions on these topics people keep talking about proportionality, proportionality, proportionality, and nobody explains anything.
[Speaker A] According to Maimonides, would a fetus after forty days and a fetus in the eighth month be the same?
[Rabbi Michael Abraham] Possibly. There is no other statement in Maimonides here.
[Speaker A] It’s monotonic, but not
[Rabbi Michael Abraham] an increase.
[Speaker G] It’s either a fetus or not a fetus?
[Rabbi Michael Abraham] Yes. The point is that in life, in the dilemmas we deal with, like yesterday—targeted killings—I brought various examples where my feeling in these discussions is very uncomfortable. Because everybody basically does what his gut tells him. One says it’s not proportional, the other says it is proportional. I don’t know—I haven’t heard reasons. It’s this word, “proportionality,” and I’m not dismissing it because it is important, but on the other hand you have to place it inside some other framework. Otherwise everybody just does whatever he wants and says this is proportional and that isn’t proportional, and that’s not an argument. It’s just words. In the end he’s saying: it doesn’t seem to me that it should be done, that’s all. Then say that. Don’t tell me proportional or not proportional. In other words, it gives the appearance of an argument. What I’m trying to build here is some sort of orderly infrastructure for dealing with these things. An orderly infrastructure for dealing with these things means defining the two extreme situations, defining what one does in each of the situations. But of course that does not mean that from now on a computer could give an answer for every real-life situation. Obviously there is room for considerations of proportionality. And this is a good example of that—the fetus. In a place where I say this is half-pursuit and also half-value of life, here I don’t know how to argue any more than to say: this is proportional or this is not proportional. Half plus half equals one, maybe you think. Fine, I don’t know. The combination of these things seems to me to justify it. Understood? Meaning, I can’t completely bypass this unclarified exercise of judgment. But I can place it within some conceptual framework inside which a discussion can be conducted. And that is really my goal. Now I’ll maybe bring an example—and one example of an implication—and then I’ll start dealing with various intermediate cases and implications of the picture I’ve described up to now, and you’ll see how things are not simple. Meaning, you can see how this picture can actually be tuned to every kind of situation. I’ll bring דווקא an example that at first glance seems outrageous, but when I thought about it, I thought it wasn’t so far-fetched. Maybe I’ll preface the example with something. I’ll add one more point. There is—I think I already mentioned this, maybe not in this series, but I think I mentioned it, and I wanted to mention it. The Talmudic text in Bava Kamma 60b discusses whether a person may save himself by means of another person’s property. Yes, about King David, who fought the Philistines there, and he sent the mighty men to bring him water from the well of Bethlehem. So the Talmudic text interprets those verses as though he actually sent them to ask a Jewish law question in the Sanhedrin. “Water” means nothing other than Torah, “from the well of Bethlehem” means the Sanhedrin who sat there, like those elders who sat in the gate. And he asked them: what is the law about saving oneself by means of another person’s property? Why? Because the Philistines were hiding behind some stack of grain and he had to burn the stack of grain as part of the war against them in order to win, in order to fight them. Wait a second, wait a second. So when he burns the stack of grain, he is harming property in order to save his life. So he asks whether a person may save himself by means of another person’s property. And plainly the meaning is that this is the property of uninvolved people. Because if the property itself threatens him, that is simply the law of a pursuer, as we saw before. It is apparently the property of a third party. If the third party is a human life, then clearly I am forbidden to harm him in order to save myself. That’s not the question. But if the third party is property, then seemingly that’s not even a question—the opposite. Then obviously yes. What, I’m supposed not to damage property and instead give up my life for it? What was the question at all?
[Speaker D] The question is whether you’re allowed to damage it or whether you then have to pay the money back.
[Rabbi Michael Abraham] Wait, wait a second—I’ll get to that in a moment. So that’s what King David asked, and the Sanhedrin answered him: “You are a king, and a king may breach a fence to make a path for himself.” But from this it is clear that an ordinary person may not save himself by means of another person’s property if he is not a king. A king is allowed, but an ordinary person is not. Now here that strengthens the question even more. At first I wondered what the question even was. If it’s property versus life, then this doesn’t even enter all the previous categories. Right? If it’s property versus life, then seemingly it’s obvious that one may harm property in order to save life. What’s the question? Now when the answer comes, it turns out not only that the question was in place, but the answer is that it is forbidden. I asked what the initial assumption could have been that it was forbidden, when it seemed obvious to me that the answer would be that it is permitted. But no—it’s not just the initial assumption; the answer is that it is forbidden.
[Speaker E] Maybe the answer they gave him, that King David can breach a fence, is connected to what he said—whether he has to compensate the person afterward?
[Rabbi Michael Abraham] Wait, wait, one second—I’m getting to that, I said. So the medieval authorities, most of them, understand that—let’s put it this way—Rashi implies there, and it is almost explicit, that it means exactly what it says. That is, a person is forbidden to save himself by means of another person’s property. Even if your life is in danger, if in order to save yourself you have to damage someone else’s property, it is forbidden. Be killed rather than transgress robbery, in other words. Be killed rather than transgress robbery—that’s what Rashi says. One second. So Tosafot asks against him, and the later and earlier authorities disagree with him, and they argue no. The whole discussion in the Talmudic text—what David asked and what the Sanhedrin answered—was only about the question whether one must pay the owner of the property. But surely it is permitted to damage the property. The question is whether one has to pay, as we saw in Maimonides concerning one who throws the ship’s cargo into the sea. There is no question that you are allowed to throw it, whether the cargo is a pursuer or not a pursuer. The difference between a pursuer and not a pursuer is only in the question whether you have to pay, because you are not required to die for property.
[Speaker D] The king doesn’t have to pay? The king doesn’t have to pay. That also makes sense.
[Rabbi Michael Abraham] That’s what they answered him.
[Speaker D] Fine, but it doesn’t make sense. What doesn’t make sense? Tosafot doesn’t make sense. What, the king? Fine, he can do it, but who says the king still doesn’t have to pay?
[Rabbi Michael Abraham] Because the king does whatever he wants, that’s it—a king breaches
[Speaker D] a fence and no one can protest him. Why? Why do they reach such a conclusion?
[Rabbi Michael Abraham] A king can expropriate property for public needs. Someone said to him: then let him pay.
[Speaker D] No, what, let him pay?
[Rabbi Michael Abraham] No, he can expropriate property without paying. That’s his prerogative; he is allowed. If he wants to behave properly he should pay, but it is his right; he is allowed. They gave him that power. The point is that this is what I’m saying—that’s how the medieval authorities explain it there, but in Rashi it is written that it means exactly what it says. In Rashi it is written that it means exactly what it says.
[Speaker G] Money, property versus human life—is that what Rashi says?
[Rabbi Michael Abraham] Yes. So they ask against him, and Tosafot asks against him: we never heard anywhere that there are four severe transgressions—idolatry, forbidden sexual relations, bloodshed, and robbery—such that in all of them one must be killed rather than transgress. According to Rashi there should have been four, not three transgressions, because he also says with respect to robbery that one must be killed rather than transgress. Damage—it doesn’t matter—but even on that there is “be killed rather than transgress.” Therefore the other medieval authorities reject Rashi’s words. I’ll say parenthetically: in a responsum of the Rashba, the Rashba also joins the other medieval authorities and explains that this is only about the obligation of payment, but he explains there why indeed it is permitted for you to damage property in order to save your life. Because this is not robbery. Why? Because the owner of the property himself would have been required to sacrifice his property in order to save your life—there is “do not stand idly by your neighbor’s blood.” And since that is so, even if you take his property for this purpose, you are not a robber.
[Speaker D] With his consent?
[Rabbi Michael Abraham] That’s what the Rashba claims. No, again: if it is with his consent, then there’s no question; even Rashi would say that, everyone would certainly agree. The point is that he says: I don’t agree, I don’t want to give it to you.
[Speaker D] But he is obligated.
[Rabbi Michael Abraham] So I’m saying, the Rashba says that since he is obligated, I can take it and this is not robbery. Therefore it is permitted for me to take the property. But notice the subtext in the Rashba.
[Speaker D] The moment it’s not robbery, then
[Speaker G] then he doesn’t have to pay him? What? So then he doesn’t have to pay?
[Rabbi Michael Abraham] No, that’s
[Speaker G] not robbery if he pays.
[Rabbi Michael Abraham] if he pays. You, as the owner of the property, cannot object, but why should you have to bear the cost in order to save me? So let me pay for it. I’m saying, you have to notice the subtext in the Rashba. The subtext in the Rashba is that if this were robbery, then he would have joined Rashi.
[Speaker D] So that goes back to the question of why this is not…
[Rabbi Michael Abraham] Right. The Rashba indeed goes with the other medieval authorities, with Tosafot, but he explains it by saying that when you take the property, this is not robbery. Which implies that if the Rashba had thought there was robbery here, then he too would not have agreed that you may do it. And again the question returns: why not? What, is robbery a case of “be killed rather than transgress”?
[Speaker E] In what situation is there robbery such that it is “be killed rather than transgress”? A case like this?
[Rabbi Michael Abraham] Like this example. What do you mean?
[Speaker E] But there is no robbery here.
[Rabbi Michael Abraham] That’s what the Rashba says, but if in such a situation there had been
[Speaker E] robbery,
[Rabbi Michael Abraham] would it have been forbidden to do it? He says: it is permitted to do it because the Torah said “do not stand idly by your neighbor’s blood.” If the Torah had not said “do not stand idly by your neighbor’s blood” and there had been robbery here, then it would be forbidden for you to do it?
[Speaker D] But there are… right.
[Rabbi Michael Abraham] There are practical situations there too that…
[Speaker D] “Be killed rather than transgress” is when someone imposes this dilemma on me; it’s not that I myself am sinning. When you say “be killed rather than transgress” and I…
[Rabbi Michael Abraham] It can also be a natural threat. What do you mean? If there is a natural threat to me, not by another person. Cases of illness—we’ll talk about that more. Maimonides really does make some distinction between illness, a natural threat, and an unnatural threat. And everyone is astonished there—the Tashbetz and the Or Sameach and everybody—what are we supposed to do with that? But we’ll get to that later on. So in the Rashba too you can see that if… if there had been robbery here, then it would not have been permitted to do this. Now maybe one more comment. The Rashba’s reasoning itself is problematic. Because when the Torah says “do not stand idly by your neighbor’s blood,” that does not turn this into non-robbery. The fact that he has an obligation to invest his property in order to save me does not mean that I am permitted to take his property, that his property is mine. There is a difference between ritual law and civil law. From the standpoint of ritual law, he is obligated to spend his money in order to save me, but that does not mean the money is mine from the standpoint of civil law. If a poor person asks for charity, I have to give him charity. Is he allowed to take my money? No. Why not? Because my obligation to give him charity is an obligation of ritual law, not because the money is his. So the fact that I have an obligation to give you money does not mean that the money is yours and that you are allowed to take it. And if someone refuses to save me, to spend his property in order to save me, then he violates “do not stand idly by your neighbor’s blood,” and the Holy One, blessed be He, will settle accounts with him. Does that mean I am permitted to take it? That it is not robbery if I take it? Why? Where is that written? So this argument of the Rashba is a very difficult argument. His claim is that “do not stand idly by your neighbor’s blood” is some kind of expropriation of the property. It is not just that the owner has an obligation to spend it in order to save me, but that there is some kind of expropriation of the property for the sake of rescue. But he has to pay afterward, after all. No, but expropriation in the sense that I can decide what to do with it and then pay afterward. So the claim is that… what I want to say is that according to Rashi, Rashi probably learns like the Rashba, but he does not in fact accept this idea that “do not stand idly by your neighbor’s blood” renders the property ownerless. So we are back in a situation where taking the property is robbery. And if it is robbery, then even the Rashba agrees that I am forbidden to rob in order to save myself. What is the idea behind this? I want to—this will simply complete the picture I have described up to now. I think Tosafot’s question against Rashi—why robbery does not enter the list of severe transgressions in tractate Sanhedrin—is not what Rashi means. Rashi is not saying that robbery is a transgression about which one must be killed rather than transgress. The reason I am forbidden to take the property is not because of the prohibition of robbery. The prohibition of robbery is overridden by life-saving. The reason I am forbidden to take the property is because that property is not mine. That does not belong to the prohibition of robbery. What do I mean? Let me give an example. Suppose that… I once mentioned this. I once had a friend in Bnei Brak; we were sitting there in yeshiva around the table, and there was someone there reading a book, an interesting book. So my friend says to him: I’ve been looking for that book for a long time. He says to him, look, I have two options: either take the book from you and violate “do not steal,” or leave the book with you and violate “do not covet.” So since in any case I’m violating a prohibition, I may as well take the book, and instead of the book being with you, the book will be with me. Either way I’m violating a prohibition, yes? So fine, that reasoning is of course wrong, because you violate “do not covet” either way. And you also did.
[Speaker E] And he also
[Rabbi Michael Abraham] knew that; it doesn’t matter. But I’m saying, what is wrong with it? Suppose that reasoning really had been halakhically correct—what is defective about it? What is defective is: don’t make correct calculations about my property. Even if the calculation is correct—not because it’s incorrect. You are making correct calculations, excellent, wonderful—about your own money, not about mine. About my money, I make the calculations. Even if the calculations are wrong, then the Holy One, blessed be He, will settle accounts with me. But you are not a party to the matter; it is my money. You cannot take my property even if your halakhic calculation was justified. Meaning, the point of what I was saying to him was not that he was halakhically mistaken—and true, and he knew that too, as I said—but that’s not the point. The point is that even if he had not been halakhically mistaken, it would not help at all. If I am ill and I need an organ, am I allowed to attack someone, remove his kidney, and transplant it into myself? It’s life-saving. He will remain alive even without the kidney. That is injuring. Is injuring one of the “be killed rather than transgress” prohibitions? No. Only murder is “be killed rather than transgress.” So maybe I can take his kidney? I need that kidney. Am I allowed? No, I’m not allowed. Why am I not allowed? Even though it could be that maybe he should perhaps do it—assuming, let’s say, he is the only possible donor, there may be room to discuss it. But that certainly does not mean that it is yours. You cannot make the decisions about that kidney. And this is not even a halakhic question of whether life-saving overrides or does not override. On the contrary. This is what I once called territorial limits. In that context I spoke about it. There are territorial limits—what I said is that sometimes there are situations where I prohibit something to someone or resolve a halakhic conflict not by saying principle A overrides principle B because it is stronger, but by means of an internal limit, not an external one. Not something outside that limits the principle, but something from within. You simply cannot make halakhic calculations about someone else’s property even if the calculations are justified. And again—not because the calculations are not justified. The calculations… are justified. The Holy One, blessed be He, will not come to you with complaints about justified calculations. He will come to you with complaints about invading a domain that is not yours, because you made calculations—even justified ones—about someone else’s money. You cannot do that. About my own money, only I make the calculation, nobody else.
[Speaker D] But this happens every day and it’s legitimate. A rescuer breaks something in order to save a person, and the door does not belong to the rescued person. People do this and it’s permitted.
[Rabbi Michael Abraham] First, according to Rashi, who said it’s permitted?
[Speaker D] I’m asking you.
[Rabbi Michael Abraham] And second, if there is a strong presumption that the person agrees, or if the state has established it—after all, a king can render property ownerless—then it can also be done. But yes, according to Rashi, were it not for those two considerations, it would be forbidden.
[Speaker C] And the Rashba goes further, saying that we really do render it ownerless.
[Rabbi Michael Abraham] Yes, yes, so then all the more so. Therefore I say: were it not for those considerations, it really would be forbidden. But if the government expropriates it, it can—there is authority for the king to render property ownerless.
[Speaker C] And the Rashba says that Jewish law says that…
[Rabbi Michael Abraham] Ah, but Rashi probably does not accept that. So the point is that the prohibition of robbery is not overridden because of life-saving. It is not one of the three severe transgressions. The reason I am forbidden to rob, to take property in order to save myself, is not because of the prohibition of robbery. It does not belong to the prohibition of robbery at all. It is because the property is yours. About your property I cannot make halakhic calculations. Not because they are incorrect—they are correct. But they are outside the sphere entrusted to my accounting. The calculations I am supposed to make are about my own property, not about yours. And therefore there is no point in talking about “do not steal” as one of the severe transgressions. That has nothing to do with Rashi. It is a completely different principle. It is a principle that says: your correct calculations, and all the rules of overriding and everything, when you stand before the Holy One, blessed be He, you can speak with Him in terms of: wait, You forbade this to me, but You obligated me in that. So you have a negotiation with the Holy One, blessed be He. But with your fellow person you do not negotiate by way of the Torah; you negotiate with his interests. And if he decides with regard to his property not to give it to you, then he has not given it to you. And you can complain to him and be angry with him; everything will be fine.
[Speaker D] But that’s a very puzzling argument. You used the kidney—that’s very nice—but a kidney isn’t like property. There is no way to compensate you afterward for the fact that I took your kidney. But property that I took from you—I’m obligated to return it to you.
[Rabbi Michael Abraham] You are assuming that taking property with the intention to compensate is not robbery.
[Speaker D] I didn’t say it wasn’t robbery; I said that the territorial consideration might be secondary to saving life, because I have a way to compensate.
[Rabbi Michael Abraham] Could be. And Rashi says no.
[Speaker D] It’s very temporary compared with the kidney.
[Rabbi Michael Abraham] And Rashi says no. You are presenting the view of the other medieval authorities, perhaps—that’s fine—and Rashi says no. And the question is why this is not one of the three severe transgressions. My answer is: because it is not the severity of the transgression that does it. Why am I bringing this? In the responsa Binyan Tzion by the author of Arukh LaNer, he devotes several sections to this matter; he expands on it a lot. There is a Tosafot in Sotah, I think. It says there that it is preferable for a person to throw himself into a fiery furnace rather than publicly embarrass his fellow. That is what is written in the Talmudic text. So Tosafot says that with respect to humiliation there is “be killed rather than transgress.” You must throw yourself into a furnace and die so as not to publicly embarrass your fellow. Where did we ever hear such a thing? There are all kinds of strange explanations in the Talmudic text later on, that because the blood drains from his face when he is embarrassed, it is therefore like murder. Come on, really—that is completely far-fetched, nonsense. What is this, it became murder because of a nice homily? People say nice homilies and by that they permit the prohibition of murder? So Arukh LaNer explains that this is an extension of the principle we saw here. The point is not the prohibition of humiliation. Rather, a person’s honor is like his property. You cannot make decisions, even justified ones, about another person’s honor. Another person has the right to decide whether he is willing to sacrifice his honor in order to save you or not. You cannot violate his honor, take his honor, humiliate him in order to save yourself. Why? Not because the prohibition of humiliation is severe—it is not like idolatry, forbidden sexual relations, and bloodshed. There, it is because of the severity of the prohibition. Here, it is because this is the other person’s mandate; it belongs to the other person’s territory. You cannot make decisions about the other person’s territory. And what I want to say—and with this I’ll finish—is that this sheds a much sharper light on the other side of the equation.
[Speaker F] But then why bloodshed? If it’s one of the three severe transgressions, even if otherwise it would have been three
[Rabbi Michael Abraham] severe ones, after all it
[Speaker F] would have been forbidden because it’s his?
[Rabbi Michael Abraham] Exactly. Right, right. And in my view, that’s the source for everything. Bloodshed too is not really one of the three cardinal sins in itself; rather, it’s the paradigm case for this kind of territorial consideration. And all of them enter the list under bloodshed. That’s exactly where they learned it from. And the point is really—what I want to say is this: earlier I made a distinction between the law of a pursuer and saving oneself at the cost of another person’s life. Now I want to claim that according to Rashi, it goes even further: even saving yourself at the cost of another person’s property—you can’t do that. Not only not at the cost of his life, which is half a person, not only… no—even at the cost of another person’s property you can’t do it. Of course, that’s an extreme approach; I’m saying most of the medieval authorities (Rishonim) do not agree with it. But what this basically means is that when we are in a situation where we need to harm an uninvolved party in order to save ourselves, there is no room for any calculation at all—it is simply forbidden to do it. Nothing at all: not to humiliate him, not—according to the Rosh, I’m saying—not to damage his property, and according to all the other medieval authorities (Rishonim), of course, also not to harm his life. But that’s not because of the severity of the prohibition, nor because of anything else. It’s because I’m entering a territory where the decision is not one I am supposed to make, but rather the owner of that territory, or the other person, is the one who should make it. And that is really the meaning of: a person may not save himself at the cost of another person’s life, or another person’s property. The difference between that and the law of a pursuer is not because of the severity of the prohibition and not because of anything else, but because there are situations in which I am forbidden to make decisions about someone else, even if they are justified. It makes no difference. Decisions about your life, your property, your dignity—only you can make them. And the Torah sometimes really does impose on you the obligation to sacrifice those things, but even if the Torah imposes that on you, that still does not mean that I can take them from you. You have to decide whether you do it or do not do it; that’s your calculation. And that is really the meaning. That’s why we don’t make calculations here. Because notice what this really means: that no value may be harmed in order to save my life—not just no life, no value at all, nothing. You may not harm it in order to save my life if it is a value that belongs to someone else. I am allowed to save my life at the cost of halakhic / of Jewish law values—the Holy One, blessed be He, waives His honor so that I can save my life. I can eat pork, I can desecrate the Sabbath, I can do anything. But commandments between one person and another, harming another person, another person’s property, another person’s life, another person’s body, injuring another person, another person’s dignity—all these things cannot be done even at the cost of life. That is the meaning of this. It is much more than just harming someone else’s life in order to save myself; I am forbidden to step outside my own territory in order to save myself. That is really the point.