Dilemmas Concerning Human Life – Lesson 11
This transcription was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
🔗 Link to the original lecture
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Table of Contents
- Moving from private dilemmas to public dilemmas in life-saving situations
- Defensive Shield, Jenin, and the absence of an orderly halakhic position
- Issue 13 of “Tzohar” as a model for the tension between individual and public
- A religious court as a corporation, majority, and nullification by majority
- Olive harvesting, non-Jewish ownership, and the distinction between sovereignty and ownership
- Education in hesder yeshivot, majority versus public, and a Zionist repentance movement
- Women, “the needs of the collective,” and subordinating the private to the public
- The missing claim in “Tzohar”: two valid sides and the balance between them
- Rabbi Israeli, Qibya, and the prohibition against harming innocents
- “Territorial considerations,” Rashi, Arukh LaNer, Rabbi Shimon Shkop, and duties and rights
- War as a departure from private Jewish law and a turn to extra-halakhic rules
- A counterclaim: apply individual law to collectives and don’t run to “the laws of war”
Summary
General overview
The text opens the final part of a series on life-saving dilemmas, moving from the private plane to the public one, by setting two principles against each other: the law of the pursuer versus the rule that a person may not save himself at the cost of another’s life. The author describes how medical and security dilemmas can be mapped onto the question whether the harm is required against the threatening party himself or against a third party, and argues that on the public plane a “twist” appears in which the identification of the threatening party changes. He presents a personal and intellectual background to the discussion through Operation Defensive Shield, a halakhic silence that struck him as severe, and a critical reading of issue 13 of the journal “Tzohar,” in which the tension between individual and public kept recurring. He then critiques Rabbi Israeli’s solution, which redirects the laws of war to extra-halakhic rules, and instead proposes applying the laws governing individuals themselves when the actors are collectives, so that the threatening collective can be considered a “pursuer” even when uninvolved people are within it.
Moving from private dilemmas to public dilemmas in life-saving situations
The author sets out two basic principles: the law of the pursuer versus the rule that a person may not save himself at the cost of another’s life, “one must be killed rather than transgress” with respect to murder. He translates the distinction into a concrete question: is the party whom one must harm in order to save oneself the threatening party himself, or a third party who is not the threat? He explains that in the extreme cases one principle decides even if the other principle appears at some “level,” whereas in intermediate cases a balance can emerge between the two sides of the equation. He argues that this model explains almost all the dilemmas discussed so far, and he wants to show that it will also apply on the public plane, but with a certain twist.
Defensive Shield, Jenin, and the absence of an orderly halakhic position
The author describes the dilemma in Jenin: to bomb from above and also hit children and uninvolved civilians, or to go in and risk the soldiers’ lives in house-to-house fighting. He says that in practice they decided on entering, and many soldiers were killed there, and he adds his view that surrounding the area from four directions, with no “way out,” was a mistake. He explains that the question especially preoccupied him because no halakhic positions were heard on the matter, and to him this felt like a “deafening silence,” whose source was unclear—whether it was avoidance of complication, or an assumption that the Jewish law is simple but would not be followed. He sharply criticizes a lecture by the head of the Jewish law branch in the military rabbinate, who presented “lessons” from Operation Defensive Shield through questions like packing soap on the Sabbath, and calls that a “scandal” and a failure to address the main issue.
Issue 13 of “Tzohar” as a model for the tension between individual and public
The author says he read issue 13 of the journal “Tzohar,” and saw in it a cluster of different topics that all revolved around a dilemma between private individuals and the public or a collective. He explains that the dilemmas were presented, in his view, as a choice between two competing lenses, whereas he thinks both sides are correct and require a delicate balance. He notes that his article was written in response to that reading and aimed to supply what he felt was missing from that issue.
A religious court as a corporation, majority, and nullification by majority
The author describes an article by a lawyer named Kurtzman on whether one should treat a religious court as a corporation with independent legal standing or as a set of three individuals. He suggests one possible implication through the question of liability for a court’s error: should the judges pay personally, as in “an error in halakhic ruling,” or should the public treasury bear the cost, as with an ordinary public institution? He enters into a halakhic discussion of the relationship between “follow the majority” and several laws: following the majority, nullification by majority, and “its majority is like its entirety,” and asks how nullification by majority is derived from the verse. He presents an explanation of later authorities through the structure of a religious court of three, where a ruling of two against one creates a situation in which the minority is “nullified” to the majority so that the ruling counts as the ruling of three. He argues that the corporate perspective fits better with “its majority is like its entirety,” because what matters is what “the court” ruled as one entity, not what each judge says, whereas the model of nullification actually describes an individual perspective in which the minority judge “becomes” like the majority.
Olive harvesting, non-Jewish ownership, and the distinction between sovereignty and ownership
The author presents a responsum of Rabbi Ariel regarding olive harvesting in areas of Palestinian ownership and damage to olive trees, touching on the question whether a non-Jew can have private property in the Land of Israel, and whether “a non-Jew has ownership in the Land of Israel.” He presents the heart of the claim as a distinction between sovereignty and ownership, and argues that many moral and legal discussions mix up those two planes. He says that on the private plane, whoever proves private ownership—“it’s his,” whereas the question of sovereignty is a question of the collective, not of ownership over private property. He compares this to the distinction between the civil rights of individuals and the national rights of minorities, and describes the possibility of not granting national rights without violating private rights. He adds that even when sovereignty interferes with ownership through nationalization, that is a state action that illustrates that the two discussions are in principle “independent.”
Education in hesder yeshivot, majority versus public, and a Zionist repentance movement
The author describes an article arguing that one should not focus so much on the yeshiva style of analytical study because it “doesn’t suit most of the public,” and in his view this again reflects the dispute between an individual perspective and a public one. He presents a position according to which, if all yeshivot follow the majority and become populist, the public outcome will be “terrible,” and therefore the public interest may actually require cultivating an analytical minority. He sharpens the point that the question is not always “the public interest versus the interest of the majority,” because sometimes “the majority” is an individual category, while “the public” may justify following the minority. He mentions another article about the idea of a “Zionist repentance movement” as a context in which there is a public cost versus bringing a private individual to repentance, and notes that although he disagrees with the content, he identifies the same structural tension there.
Women, “the needs of the collective,” and subordinating the private to the public
The author brings an example of an article that called on Jewish girls “to deal only with the needs of the collective” and to give up personal desires like Torah study and career for the sake of children and caring for the home. He presents that writer’s claim as subordinating the private to the public interest, and notes that he disagrees with the position but again identifies the same pattern of confrontation between individual and collective. He adds a personal methodological rule: that in many disputes “both sides are wrong,” with the exception that he agrees with Rabbi Ariel and partially with Kurtzman.
The missing claim in “Tzohar”: two valid sides and the balance between them
The author argues that the articles in the issue presented the individual versus the public as an “either-or” dilemma, whereas in his opinion both lenses are correct and one must “adopt both of them.” He says that when there is a conflict one has to clarify how to maneuver and create a delicate balance, because the two perspectives can lead to contradictory conclusions. He notes that he will sharpen this later in the context of the language of rights versus the language of duties, even though he admits the connection is not exact.
Rabbi Israeli, Qibya, and the prohibition against harming innocents
The author presents Rabbi Israeli’s famous responsum written after the Qibya operation as a common basis for discussions of issues like Jenin. He formulates Rabbi Israeli’s conclusion as an absolute prohibition against harming innocents even in warfare, because that is harm to a third party and falls under “a person may not save himself at the cost of another’s life.” He emphasizes that Rabbi Israeli rules that this is “no different whether it is a non-Jew or a Jew,” and although the source of the prohibition against killing a non-Jew is not “You shall not murder” but “Whoever sheds the blood of man, by man shall his blood be shed,” for this purpose it is the same “one must be killed rather than transgress.”
“Territorial considerations,” Rashi, Arukh LaNer, Rabbi Shimon Shkop, and duties and rights
The author mentions Rashi’s approach in Bava Kamma that a person may not save himself even with another person’s money, and brings Tosafot’s question why robbery is not counted among the three severe sins of “one must be killed rather than transgress.” He suggests that the prohibition against taking another person’s property does not fundamentally stem from the prohibition of robbery, but rather from the principle that the money is “yours,” and therefore only the owner decides what is done with it, while the prohibition of robbery is a halakhic derivative of that territorial boundary. He illustrates this with the image of taking an organ for transplant, and argues that even if the prohibition of bodily injury is set aside for life-saving, one still has no permission to take from another person, because there is no “right to receive” even if the other may have a “duty to give.” He formulates this as “territorial considerations,” according to which halakhic considerations can be activated only on “my territory” and not on “someone else’s territory,” even if the consideration itself is correct. He cites the Chazon Ish’s claim about two people in the desert, that the water is equivalent to the heart and taking it is murder, and adds Rabbi Shimon Shkop regarding robbing a non-Jew, according to whom even on views that there is no Torah prohibition of “you shall not rob,” the very ownership of the non-Jew prevents taking it.
War as a departure from private Jewish law and a turn to extra-halakhic rules
The author presents the continuation of Rabbi Israeli’s move, according to which despite the private prohibition, in war there are different “laws of war” in which prohibitions are permitted, and therefore war cannot be conducted according to the rules governing a private individual. He describes a position that appears in various articles, according to which the laws of war are determined not by Jewish law but by accepted international convention, and adds that even in internal security, such as hostages in a bank, the police operate according to the law and not by turning to a rabbi. He links this to the Ran’s Derashot, sermon 11, and to the conception that the king’s mechanism is an alternative mechanism, and explains that formally one can say that Jewish law “recognizes” the extra-halakhic rule similarly to “the law of the kingdom is law,” but in practice the decision is pulled from the law books, not from the Shulchan Arukh. He adds the claim that in terms of actual content, a “state of Jewish law” would look similar to the existing legal structure, including a change in the practical attitude toward claims like exemption for indirect causation in torts when the responsibility is “on us.”
A counterclaim: apply individual law to collectives and don’t run to “the laws of war”
The author says he does not agree that one must move to extra-halakhic laws of war, and argues that one can and should apply the individual laws themselves when the actors are collectives rather than individuals. He presents a central source in the Maharal on the portion of Vayishlach about Simeon and Levi, and brings Maimonides in the Laws of Kings, who explains the killing of the people of Shechem by saying that they failed to uphold the commandment of legal justice, meaning they did not create a just legal system as a public body. He sharpens the moral-practical difficulty of assigning responsibility to “the ordinary resident” under a king who allows no resistance, and illustrates this with Stalin as an individual who rules an empire by fear that prevents coordination against him. He concludes that although no individual person can act alone, one cannot exempt “this one and this one and this one” until a situation is created in which no one at all is responsible, because the collective phenomenon arises from the accumulation of contributions by individuals who are powerless on their own. He states that when it is impossible to act “with tweezers,” a phase appears in which what stands opposite you is a threatening collective, and then the mapping of the equation changes: instead of seeing the uninvolved as a “third party,” he proposes seeing the collective as a whole as the threatening party, so that the discussion returns to the law of the pursuer and not to the rule of “saving oneself at another’s expense,” while qualifying that this is not a blanket permission “to kill everyone all the time,” and saying the continuation of the clarification is postponed until next week.
Full Transcript
[Speaker A] I
[Rabbi Michael Abraham] want to begin today the final part of the current series, which is dilemmas involving life-saving situations. We spoke about this on the private plane, and I want to move to the public plane. I touched on the public plane a bit, we talked a little about the kites and those kinds of things, but I want to discuss it a bit more systematically, and in the end we’ll even get to what you sent me. I told you I need the public plane first before I deal with that. Okay, so the picture I’ve described up to now basically set two principles against one another. One principle is the law of the pursuer; the second principle is that a person may not save himself at the cost of another’s life—one must be killed rather than transgress in the matter of murder. And I tried to show how dilemmas involving life-saving, in different fields—medical fields, security fields—basically map onto the question of which of these two principles is the right one to apply to the case under discussion. That, broadly speaking, is what I think I did. And within that, I tried to show a kind of scale within each of the two principles. I said that in extreme cases, when one principle appears in a pure form, then it doesn’t matter at what level the other principle appears, and vice versa. But in all the intermediate cases there can be some kind of balance between the two sides of the equation. But broadly speaking, that was the equation. The equation was: are we in the realm of the laws of the pursuer, or are we in the realm of saving oneself at the cost of another’s life? And if I translate that more concretely: is the party I need to harm in order to save myself the party threatening me, or is he a third party? That’s really the question. If he is the party threatening me, then it’s the law of the pursuer; if he—or if he is threatening someone else, that doesn’t matter right now—or if he’s a third party, then it’s saving oneself at the cost of another’s life. So basically, I think that in essence this is almost everything that happened in all the dilemmas I’ve dealt with until now. And I’ll try to show that here too that’s the case, but it goes through an interesting twist in the public context. I’ll begin—this is based on an article I wrote. I’ll send it by email afterward to Hillel, and he can pass it on to whoever wants it. I wrote that article after I read—two things happened that led me to write it. One thing: I read an issue of the journal Tzohar, issue 13, and there was there—it was very interesting because there was a whole series of topics that seemingly had nothing to do with one another, and all of them somehow revolved around a question of a dilemma between private individuals and the public. In a minute I’ll spell it out more. That was on the one hand. On the other hand, this was a bit after Operation Defensive Shield, where what happened there was—yes, I’m talking about Jenin now—and what happened there was basically that the IDF was around some section, I don’t know, neighborhood or something like that of the city of Jenin. Inside it, in that section, all kinds of terrorists had barricaded themselves, and there were apparently civilians there too, maybe even children. They talked there about how they were holding a child in one hand and a weapon in the other, like the old stories. And there was a dilemma whether to bomb from above and finish them all off together, which means also hitting children and uninvolved people, or to go inside, and then of course you risk the lives of the soldiers, because you’re fighting there house to house, and it’s a complicated business. In the end they decided on the second option. A lot of soldiers were killed there; I think around twenty soldiers were killed there in that place.
[Speaker A] A Ra’anana unit that lived not far from here. Okay, and I was there that day, I was there at 11 that day, and in my opinion one of the big mistakes there was that they surrounded them from four directions, and they had nowhere to escape.
[Rabbi Michael Abraham] Yes, right, that’s the story. Okay, anyway, one of my students in Yeruham had an officer there, so I know a bit from him, but yes, roughly that kind of picture. So at that time I was very occupied by this question: what do you do—go inside and risk soldiers’ lives, or bomb from above and hit uninvolved people? Tzvika says there was actually a third option: surround them from three directions and let them escape, and then that solves the problem. Fine. But in principle I want to discuss the relation between the first two options. Like in Hiroshima—I don’t know, I’m not sure that’s the same dilemma.
[Speaker A] Because in Hiroshima it wasn’t that the soldiers would go in among the Japanese, the Japanese soldiers.
[Rabbi Michael Abraham] Yes, but that wasn’t the specific threat coming from Hiroshima and Nagasaki. It was some kind of deterrence aimed at all of Japan. In any case, maybe that connects to the next part. Anyway, what sharpened the issue for me even more was that no halakhic positions were really heard on that question. Again, I’m not talking now about real time. I mean, I don’t think the army was waiting for some rabbi to tell it what to do. But still, our students, for example, were waiting to hear what people would say—what does Jewish law say in a situation like that? And the feeling was that there was some kind of deafening silence there, and it wasn’t entirely clear what that silence meant. Did that silence mean that people didn’t want to get entangled? Did it mean that Jewish law is simple here but apparently won’t be followed? I don’t know—I wasn’t clear what exactly was going on there. But I remember that at the time it bothered me a lot: why isn’t this being dealt with in an orderly way? And then came the final blow, the hammer blow, so to speak. Not too long after that, the head of the Jewish law branch in the military rabbinate came to us in Yeruham, to the yeshiva in Yeruham, and gave a lecture there about the lessons learned from Operation Defensive Shield. I’m starting to laugh even though the subject is really not funny, but—the lessons learned from Operation Defensive Shield. Okay, so I was sure he was now going to put the main question on the table. And then he started explaining to us what happens if a reserve soldier gets called up on the Sabbath and he needs to pack the soap into the kitbag, and the question is whether to take the soap in his mouth and put it in the kitbag, or with his left hand, or with both hands together, or something like that. So these are the new lessons from Operation Defensive Shield. Nobody ever packed soap in any other military operation. I’m not belittling the law of muktzeh—well, actually I kind of am—but with all due respect, that is not the lesson of Operation Defensive Shield. It was simply a scandal. Afterward I made a whole Purim joke out of it, that Purim afterward. Anyway, it sharpened this scandal for me even more. Someone actually comes and talks about the lessons of Operation Defensive Shield, and he’s responsible for Jewish law in the military rabbinate, and not a word—people don’t even understand that this is a question that is supposed to land on your doorstep. Meaning, you have to say something about this matter. Again, I’m not claiming the chief of staff would have listened to him if he had said something—I assume not. But on the other hand, the chief of staff also doesn’t listen to him about whether to pack the soap with your mouth or your left hand. That too he doesn’t listen to him about. If you want to tell our students some lesson from Operation Defensive Shield, then say something about the things that really matter. Okay, those are the general motivations. I’ll go back to this issue of Tzohar, issue 13. There were several articles there, and I began with a survey of those articles from this angle of dilemmas between private individuals and a collective or the public. So there was an article there by some lawyer, a man named Kurtzman, where he discusses the question whether one should treat a religious court as a corporation. A corporation, in legal terminology, is basically some kind of organization that has independent legal standing. An organization is always made up of people—unless it’s an organization of ants—but an organization is made up of people, yet on the legal level what you see in front of you is not the private individuals that make up the organization, but the organization itself. It’s a legal entity; there’s what’s called a corporate veil between the private individuals and the company. And the question is whether we see the religious court as a corporation or whether we see it as a collection of three people. One implication, for example, could be the implication I wrote about, but another implication could be, for example, what happens if the court makes a mistake, if the judges err—who is to blame? Are the judges to blame? Do they have to pay? Does each one pay from his own house as in an error in Jewish law? Or does the public treasury pay? By the way, in ordinary mistakes of a public institution, the public pays. Unless someone was negligent, and then some kind of personal liability is imposed on him. But at the principled level, the public pays. Sometimes that really is outrageous. Anyway, so he discusses there the question whether one can treat the religious court as a corporation or not as a corporation. By the way, I don’t think his proofs were all that convincing, but the discussion really did reflect this dilemma: how do you view the three judges? Do you view them as three people, or as some kind of organization made up of three people, but that organization has independent standing? The judges, the judges or the corporation?
[Speaker C] No, that’s the question,
[Rabbi Michael Abraham] whether to see it as three judges or to see the court as a corporation. The court itself is a corporation, yes. The court itself is some kind of organization like that, and I’m not looking at each judge separately. Yes.
[Speaker A] There are appointees, after all, people who are appointed, or they appointed themselves.
[Rabbi Michael Abraham] No, no, let’s say an appointed court for the sake of discussion. Though it doesn’t really matter, because even if the two sides appointed them, the two sides chose them, still with respect to those two sides you can look at the court as a corporation. Relative to those two sides. Something like that. The public as a whole. So for example, in the laws of mixtures we learn from the verse “follow the majority” several laws. One law is following the majority; another is nullification by majority; a third is “its majority is like its entirety.” Again, each of these laws works differently. Not all of them are explicitly derived from there, but medieval authorities and later authorities somehow connect all these laws to the verse “follow the majority.” And there’s a kind of dilemma about how you derive nullification by majority from the verse “follow the majority.” Following the majority is in the Talmud in Hullin 11, but nullification by majority is from medieval authorities—Rashi and others—who derive it from “follow the majority.” And the question is: how does that come out of the verse? How does it follow from the verse that if there is a minority of prohibition in a majority of permitted material, then the prohibition is nullified in the permitted majority? Why is that connected to the verse? In “follow the majority,” the Talmud says you go after the majority. Follow the majority. And that too is not always so. What? It’s also not always so. What isn’t always so? That the majority nullifies.
[Speaker A] No, when the conditions for nullification are met, never mind,
[Rabbi Michael Abraham] when the conditions for nullification are met, when there is no taste involved or when there’s enough majority, whatever. Anyway, several later authorities write—some Tosafot in Bava Kamma page 26? No, it’s 27, that’s where this is learned. Several later authorities write that after all in a religious court, we learn at the beginning of tractate Sanhedrin that for monetary law you need a court of three judges. Yes. “God, God, God” is written three times in the passage, and a court does not incline with two, but the Talmud learns from there that you need three judges. Now if in a certain case two judges rule against one, then you follow the majority. But, says Rabbi Chaim, if you say that you follow the majority, then it turns out that you ruled based on two judges, not on three. The Torah says you need three, so what does that mean? Apparently the dissenting judge, the minority opinion, is actually nullified to the majority opinion, and so there are three judges saying this ruling. That is why the Torah’s law that there must be three judges is fulfilled. Fine, let’s say it’s a very questionable proof, because maybe for the deliberation you need three—who says the ruling itself has to come from three? But the question is a good question. That is, how do you derive nullification by majority from the verse “follow the majority”? That’s a good question. In any case, what stands behind this—and I think that’s one of the proofs he brings there—is that the minority is nullified and becomes part of the majority. And that is really the law of nullification by majority. So beyond following the majority, there is also the law of nullification by majority in a court. First of all, you rule that the two are right and not the one; that is, the ruling goes with the two. Second, those two are not counted as two, but as three. Why are they counted as three? So the first law is following the majority; the second law is nullification by majority. Meaning that through nullification by majority, the third—the minority opinion—is nullified to the two and becomes like them. Yes.
[Speaker A] In the corporate model, the corporation gives the answer. It’s not two and one.
[Rabbi Michael Abraham] No, that’s what he argues, that’s what he argues. In fact, once he argues that, it’s actually even more than that. It’s probably “its majority is like its entirety”; it’s not nullification by majority. “Its majority is like its entirety” is in a case where, say, regarding the Passover offering, if the entire public is impure, then they bring it on the first Passover and don’t postpone to the second Passover. What happens if the majority of the public is impure, not the whole public? So the Talmud says that even if the majority of the public is impure, they bring it on the first Passover, because there is a law that its majority is like its entirety. That law is of course unrelated to following the majority, because following the majority is in the laws of evidence. If most stores are kosher and one is non-kosher, and you have a piece of meat and don’t know where it came from, then you assume it came from the majority. Here that’s not the story. Here there is nothing under discussion about whether it belongs to the majority or to the minority. There is no “separation,” as it’s called. Nothing has separated from the majority or from the minority. Rather, you are relating to the status of this public. If the majority are impure, what is the public? What is the status of the public? And it’s not nullification by majority either. It’s not nullification by majority because in such a case there is no nullification by majority; we know who is impure. And for nullification by majority you need a mixture where the minority is not identifiable. Then the minority—I disregard its existence and assume it counts like the majority. But here I know, out of the whole public there are, say, a hundred impure people. I can point to them. There is no nullification here; the laws of nullification do not apply here. It’s clear that what the Talmud means here is the law that its majority is like its entirety. And what is that law? You want the public to be impure. Now not the whole public is the same—only the majority of the public is impure. So what are you saying? From my point of view, if the majority of the public is impure, that counts as if all of it is. Meaning the majority counts as though it were the entirety. That’s a third law. It is not nullification by majority and it is not following the majority. I think that what can be learned from “follow the majority” in the case of a court, if what Rabbi Chaim says is also true, is more the law of “its majority is like its entirety” than nullification by majority. And then it really already starts moving closer to the idea of a corporation. Because it basically says that there is some whole called a religious court. I want to know what that court says. I’m not discussing what each judge says. I’m discussing what this group, this institution—what did this institution rule? And about that I say there is a law that its majority is like its entirety. If two out of the three members determine this, then as far as I’m concerned the court ruled that way. And that sharpens even more why I don’t need the nullification of the third judge at all. It’s not that the third is nullified to the two. Rather, the two determine the character of the court, because we follow the two and not the one. And now the court has spoken. Not that the third judge—on the contrary, the nullification perspective is actually the non-corporate perspective. It’s the perspective that says: I want to know what each judge says. The judge in the minority opinion is nullified, and it’s counted as though he too says like the majority opinion. That is specifically a non-corporate perspective, an individual perspective. The corporate perspective says: I’m not interested in what each judge says. I’m asking what the court as a whole says. If there is a dispute of two against one, the court says what the two said. Meaning that is the ruling that comes out of this institution or this organization. That was one comment. A second comment: I saw there a responsum by Rabbi Ariel in that same issue about olive harvesting in areas under Palestinian ownership. There the issue was some kind of thing with the Hilltop Youth or I don’t remember what—people began damaging Palestinians’ olive trees. And Rabbi Ariel basically dealt there with the question whether a non-Jew can have private property in the Land of Israel. Whether there is ownership that can remove sanctity, whether a non-Jew has ownership in the Land of Israel. And “a non-Jew does not have ownership in the Land of Israel,” and basically the heart of his argument was a certain distinction that comes up also in agro-political and moral contexts, a distinction between—in my language—a distinction between sovereignty and ownership. Meaning, yes, for example in the contexts of the War of Independence. In the contexts of the War of Independence there are a lot of Palestinian claims that private property was taken from them, and that the State of Israel basically robbed them. For example, the army or whoever it was robbed them. And that gets mixed together with the claim to sovereignty over that territory. Meaning people really want a state, not necessarily private property. And one has to distinguish between those two discussions. And at the principled level, I think that’s the accepted view, and I think it is clearly correct, that on the private plane there is no room whatsoever to argue with such a claim. Whoever proves private ownership—it’s his. There’s no question here. The question is on the plane of sovereignty. Meaning, even if private property was taken from people, then yes, fine, it has to be returned to them. Does that mean that the state was established in sin? No. Because the fact that the state was established means it imposed sovereignty over the territory, not ownership of the territory. Sovereignty is ownership of a collective in a certain sense, as distinct from ownership of private property, where each item of private property belongs to a particular person. And these are two different planes that often get mixed together both in legal discussion and in moral discussion around the War of Independence. And again, the question is whether to relate to the people opposite us as private individuals, or to relate to them as some kind of collective, in which case they have claims of sovereignty and not claims of ownership. Sometimes people talk about minority rights in the context of a democratic state, and distinguish between the rights of private individuals, civil rights, and national rights. Two different things. So one can withhold national rights from national minorities and at the same time not violate the private rights of individual people.
[Speaker D] And how is that connected to the issue of olive harvesting? Private people with private olives.
[Rabbi Michael Abraham] What? No, that’s exactly what he was trying to explain—that it isn’t connected to the general political discussion about sovereignty, because this is a question of ownership. Exactly. No, he was trying to explain—why did he need to write the article? He needed to write it because people mix up the question of sovereignty with the question of ownership.
[Speaker A] If you go all the way and assume that in 1948 the whole country was privately owned.
[Rabbi Michael Abraham] Then there would be sovereignty of the State of Israel over a collection of lands belonging to Palestinians, at the principled level. How you deal with that practically, I don’t know. Maybe the state would nationalize some of the property.
[Speaker A] It can nationalize, there’s always nationalization.
[Rabbi Michael Abraham] No problem, no problem. That’s an act of the state. But at the principled level these are two independent questions.
[Speaker A] Here too each person abandons his own, here in the state as well.
[Rabbi Michael Abraham] So that’s exactly the answer to your question: it doesn’t matter. Meaning the discussion is on two completely different planes. The discussion about ownership and the discussion about sovereignty are two completely different planes. Sometimes, if there is overlap between the two, then the state may decide to nationalize, and then sovereignty will intervene in the question of private ownership.
[Speaker D] And that’s part of the discussion regarding the Nation-State Law, among other things—that is, you know, the standing of private rights versus national rights. Yes, right, right.
[Speaker E] Yes, and also what you said about eminent domain, that the government has the authority, if it needs something for the public, to take it from the private individual.
[Rabbi Michael Abraham] Nationalization, that’s what we were talking about before. Nationalization, yes. So here too there was a certain tension between the private and the collective. Another discussion—this was interesting, because in that same issue, once I looked at it through the lens of rules and particulars, of public and private, almost all the articles somehow connected to it. There was another article there about the focus of study in hesder yeshivot. Someone wrote there that one shouldn’t deal so much with yeshiva-style analytical study. All in all, it doesn’t suit most of the public. Rather, one should do something more—I don’t know—more suitable to the popular level, the mainstream, yes, more popular exactly. And again, I argued that this is the same dispute, because in the end if all the yeshivot deal with the popular layer, we’ll be in terrible shape, we’ll all be shallow and popular. So the question again is whether in the end you prefer the public interest—and here it becomes even more interesting—the question is whether it’s the public interest or the interest of the majority, and those stand against one another. When you look at this question as a question of individuals, you say: it doesn’t suit most people. So from the individual perspective you follow the majority. From the public perspective you may have to follow the minority, at least in certain cases. Meaning, the majority does not always coincide with the public, just as I said regarding the Passover offering. Sometimes the consideration of the majority actually comes from an individual lens, and the consideration of the public can tell us to go with the minority. Okay, there was another article there about whether to create a Zionist repentance movement. And there too there was some dilemma: you bring a person back to repentance, but what public price do you pay? I don’t agree at all with what he wrote there, but again, I’m only illustrating the point: this comes up in all kinds of contexts. But in almost all the articles in that issue—and I assume in other issues too, if I had looked, it wouldn’t be far off—it turned out that they were dealing with this tension between looking at the public as a collection of private individuals, which leads to one conclusion, or looking at it as a public, in which case it can lead to other conclusions. And sometimes the dilemma really is which of these two perspectives prevails. I want to argue—yes, there was another nice article there, some fellow wrote that he called on good Jewish girls to deal only with the needs of the collective and to leave aside their personal desires, their private spiritual advancement, and therefore not to study Torah, not to pursue a career, not to do anything, but rather to have children and take care of the home. Kind of the opposite of what you might have thought from the first sentence.
[Speaker A] That was from an issue of Tzohar?
[Rabbi Michael Abraham] Yes. Yes, in Tzohar there are all kinds of people. Anyway, no, that’s actually good—you need to present the range of opinions.
[Speaker A] There is such an opinion, why not?
[Rabbi Michael Abraham] Completely. I think that if anything, one should discuss all the opinions that exist. That’s perfectly fine.
[Speaker A] It’s not that you agree with everything…
[Rabbi Michael Abraham] In any case, I’m prepared to die for your right to say what… Anyway, again, here too I don’t agree, but the presentation of the dilemma was once again this: the woman on the private level wants to advance, both in fear of Heaven and in a career and in various areas, and that is perfectly fine on the private plane. But he argued that on the public plane, that becomes more of a kind of harm, and the private matter should be subordinated to the public interest. So you see…
[Speaker A] Any more examples of articles you do agree with?
[Rabbi Michael Abraham] What? No, I already told you once: when I see an argument, my default assumption is that both sides are wrong. That’s usually my presumption. The burden of proof is on the person who says one of them is right. Meaning, if you prove it to me, then maybe I’ll accept it. But generally, in every argument both sides are wrong.
[Speaker A] So when you read an entire issue of articles and you keep…
[Rabbi Michael Abraham] No, you don’t need to apologize. You said it, and you’re right, you’re right.
[Speaker A] Something with Rabbi Ariel?
[Rabbi Michael Abraham] No, with Rabbi Ariel I agree. With Rabbi Ariel I agree. Okay, and with Kurtzman too, partially. Again, the point is that I think what was missing for me in that whole issue—and that’s what I wrote my article about in the following issue—was
[Speaker A] that they presented
[Rabbi Michael Abraham] These things were presented as some kind of dilemma. No—well, yes, what, I have a lot of articles in Tzohar. I think I have more articles than any of the writers in Tzohar. In any case, all the writers, from all the different contexts, presented this as some kind of dilemma between individuals and the collective. Again, after my reconstruction, I’m saying that basically everybody presents it as some kind of dilemma between individuals and the collective, but my feeling was that something was missing there—and in this, both sides are mistaken. What was missing was the picture that this is not one against the other; both aspects are correct, and both need to be adopted. The question, of course, is what to do in practice when there’s a conflict, but the feeling was that basically each side was telling me: no, no, don’t bring in the public aspect here, there’s only the private aspect. And the other says no, what are you talking about, erase the private aspect—it’s pushed aside, the public aspect completely overrides it. Whereas I think what was missing was this picture that says there are two aspects. Two aspects, and you have to strike a delicate balance between them and see what exactly is done in practice, because these two aspects can lead to contradictory conclusions. I’ll sharpen this further later when I
[Speaker A] discuss it in the context of rights discourse and duty discourse, right? Why? Because when it’s the private aspect, that’s rights; when it’s the public aspect, that’s duties.
[Rabbi Michael Abraham] But you can also relate to duties as a private aspect—I have a duty toward you, that too is a duty between private individuals, and not a duty toward the public. Yes, true, I wouldn’t necessarily connect it specifically to duties versus rights. Okay, so that’s the background to the issue. As I already said in advance where I’m trying to get to, I think that in the end the more balanced picture is that there are these two aspects, and the question is how to maneuver between them, and I’ll explain where this comes to expression. In practice, the discussion of this topic—I’m now going back to Operation Defensive Shield—the discussion of this topic, of whether to bomb from above or go in and risk soldiers, or discussions of related questions, often rely on Rabbi Yisraeli’s famous responsum. Rabbi Yisraeli wrote a responsum after the Qibya operation, and he asked there what was permitted to do, what the problem there was, and he discusses this issue there—a very long responsum in Amud HaYemini. And within his discussion he basically reaches the following conclusion. He argues that it is forbidden to harm innocent people even when you are fighting against someone you need to fight. There is an absolute prohibition against harming innocent people. Why? Because of what we discussed before: a person does not save himself through the life of another. Meaning, you cannot kill one person even if your life is in danger, because your blood is not redder than the blood of an uninvolved person. Yes, meaning innocent—not someone threatening me. Someone threatening me is under the law of a pursuer. But if there is someone else who is not involved, he is not threatening me, and my self-defense will harm him—that is, I need to kill him in order to succeed in the war and save myself—that is forbidden. That is his claim. More than that, Rabbi Yisraeli there writes something even more far-reaching: he says it also makes no difference whether it’s a gentile or a Jew. Contrary to what many people think today, it’s true that with regard to a gentile, the Torah prohibition against killing him does not come from “You shall not murder” but from “Whoever sheds the blood of man, by man shall his blood be shed.” It is a Torah-level prohibition, but it is not “You shall not murder,” and there is no death penalty for it as there is for killing a Jew. But for this matter, says Rabbi Yisraeli, that makes no difference at all whether you harm a gentile or a Jew. So even if you harm a gentile, you are forbidden to do it; it is something for which one must be killed rather than transgress. What is the idea behind this? I remind you, these are all things we already discussed; I’m just now going to give them a public translation. The idea behind it—we discussed Rashi’s view in the chapter HaKones in Bava Kamma, where he says that a person does not save himself through another person’s property. Even through property, not only through another person’s life. Meaning a person has to die rather than steal or cause damage. King David, yes, who did not want—it was forbidden for him—to burn the barley behind which the Philistines were hiding, even though he needed that in order to win the war. But he cannot harm someone else’s property unless he is a king. A king may breach fences, and that is permitted, but on the personal plane it is written that it is forbidden to do this. Why is that? So I explained that I think what stands behind this—I brought in Arukh LaNer and Rabbi Shimon Shkop regarding torat hamishpatim, and the Arukh LaNer is in the responsa Binyan Tziyon. He has several responsa there that touch on this issue. And the basic claim—Tosafot asks on Rashi, because Rashi says this thing and Tosafot asks him: then why isn’t theft counted among the severe transgressions for which one must be killed rather than transgress? Basically you’re saying that I need to die rather than violate the prohibition of theft, so why are there only three severe transgressions—there should be four? Theft too should be a prohibition for which one must be killed rather than transgress. So I said there that I think the matter is that indeed the prohibition of theft is overridden in the face of saving life, but my inability to take someone else’s property does not stem from the prohibition of theft. The prohibition of theft stems from the inability to take the property, not the other way around. Meaning, in the end I cannot take your property not because of a halakhic prohibition. I cannot take your property because it is yours. Simply yours. Your property—only you can decide what is done with it. Therefore I cannot take it, even if the prohibition of theft is overridden because I’m in a life-threatening situation. Fine, the prohibition of theft is overridden—what does that have to do with me? He has to decide what to do with his property. Yes, I brought that example from Mordechai Halperin’s debate about the… yes, I need, I don’t know, a lung for a transplant, okay? No one is donating one to me. So I grab somebody off the street, drug him, take some expert surgeon, bring him into the hospital, rob him of a lung, transplant it into me. No problem—you can live with one lung, or one kidney, whatever, and that’s it, everything is fine. What’s the problem? I committed the prohibition of injuring someone—well, that prohibition is overridden in the face of saving life. After all, I’m in mortal danger, I’m about to die. What’s the problem? Why is it forbidden to do that? They’ll tell me, but there are other candidates—fine, that’s a technical argument. Let’s say we’re on a deserted island, that would essentially mean it’s permitted. To me it’s obvious that it’s forbidden. Why is it forbidden? Because the problem is not the prohibition of injury. I cannot take his kidney because it is his. Not because there is a prohibition of theft or a prohibition of injury, but because it is his. He decides what is done with it, whether to give it or not to give it. And by the way, even in a place where he is obligated—he is not obligated in this context—but even in a place where he is obligated to give it, I still cannot take it. He is obligated to give it, but if he decides not to give it, then he is in the wrong—but I cannot take it. I have no right to receive this thing; there is an obligation on him. Here we enter duties and rights. There is an obligation on him to give it to me; I have no right to receive it, and therefore I cannot take it, take or receive, same thing. And therefore I really cannot do this on my own initiative. And so my claim, basically—we talked about this and I won’t go back over all the details again—my claim is that the prohibition of theft is overridden in the face of saving life, so it is not one of the three severe prohibitions; it is overridden. But even though there is no prohibition of theft, I still cannot take that property to save myself, because that property is yours; you make the decisions. Maybe you remember I mentioned once that I spoke about “You shall not covet,” about my clown of a friend from Bnei Brak—we were sitting there by some table and someone was holding a book that he really wanted, so he says to me: there are two options. Either I take your book and then I violate “You shall not steal,” or I leave the book with you and then I violate “You shall not covet,” so in any case I’m violating a prohibition—at least let me take the book. That is mistaken, of course, in the parameters of “You shall not covet,” but even suppose he were right—what’s the problem with that argument? No problem at all, except that you’re making a halakhic calculation about someone else’s property. Even if that halakhic calculation is correct—not because it isn’t correct—even if that halakhic calculation is correct, only he gets to make decisions about his book, not you. You cannot—even if you’re halakhically correct—you cannot take a book without his consent, his book without his consent. Only he makes the decisions. Therefore the claim, basically—I called this territorial considerations. Meaning, there are territorial considerations that say that I can make my halakhic argument about what I am allowed and forbidden to do only on my own territory. I cannot make halakhic calculations, even if they are correct—not because they’re incorrect, even if they are correct—about something that is in another person’s territory. In another person’s territory, he makes the decisions, not me. And therefore the claim against me is not that I’m making a halakhic mistake. The problem is not that I’m making a halakhic mistake; the problem is that even if I’m halakhically right, if I’m halakhically right then I should act on my own property, not on someone else’s property. He makes the decisions. And if his decision is not correct, then he will answer for it in the heavenly court—that’s another matter—but I cannot do it.
[Speaker A] There was once a class here on the wayward and rebellious son, and one of the explanations was—this is a public issue here, I think it’s public—that one of the considerations was that the one who has the water, yes, the second one can rob him because he
[Rabbi Michael Abraham] can save himself, according to the Chazon Ish, through another person’s property.
[Speaker A] So then each one can steal from the other,
[Rabbi Michael Abraham] But there the Chazon Ish argues—and according to Jewish law most of the medieval authorities (Rishonim) disagree with Rashi, and they claim that theft is indeed permitted in a life-threatening situation.
[Speaker A] And therefore there each one can steal.
[Rabbi Michael Abraham] What the Chazon Ish argues is that it is still forbidden to take the water because taking the water is not theft but murder, and murder—you cannot murder one person in order to save yourself.
[Speaker A] But derivatively, I mean at the first blow,
[Rabbi Michael Abraham] No, no—he argues that it is murder. Not that the result is that someone will die; it is the prohibition of murder. He can take his heart—if you take his heart he stops breathing, but that’s only indirect causation; I merely stole. I mean, afterward the person stopped breathing—what can I do? I stole. It’s like saying, “an inevitable consequence, but he need not die,” because you cut off a chicken’s head—what is it my fault that it died? I needed a head to play soccer with; I didn’t intend to kill the chicken. So the Chazon Ish argues that in such a situation, where two are walking in the desert, the water is like a heart. Meaning, if you take his water, you murdered him. So his claim here is that even according to those who disagree with Rashi, it would still be forbidden to steal.
[Speaker A] But it’s indirect causation, so it’s permitted on the Sabbath.
[Rabbi Michael Abraham] No, that’s the point—it’s not indirect causation. The claim is that it’s murder; that’s exactly the point. But is there indirect causation in damages?
[Speaker A] By the way, indirect causation is permitted in damages, not on the Sabbath.
[Rabbi Michael Abraham] No, on the Sabbath not—it depends; it’s a dispute between the Rosh and Rashi. A dispute between the Rosh and Rashi whether indirect causation is permitted or forbidden on the Sabbath.
[Speaker A] There is Jewish law. What’s the Jewish law? Tzomet?
[Rabbi Michael Abraham] No, on the Sabbath—quite the opposite.
[Speaker A] There’s
[Rabbi Michael Abraham] regarding a water mill, a water mill—there’s the Even HaOzer and the Magen Avraham there, these are big disputes; it’s very unclear what the Jewish law is and who rules on indirect causation on the Sabbath. It runs into contradictions between Talmudic passages.
[Speaker A] Tzomet is based on that.
[Rabbi Michael Abraham] Right, and Tzomet also permits it where there is need. They didn’t tell you to drive with all their devices all the time—why? Exactly because of this, because they make use of certain views where there is need, so then you can rely on certain views. Maybe we’ll talk about Tzomet sometime—Tzomet has other problems too beyond that, I think, in the whole conception of Tzomet. In any event, in any event, it is always theft, but
[Speaker A] it’s always someone else’s territory, right? So what is theft if the Torah creates a prohibition of theft, but the prohibition of theft is not because of that?
[Rabbi Michael Abraham] It is forbidden for me to take your property. It is forbidden to take your property even without the prohibition of theft; it’s just that once it is forbidden for me to take your property, the Torah says that besides that, you also violate a halakhic prohibition, namely the prohibition of theft. But yes—even if the halakhic prohibition is overridden, it is still forbidden to take your property. And yes, that is theft. Correct. So why isn’t it permitted?
[Speaker A] What, it’s not a prohibition, but it’s not mine.
[Rabbi Michael Abraham] In reality, as it were. Why is it forbidden to go into a fire? Because you get burned, not because it is forbidden to go into a fire. Whoever goes in won’t come out. It’s something like that. What they’re telling me is: everything Jewish law talks about, it talks about on your territory. As for what pertains to what’s outside—leave Jewish law aside, it’s irrelevant. You are not a relevant party in that territory.
[Speaker F] Then the halakhic consideration doesn’t matter to you. Have you left the subject of war and the public? What? You’ve left the subject of war—that is certainly not true in matters of war.
[Speaker A] Wait, wait, we’ll get to the public. I’m on the way.
[Rabbi Michael Abraham] So the claim, the claim, yes, so Rabbi Yisraeli’s claim is basically the claim of—let me maybe give an example, I’ll continue with this example. Rabbi Shimon Shkop in Shaarei Yosher argues, for example, regarding theft from a gentile—I’m returning to Rabbi Yisraeli’s gentiles—yes, regarding theft from a gentile. So he says that theft from a gentile, even according to the views that hold it is not forbidden by Torah law—it’s a dispute among the medieval authorities (Rishonim)—even according to the views that hold it is not forbidden by Torah law, it is forbidden by Torah law. Meaning, as it were, it is forbidden by Torah law because it belongs to the gentile, not because of the prohibition “You shall not steal.” There is no prohibition “You shall not steal,” but in my language, it’s not in my territory. So what if there is no “You shall not steal”? The problem is not the prohibition; the problem is that it simply is not mine. Clearly a gentile has ownership—no one disputes that. The question is whether there is a prohibition of theft when I infringe on it, but no one argues that a gentile has no ownership of property. And once he has ownership, by virtue of the very fact that he is the owner, I cannot take it, regardless of the prohibition of “You shall not steal.” A practical difference concerns an etrog under the rule of “it must be yours”: if I take a gentile’s etrog, I steal a gentile’s etrog, can I fulfill my obligation with it on the first day? There is a rule that it has to be yours, okay? If there’s no prohibition against stealing from a gentile, then what’s the problem? It passed to me and now it’s mine. He says no—even if there is no prohibition of “You shall not steal,” he himself brings this, from the Yere’im and the Magen Avraham—even if there is no prohibition of “You shall not steal,” it is still his property and you cannot take it. You cannot take it regardless of the prohibition.
[Speaker A] No, the prohibition of theft helps. If there is a prohibition of theft, then when you bring it to yourself you become the owner of it, you can use it, and if there is no prohibition of theft then it isn’t yours—it remains not yours.
[Rabbi Michael Abraham] I’m not sure there’ll be a difference. The claim is that if there is, say, despair of recovery and transfer of possession and all the criteria by which I acquire through theft, I assume that even where there is no “You shall not steal,” I acquire under the same criteria. If there was despair of recovery and transfer of possession, does the absence of “You shall not steal” mean I acquire less? That’s not reasonable, not reasonable. In any event, so the point is: what I want to say is that the prohibition against harming another’s property is not because of the problem of “You shall not steal,” but because it belongs to someone else. And therefore, says Rabbi Shimon Shkop, that is also true regarding a gentile—what difference does it make? Now if I return to Rabbi Yisraeli, it’s the same thing. Meaning, basically Rabbi Yisraeli is speaking about harming another person’s life, not his property, because according to Jewish law most of the medieval authorities (Rishonim) disagree with Rashi and in property cases it is permitted. But regarding life, he says it makes no difference whether it’s a gentile or a Jew. Why does it make no difference whether it’s a gentile or a Jew? Because the problem with harming another is not because of the prohibition “You shall not murder.” The problem with harming another is because “who says your blood is redder?” You cannot deal with his blood for the sake of your blood. You can deal with your own blood; you cannot take his blood. Once that consideration exists, it may be that there will also be a prohibition of “You shall not murder,” but that applies only to a Jew and not to a gentile. But the problem is not the prohibition. The prohibition is a derivative of the fact that you are invading a domain that is not yours. You are making calculations in territory that is not your territory; you cannot make those calculations there. You are not the Holy One, blessed be He. Meaning, you are responsible for your own little plot of God’s world, and you cannot enter the plots of other people. If you go with Rashi, of course the same thing will also apply to property. Meaning, according to Rashi, who says it is forbidden to harm someone else’s property in order to save yourself, there will be no difference between a gentile’s property and a Jew’s property in the same way, because it has nothing to do at all with the question of the prohibition of “You shall not steal.” It depends on the fact that it simply is not mine. I cannot make decisions about it. That’s the claim. Meaning, that is what Rabbi Yisraeli writes there. But he says, still, that can’t be right—how can it be that we cannot defend ourselves in a situation where there is harm to such people, even uninvolved people? And therefore he says: there are laws of war. Laws of war—war—and here he moves to the collective plane. War is conducted according to different rules from the rules according to which a private individual operates. In war, prohibitions are permitted; you can eat pork, because when going out to war, all kinds of prohibitions are permitted to them according to Jewish law. And therefore it is clear that there the rules are different rules. There are a few articles in this area; there’s Rabbi Sheviv, who passed away not long ago, he also has an article on this issue. As I recall, there are several articles in this area, and the claim basically is that the laws of war are not determined at all by Jewish law. That is the claim there in some of those articles that I remember. The laws of war are determined by accepted international convention. What is permitted and forbidden in war, when one goes to war and when one does not, is not connected to Jewish law, because this is our interaction with factors that are not in the halakhic world. And therefore public conduct, collective conduct—war is not conducted by the rules of a private individual. In other words, according to Rabbi Yisraeli, if I am under threat from someone and in order to defend myself against him I need to kill someone else, I am forbidden to do so. I am forbidden even if that someone else is a gentile, no matter what. As long as he is not involved, it is forbidden. That is what he argues. According to Rashi, as I said, I would even be forbidden to harm someone else’s property. The property of the one threatening me is certainly permitted—you may even kill him. The property of someone else I am forbidden to harm. Okay? But that is with a private individual. If, however, we are talking about the public, where the public is conducting a war, then in war the considerations are different. In war you have to make a different calculation.
[Speaker A] Do you have to declare war?
[Rabbi Michael Abraham] According to—if we go by international law, then yes. Meaning, because international law determines the laws of
[Speaker A] war, and if international law
[Rabbi Michael Abraham] says that you need to
[Speaker A] declare it, then
[Rabbi Michael Abraham] you need to declare it, subject to the rules of the American game. Yes, that is what would apparently come out.
[Speaker D] And what about what’s called internal security? You have a robber who enters a bank and takes hostages there. Okay, that’s not international.
[Rabbi Michael Abraham] That’s even easier—easier, meaning, to depart from private Jewish law in such cases. Because then what happens is that the Jewish public all belong to the same public; it’s not even an inter-public war. So here you don’t even need to resort to international law. Here, if Israeli law determines that it is permitted, that would also be enough, because this is an interaction of law with the boundaries of Jewish law.
[Speaker D] What if I’m a private person and not a policeman?
[Rabbi Michael Abraham] The police will come, and then they act according to the law, not according to Jewish law.
[Speaker D] And Jewish law has nothing to say?
[Rabbi Michael Abraham] That’s the claim—no. Meaning, if the public—this is not
[Speaker D] because it’s international,
[Rabbi Michael Abraham] no, but it is a matter of the public. The international is an even broader public—the cosmic public.
[Speaker A] But what you’re basically arguing is that the public is bigger than the private.
[Rabbi Michael Abraham] You could put it that way.
[Speaker A] Right, yes.
[Rabbi Michael Abraham] So I’ll formulate it, I’ll formulate it in certain ways.
[Speaker A] Jewish law doesn’t speak about the public? I mean, Jewish law doesn’t provide solutions for…
[Rabbi Michael Abraham] No, it speaks about the public in certain cases. The claim is that the laws of war are not derived from Jewish law.
[Speaker A] And what about what he just spoke about now, hostages in a bank on Bograshov Street? Is that also derived from what, from some set of laws? Nothing. Jewish law doesn’t talk about that?
[Rabbi Michael Abraham] No, what do you mean it doesn’t talk about it? You may find some halakhic decisor who talks about it, and then he’ll give you his reasoning there. So here I am now giving you my reasoning, and in my reasoning what determines it is the law.
[Speaker A] Meaning the police don’t go to the Chief Rabbi to ask him what to do in such a case. Right. Okay.
[Speaker D] Is this unrelated to Jewish law? With fields, taxes, and so on? Isn’t it derived from the laws of the king? That’s what they said—“the law of the kingdom is law”
[Rabbi Michael Abraham] “the law of the kingdom is law.”
[Speaker D] and “the king may breach fences,” and so on.
[Rabbi Michael Abraham] Of course, but where will you find the laws of the king? Where will you find the laws of the king? You’ll find the laws of the king in the Derashot HaRan, sermon 11, where he explains that it is not connected to Jewish law. That the king basically does things through an alternative mechanism. Therefore in the end some of these things entered Jewish law, but they entered it the way that if today the Talmud or the Shulchan Arukh were being written, then maybe today, I don’t know, the Geneva Convention would enter the book of Jewish law. Now that’s the Jewish law. Fine—but that’s Jewish law only because Jewish law says that Geneva determines it, and not the…
[Speaker F] So what is a halakhic state?
[Rabbi Michael Abraham] That’s a good question. At the moment, a halakhic state is a state in which, even formally, the one in power wears a frock coat. As opposed to today, where that happens informally. Fine, that’s all. Apart from that, the legal system is more or less the same legal system we have today.
[Speaker A] You’re saying that in practice there’s no such thing in a great many planes?
[Rabbi Michael Abraham] I’m saying that in terms of content, a halakhic state would look very similar to what happens today. The legal structure would look very similar.
[Speaker A] Meaning, in tort law, indirect causation would not be exempt. Right.
[Rabbi Michael Abraham] If you’re counting on that, don’t. Okay, in any event, once the responsibility is on us, believe me, they’ll do what needs to be done. Today we can sit in the opposition; there’s someone doing the work for us. We—that is, the religious people, with the rabbinic establishment or whatever. So we can say, no, indirect causation is such-and-such, but you can go to court and get compensation for the indirect causation, so everything is fine. If you have no way out, then in the religious court you’ll be able to recover for indirect causation. So be sure of it.
[Speaker A] That’s what Bennett understands. Maybe.
[Rabbi Michael Abraham] In any event, I’m not sure he understands these things all that well, but that’s a different discussion. Anyway, the claim is that Rabbi Yisraeli’s claim is that in order to deal with the laws of war, you move to the plane of public law. But understand well what that means. The plane of public law means you leave Jewish law. That is basically what this means. Now you can write it into the Shulchan Arukh in Rashi script, that’s not important. Since it will be drawn from outside sources, only this is what Jewish law really says to do, so that is the Jewish law. So formally you can call it Jewish law, but basically you are acting here according to rules whose source is outside Jewish law, and Jewish law recognizes that. Like “the law of the kingdom is law.” Is “the law of the kingdom is law” Jewish law or not? Yes, Jewish law says “the law of the kingdom is law.” But when I want to check what “the law of the kingdom is law” says, I go to the state’s law books, not to the Shulchan Arukh. The Shulchan Arukh says that there is such a rule called “the law of the kingdom is law.” Okay? So something similar happens here. Now I want to make a different claim. Again, I disagree. I think it is not correct that one needs to reach the point of moving to the laws of war. I claim that the private laws can be applied here. That they can and should be applied here—but I apply the private laws when the pieces on the board are collectives and not private individuals. And that makes a difference. Okay? Meaning, these are different things. The source for this matter, the source for this matter—there is Maharal, the source, the source—if he hadn’t written it, I would have said it. Maharal, in the Torah portion of Vayishlach, speaks there about Simeon and Levi. And he says there—the medieval authorities (Rishonim) discuss this—how and why did they kill all the people of the city there? I mean, Shechem sinned with Dinah, so kill him. A Noahide is also executed for any transgression, so fine, let’s say you kill him—but why are you killing all the residents of the city there? So Maimonides asks this question in the Laws of Kings, and Maimonides argues that they killed the residents of the city because they did not fulfill the commandment of laws. They did not fulfill the commandment of laws. The commandment of laws means that there is an obligation on the public to create an effective legal system, with courts, with law—that is, to establish justice. Okay? And if the public does not do this, then it has nullified the commandment of laws. This is one of the seven Noahide commandments. Says Maimonides: and since a Noahide is executed for any transgression—not only for certain transgressions as with Israel, but for any transgression he is executed, and this itself is also a novelty, even though it is the neglect of a positive commandment, which is a great novelty—so the claim is that therefore they were liable. They were killed justly. I spoke about this once—I don’t remember anymore—when we once talked about public and individual in general? I don’t remember anymore. What did the… exactly. So the question always comes up, and I’ll ask it now. The question always comes up: not even children—what could the ordinary resident of the city of Shechem have done? There’s a king in the state, obviously not really a democracy, I assume. If you tweeted something he’d cut your head off. What can you do in such a situation? So what responsibility does a citizen bear when his king sins? How can you say that they all failed to fulfill the commandment of laws and therefore they all deserve death? It seems to me that Nachmanides even comments on this against Maimonides. And therefore he said…
[Speaker A] Maimonides would say that he should have fled. What? Maimonides would say he should have fled.
[Rabbi Michael Abraham] Who is “he”?
[Speaker A] The citizen. The citizen.
[Rabbi Michael Abraham] Fine, but that still would not solve the problem. If he no longer continues to accept the state? Just because he lowers his head he takes part in the responsibility—that…
[Speaker A] If everyone had fled from him…
[Rabbi Michael Abraham] If everyone had fled from him. Okay. Come on. That’s already a more important point. Meaning, the claim—I want to do this in a variation. For some reason I remember that I once talked about this. I once read a biography of Stalin. There are several. And it was really fascinating, by some Russian filmmaker—I don’t remember, Dzerzhinsky, something not… Dzerzhinsky is the square in Moscow, right? He was the head of their GPU, I think, or something like that. I don’t remember what his name was, never mind. Some Russian filmmaker. And it was a book that really shook me. Why? You see one man ruling over an empire with an immense territory, an enormous number of residents, I don’t know, a hundred, a hundred and fifty million residents at the time, I don’t know how many they had, something like that. When it’s one man against everyone. Everyone. If only it were that simple—it’s not clear at all. The point, I mean, what happened there was that basically everyone who knew the situation—there may have been others who adored him, but they didn’t know—they didn’t know. So everyone who knew him wanted to kill him. That’s the point. And he also feared that and was paranoid, and therefore he killed everyone around him. But one man standing against an empire that the United States can’t cope with, and he dies in bed after forty years in which he was the Russian tsar. You know they say the Russians can’t manage without a tsar. When they killed the tsar, they put Stalin in his place and he became the tsar. I mean now it’s Putin. They can’t manage without a tsar. A narrow and hostile man, so to speak. So this amazing thing, where one man uses a state apparatus, a mechanism of state rule, in order by himself to overcome the strongest army in the world, with a hundred and fifty million people. Alone. Why? Because no one can talk to the next person and say: come on, let’s make a coalition together to kill Stalin. Who knows—maybe the other guy will inform on you and then they’ll kill you. You’re afraid even of your own shadow. So this imposition of fear and the state mechanisms basically allow one individual, two hands and two legs, one individual, to hold the Soviet Union by the throat. I don’t want to say by somewhere else. To hold the Soviet Union by the throat, with their whole army, with a hundred and fifty million people, and that’s it, and in the end die in bed. There are conspiracy theories about what happened there at the end, but the simple view is that he died in bed. In his sleep. Yes. So in the end my conclusion was—I’m going back to Maharal—yes? What responsibility rests on the ordinary Soviet citizen, somewhere in collective farm 519 in the far east, I don’t know where, for what Stalin does? Stalin goes out to some war, I don’t know, destroys a country, I don’t know exactly what. You fight the Russians, you’re going to harm people. Now all those people would want to kill Stalin more than you would. Okay? What responsibility do they have? The answer, I think, is what you said, or the corrections others said afterward: that were it not for each one of the Russians individually, in the end there wouldn’t be a Stalin either. Now true, each one individually can’t do anything. If one such individual rose up, Stalin would eliminate him on the spot. But on the other hand, it is clear that this one plus this one plus this one ultimately is what creates this phenomenon called Stalin. Meaning, without their agreement—and again, I don’t think that if I were in their place I would have been any braver. The question is not whether I’m criticizing them because I would have done it better than they did. Rather, in the end, there’s no getting around it: you are the ones backing him, even though each one individually has no possibility. It’s like what they say here, from the individual to the collective. Meaning, there is something there, even though you cannot blame any individual on his own, but if you exempt each of the individuals, then in the end the collective is exempt too.
[Speaker A] Meaning here it’s Stalin against Hitler.
[Rabbi Michael Abraham] Exactly. Here you have to move in the discussion.
[Speaker A] If you hadn’t voted, if you hadn’t voted, the result would have been exactly the same. Exactly.
[Rabbi Michael Abraham] So the point is that you have to understand that something happens here in the move from a collection of individuals to a public or collective composed of those individuals, in the way that you judge the collection of individuals as a corporate entity. Meaning, you are now not relating to each individual. Each individual by himself—I cannot blame him if I were in his place—but on the other hand, you cannot exempt him and him and him and him, and in the end everyone is exempt. So who created the corporate problem? And the corporate problem was created by the contribution of each individual, while each individual by himself cannot do anything.
[Speaker A] Okay, so am I liable to death?
[Rabbi Michael Abraham] To the extent that he is, to the extent that this is needed in order to cope with it. Because otherwise there’s no brake on the car—not because he isn’t liable to death, but because there you simply need it in order for it to stop. Or—I’ll get to that yet, I’ll get to that yet.
[Speaker A] This whole discussion rests on the assumption that what those two fellows did was correct. Yes, that’s the assumption of Maimonides and Nachmanides.
[Rabbi Michael Abraham] Right. But if you answer him, you can certainly argue.
[Speaker A] “Do not wrong,” right.
[Rabbi Michael Abraham] Right. And not only that—when our forefather Jacob rebukes them, he says, “You have troubled me, making me odious among the inhabitants of the land.” It doesn’t seem that he has criticism of the act itself; it seems he has political considerations. Meaning, everyone will hate us and then eliminate us, but he has no corporate problem with it.
[Speaker A] That’s a political consideration.
[Rabbi Michael Abraham] He has a corporate consideration—a corporate one. What corporate consideration? He said, “You have troubled me”—that’s a self-interested consideration.
[Speaker A] He says, “Weapons of violence are their wares.”
[Rabbi Michael Abraham] Yes, the question is what is meant by “weapons of violence.” It could mean a kind of uncontrolled and irrational violence—not immoral, but that you are incapable of thinking; your violence bursts out without your making the calculation, I don’t know. Fine, I’m saying one can argue. But in the texts themselves one can definitely also find the conception that there is no clear fact here. Maimonides and Nachmanides discuss it—or Maimonides at least discusses this matter—and also Maharal, as though this was a reasonable step to take.
[Speaker G] What? There was a court of Simeon and Levi that they set up.
[Rabbi Michael Abraham] Their claim, their claim, is that this is, as it were, in the category of a court. Again, how do you apply this? They are two brothers, this whole state is twelve brothers and their father. So what is this state or this nation? There was of course some kind of toy model there for looking at this as a public. But still, Maimonides and also Maharal see this as some sort of first sprouting of the concept of a Jewish public. Meaning, that’s where it began. Among the Noahides too there is no presumption that most of the community is under the sword, and it’s not certain they are brothers, so everything is fine.
[Speaker G] Fine, in any case this is before they entered the Land, meaning according to Nachmanides this is before Jacob entered the Land, so he was still permitted to have two sisters.
[Rabbi Michael Abraham] Yes, but there too there are two answers. Some say that it was only by divine command, not because in the Land they really become Jews, but because by divine command there it was so. Okay, in any event, what I want to show through this matter is that when you are facing a public, you can raise a consideration that with respect to each private individual by himself there really doesn’t seem to be justification to harm him. He isn’t guilty, he isn’t responsible, he can’t do anything. But when you look at him as part of a public, suddenly some new phase appears. Suddenly you say, wait a second—but this collection of private individuals, each of whom is guilty of nothing, is ultimately doing this whole thing to us. So you can’t exempt everyone from responsibility. Meaning, you exempt each one individually from responsibility, and in the end it comes out that no one is responsible.
[Speaker F] And that’s exactly it—you’re not being asked to exempt all of them; you’re being asked to use tweezers and harm the ones doing the harming. No, so I
[Rabbi Michael Abraham] am saying, where you really can do it with tweezers, do it. The dilemma is always when you can’t do it with tweezers.
[Speaker F] Your argument is this: since each of them is innocent on the private level, in the end I exempt the whole… But that’s not the case. We’re saying some of them are guilty, some are not; I just don’t know how to separate them.
[Rabbi Michael Abraham] And therefore the claim that I’ll exempt all of them doesn’t exist. No, it does exist. What if I can’t exempt—if I can’t do it with tweezers, then now I have two options.
[Speaker F] Exactly the Jenin dilemma. I can’t do it with tweezers right now, so what do I do?
[Rabbi Michael Abraham] Morality permits me to harm… I know there are guilty people. So I’m saying, it doesn’t matter—in the end, because they are constructed in such a way that I cannot determine with tweezers who is guilty and who is not, I now see before me a collective that threatens me. What is taking shape threatens me, and I need to act.
[Speaker F] And if I can? I can do it with tweezers, but it will come at the cost of human life?
[Rabbi Michael Abraham] No, that means you can’t, because it’s a threat. Right. Again, then you’re already entering the gray areas. If you say it will come at the cost of human life, and your goal is to protect human life, then you can’t. You can ask what the goal of the war is—a good question. It may be that the price of a few soldiers dying does not count as failing to meet the goal of the war. Fine, those are already the gray areas. Right now I’m speaking about the iconic question.
[Speaker D] What Maimonides and Maharal are talking about is collective responsibility. Right. On the other hand, you seem to be talking about mixing involved and uninvolved people. No, I do claim that there is the child who holds—there is collective responsibility.
[Rabbi Michael Abraham] You do claim that? I do. So I’ll explain it. You know what? I’ll already say it here because I see that the clock is already against us. What I’m claiming is the following. When I stand before a collective—I’m jumping to the end, and then maybe next time I’ll do it in a more orderly way—when I stand before a public and we’re talking about war, the problem is not the laws of war. Rather, the factor threatening me is the public, not the private individuals. And even if there is a part of the public that is the part holding the weapons—fine, because that is their internal division of labor. And since that is so, in the end the whole public—if, say, according to the earlier conception I mentioned, they are not guilty, and so what? Then this belongs on the side of the equation of “a person does not save himself through another person’s life.” You cannot kill someone who is not threatening you, a third party, in order to save yourself. Right? Am I saying that they are all pursuers? Then in fact he himself is not a third party; he is part of the involved factor. So we have returned to the law of the pursuer; I moved to the other side of the equation. So the claim basically is that once I am facing a collective, there is no need to move to the laws of war. Rather, the laws of the private individual, when they are applied to a collective, are what say this. There is no need to do anything else.
[Speaker F] What defines the perimeter of the collective?
[Rabbi Michael Abraham] רגע, we’ll talk about this a bit, as much as possible, because of course it’s not clear-cut. But I just want to explain what I’m driving at, in order to close the picture for now. So my claim, basically, is that there’s no need to get to Rabbi Yisraeli’s laws of war. What’s needed is to apply the laws of a private individual when the players on the field are collective actors. And that’s different. For example: let’s say the Dutch public is threatening me as a private individual. I’m not a state, I don’t have a representative at the UN, I don’t know how to declare war, and I’m also not authorized to declare war under international law. But the Dutch public is coming out against me to eliminate me. Fine? Now there are, I don’t know, some soldiers there who are the ones threatening me, and everyone else are civilians, Jenin. Now the question is whether to bomb them from above, or am I forbidden to harm innocent people? According to Rabbi Yisraeli, I need to die. Because these are private-individual laws. I’m not an entity that can declare war under international law. I need to die. I argue that no, I don’t. Even a private individual is allowed to do this when the factor threatening him is a collective factor. Since what stands opposite me is a collective, therefore everyone has the status of a pursuer, and not of an uninvolved party. And then we’ve moved from this side of the equation of saving oneself at the cost of another’s life to the law of a pursuer. Now that doesn’t mean it’s always permitted to kill everyone, and that everyone is a pursuer — absolutely not.
[Speaker A] But, with God’s help, we’ll talk about that next week.