Dilemmas in Matters of Human Life – Lesson 12
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
- From private law to war dilemmas and harming non-combatants
- Rabbi Israeli, the Qibya operation, and the laws of war as international practice
- Whether there is an ordered body of laws of war in Jewish law, and what changing historical periods mean
- Critique of the “rabbit out of a hat” move and a proposed intermediate stage: public law instead of the laws of war
- What is a public: an institutional, not numerical, definition
- Two metaphysical conceptions of the public and their practical implications
- “A collective pursuer”: moving from saving oneself at another’s expense to the law of a pursuer by means of the concept of the public
- Limits of the permission even within the law of a pursuer: “if he can save him by injuring one of his limbs” and the need for justification
- Practical questions: someone who does not belong to the threatening collective, minors, and tourists
- A halakhic middle position: a person wears the hats of both individual and public
- Maimonides in the laws of repentance: the judgment of an individual, a city, a state, and the world
- The Rosh and communal bans: the public as a binding entity over time
- “The public does not die”: Tosafot, impurity is permitted for the public, and the Sinai oath
- Limits on subordinating the individual to the public: volunteering at the Mitla Pass, a “suicide order,” and “do not fear any man”
- Pappos and Lulianus, the Jerusalem Talmud, and the possibility of self-sacrifice to save the public
- The Maharal on Simeon and Levi: “two nations,” laws of war, and revenge and deterrence
Summary
General Overview
The speaker shifts the discussion from private dilemmas of saving life to public dilemmas in wartime contexts, focusing on the question whether it is permissible to harm non-combatants in order to strike those who pose a threat. He lays out the spectrum between “saving oneself at another’s expense,” which forbids killing someone who is not causing the threat, and the “law of a pursuer,” which permits killing the one who created the threat, and argues that the key question is whether the threatening party is identified as an individual or as a public. He cites Rabbi Israeli and Rabbi Sheviv, who ground some of these rulings in the laws of war and international practice, but proposes an alternative: bringing the concept of “the public” into private law itself changes the halakhic classification without needing to invoke the vague category of “laws of war.” Throughout, he presents a halakhic middle position between extreme collectivism and extreme individualism, and shows how the same person is judged both as an individual and as part of a collective, and what follows from that for permission, prohibition, and the limits of killing.
From private law to war dilemmas and harming non-combatants
The speaker presents a situation in which a soldier or commander must kill a terrorist threatening the public, but there is concern or certainty that non-combatants will also be harmed. He links this to the familiar dilemma between a case where it is permitted and required to kill the threatening party under the law of a pursuer, and a case where it is forbidden to kill someone uninvolved even in order to save oneself, because “a person may not save himself at another’s expense,” which in his presentation is a case of “be killed rather than transgress.” He explains that the decisive distinction is whether the killing targets the one who created the threat or a third party who is not involved, and stresses that if the non-combatant is killed in order to save the soldier or the public, that would seem forbidden under the principles of private law.
Rabbi Israeli, the Qibya operation, and the laws of war as international practice
The speaker cites Rabbi Israeli’s well-known responsum on the Qibya operation, where the initial conclusion under private law is that it is forbidden to harm non-combatants in order to save oneself. He presents Rabbi Israeli’s claim that in war “the whole thing works differently,” and that there are “laws of war” different from the laws governing a private individual, to the point that a private person in such a case “must die” and may not harm a non-combatant. He describes an understanding according to which the laws of war are drawn from agreements among nations and from international law, and mentions Rabbi Sheviv, who wrote in Tehumin that the laws of war are determined by the consent of nations and therefore one must examine international practice, including considerations of proportionality. He adds criticism of international law as a power-based and political framework rather than a “closed set of rules,” but still presents it as the framework within which, according to that approach, these questions are discussed.
Whether there is an ordered body of laws of war in Jewish law, and what changing historical periods mean
The speaker argues that Jewish law does not contain an ordered and comprehensive system dealing with warfare in the way law books present other topics, among other reasons because it was barely discussed during the periods when those books were written. He says that even if one finds evidence in the Hebrew Bible (Tanakh) or in ancient practices of war, halakhic decisors will argue that this reflects “the international law of that time” and therefore is not binding today when the accepted framework has changed. He gives the example of the war against Amalek through Maimonides, who writes that “they are offered peace,” and if they accept, “then they are not killed,” and notes that historical reality and collective identity change to the point that one can ask whether this is even the same Egypt as in the days of Ramses.
Critique of the “rabbit out of a hat” move and a proposed intermediate stage: public law instead of the laws of war
The speaker says that “laws of war” sometimes function as a declaration that exempts one from giving reasons: “This is the law of war, so everything is fine,” without showing any orderly source. He agrees that war has different rules, but argues that one can stop “one step earlier” and reach a less radical solution by means of “public law” within Jewish law itself, without relying on amorphous concepts or on international law. He says the halakhic shift comes from recognizing that the parties “on the chessboard” are publics rather than individuals, and that simply bringing in the concept of the public changes the halakhic implications even within the framework of private law.
What is a public: an institutional, not numerical, definition
The speaker rejects a quantitative definition of a public such as “ten people,” and argues that a public is defined institutionally and socially, as an organized community, not as a random gathering. He says there can be “a thousand people who are not a public,” and by contrast “a hundred people who are a public,” and cites the Talmudic discussion of village, city, and metropolis in tractate Sanhedrin to illustrate that numbers alone do not capture the meaning. He describes the public as an entity of social organization and institutional continuity, not merely a collection of people who happen to be together at the same moment.
Two metaphysical conceptions of the public and their practical implications
The speaker presents a collectivist conception, which he calls “fascist,” in which the public is the primary entity and individuals are like limbs whose role is to serve the collective, to the point that one can legitimately “sacrifice” an individual in order to save the public, as in a “surgery” that sacrifices a limb. He presents an individualist conception according to which the public is only a legal fiction and the fundamental reality is individuals who make agreements, and therefore “the public is supposed to serve the individual,” not the other way around. He explains that the answer to whether it is permissible to harm non-combatants changes depending on the conception: in the collectivist view the enemy is the public, so the way one thinks about involvement and non-involvement looks different, whereas in the individualist view one must ask who is endangering whom within the framework of “a person may not save himself at another’s expense.”
“A collective pursuer”: moving from saving oneself at another’s expense to the law of a pursuer by means of the concept of the public
The speaker argues that if the party facing you is identified as a public rather than as a collection of individuals, then all members of that public may be given “the status of a pursuer,” because the collective is the threatening agent. He explains that from an individualist perspective, killing someone who is not threatening you is “saving oneself at another’s expense” and is forbidden, but from a collectivist perspective the threat is attributed to the public as a whole, so the classification moves to the pole of a pursuer, which permits killing in order to save oneself. He emphasizes that this model makes it possible to rule “in a very orderly way” on the basis of the principles already discussed in the context of saving life, without needing a declaration of war or an international framework.
Limits of the permission even within the law of a pursuer: “if he can save him by injuring one of his limbs” and the need for justification
The speaker says that even if the law of a pursuer applies, there is no blanket permission to kill “just like that,” but only when the killing is necessary for rescue. He mentions the rule that “if I can save him by injuring one of his limbs, I may not kill him,” and applies this even when one sees the collective as a pursuer: if it is possible to strike only those who are threatening you without harming others, there is no permission to harm the others. He rejects the conclusion of “kill whoever you can,” and argues that even with a pursuer one needs a concrete justification of rescue, not just general membership in the collective. He notes that in the law of a pursuer the definition of “they stopped shooting” is not momentary, but depends on the substantive definition of the end of the threat, and that in the laws of war this parallels a ceasefire declaration rather than a momentary pause in shooting.
Practical questions: someone who does not belong to the threatening collective, minors, and tourists
The speaker raises a case in which foreign tourists or journalists are in the area of the terrorists, and even notes that it could also be a Jew, and argues that there is no basis here to distinguish between Jew and non-Jew, because “you are forbidden to kill a non-Jew in order to save yourself,” and Rabbi Israeli himself writes that there is no difference. He says that within the framework of the laws of war, accepted practice may permit action even at the cost of endangering foreigners who are in the area, but within the model of private law enriched by the concept of the public, “it straightforwardly seems forbidden” to kill someone who does not belong to the pursuing collective. He adds a possible line of reasoning according to which, when one shoots at a pursuer and the harm to a non-combatant is a secondary result of a permitted action against the pursuer, there may be room to discuss the matter differently, though he does not give a sharp ruling on that point.
A halakhic middle position: a person wears the hats of both individual and public
The speaker argues that Jewish law contains a middle position that neither erases the individual in favor of the public nor erases the public in favor of the individual, but sees a person as wearing at least “two hats”: an individual and a limb of a collective. He stresses that one can be “righteous on the individual plane” but “terrible” on the public plane, and vice versa, because public law is a distinct legal category. He broadens the point by saying that the circles can expand from community to state to world, with a hierarchy among those circles, and suggests that ecological matters can even constitute “a halakhic obligation,” because a person also belongs to the circle of “citizens of the world.”
Maimonides in the laws of repentance: the judgment of an individual, a city, a state, and the world
The speaker cites Maimonides in the laws of repentance, who describes how on Rosh Hashanah each person is judged as righteous, intermediate, or wicked, and afterward the city, the state, and the whole world are judged. He quotes the commentators’ question: what is left to judge about the city after all the individuals have already been judged? He answers that Maimonides reflects judgment of a person in all his hats: as a private individual and as part of a community and a state. He argues that this shows that the judgment of the collective is not mechanically derived merely by summing up the judgments of individuals, but by evaluating how a person functions as part of the public framework.
The Rosh and communal bans: the public as a binding entity over time
The speaker cites a responsum of the Rosh, brought by the Rema in Yoreh De’ah in the laws of vows, according to which one person’s vow cannot bind another person, and asks how communal bans can bind members of the community and even future generations. He explains that according to the Rosh, the one bound by the ban is not the collection of individuals but the public as a collective body, and individuals are obligated by virtue of belonging to that public. He compares this to the law of a state, which also binds later generations because the bound entity is the continuing collective, not the individual people who have since been replaced.
“The public does not die”: Tosafot, impurity is permitted for the public, and the Sinai oath
The speaker presents the principle that “the public does not die,” and connects it to the idea that “impurity is permitted for the public,” because the concept of death does not apply to a public. He cites Tosafot in Me’ilah 9b regarding a communal sin-offering, which does not have the rule of “its owners died,” and quotes “one generation goes and another generation comes, but the earth stands forever” as an explanation of the continuity of the public. He also uses this to explain the idea that one is “already sworn from Mount Sinai,” not as a private ancestral oath that binds children, but as the public’s oath upon itself, and notes that at the beginning of Parashat Nitzavim there is a shift from singular to plural language.
Limits on subordinating the individual to the public: volunteering at the Mitla Pass, a “suicide order,” and “do not fear any man”
The speaker cites the story of Yehuda Kendror at the Mitla Pass, where Raful asked for a volunteer to drive a jeep in order to expose the source of enemy fire, and emphasizes that this had to be voluntary and could not be ordered, because a commander does not issue “a suicide order.” He uses this to argue that even when the public interest is absolutely clear, one still cannot erase the private individual and see him as merely a limb, and the public may not impose certain sacrifice. He brings the verse “do not fear any man” as a command to an appointed judge not to withdraw from judgment out of fear of violent litigants, and presents a dispute as to how far this goes when there is danger to life, explaining that possible danger undertaken for the sake of maintaining public institutions functions like a kind of public saving of life. He concludes that Jewish law strikes a balance: in cases of possible danger to life, the public may demand dangerous functioning, similar to military service, but where the danger to life is certain, it cannot compel the complete erasure of the individual.
Pappos and Lulianus, the Jerusalem Talmud, and the possibility of self-sacrifice to save the public
The speaker mentions the “martyrs of Lod,” Pappos and Lulianus, who “gave themselves up to death so that all the Jews would not be killed,” and notes that halakhic decisors discuss how this is possible in light of the Jerusalem Talmud in Terumot, according to which it is permitted, and perhaps even obligatory, to enter possible danger in order to save another. He says that most decisors reject the Jerusalem Talmud on this point, but that some, such as Tzitz Eliezer, argue that for the sake of saving the public one may give up one’s life even if there is no obligation to do so, unlike the general rule that a person may not volunteer to die where there is no permission. He also mentions that Esther is cited by Rabbi Zilberstein as an example of self-sacrifice in a public context.
The Maharal on Simeon and Levi: “two nations,” laws of war, and revenge and deterrence
The speaker quotes the Maharal in Gur Aryeh on the verse “And the sons of Jacob answered… deceitfully… because he had defiled Dinah their sister,” and brings Rashi’s explanation that “deceitfully” means “wisely,” because of the background of Dinah’s defilement. He cites the Maharal’s question: “If Shechem sinned, what did the whole city do wrong that they should be killed?” He brings Maimonides’ answer that the descendants of Noah are commanded concerning legal systems, and the people of Shechem were liable to death because they did not judge Shechem, and then the Maharal’s astonishment at how they could have judged “the son of the prince of the land” under coercion. He presents the Maharal’s main innovation: that this was a case of “two nations,” and “we will become one people” was said only later, and therefore the sons of Jacob were permitted “to wage war as is the law of one nation that comes to fight another nation,” and in a case where “they broke through against them to commit an outrage,” it is permitted to take revenge on the nation even if only one person acted, “since he is part of the people.” He connects this to wars such as “harass the Midianites,” in which there is no distinction within the nation between the guilty and the innocent, and emphasizes that the Maharal attributes this to laws of war that include revenge and deterrence as long-term public considerations, something a private individual is not permitted to do.
Full Transcript
[Rabbi Michael Abraham] We’re starting to get close to the end of this series. Yes, I actually noticed yesterday that it’s relatively long—I hadn’t even paid attention. Last time we began dealing with the transition from the individual to the public, or from dilemmas of saving life in medical contexts and security contexts to dilemmas in contexts of war, which is true in the public sense. And the question I touched on was the question of harming innocents—that is, non-combatants, innocents, whatever you want to call it. The question is: if I need to strike a terrorist who threatens me, or threatens the public on whose behalf I’m there—I’m the soldier or the commander—and in order to kill him there’s a concern, or even certainty, that I’ll also harm uninvolved people, is that permitted or forbidden? I said that on the face of it, this too joins the list of problems that lie on the spectrum between saving oneself at another’s expense and the law of a pursuer, because once again the two principles that have accompanied us from the start are two principles that apparently look very similar, but the difference between them is what determines all these dilemmas. In one situation, if someone threatens someone else, it is permitted and required to kill the threatening party—that’s the law of a pursuer. And saving oneself at another’s expense is when I can kill someone in order to save myself, and I am forbidden to kill him even if I’ll pay for that with my life, because a person may not save himself at another’s expense; that is a case of “be killed rather than transgress,” certainly. And I said that according to Rashi at least, and other medieval authorities (Rishonim) as well, that applies even to property. In any case, what is the difference between those two situations? The question is: who is that person whom I need to kill in order to save myself? Is the causal agent involved—that is, is he the one threatening me or someone else, it doesn’t matter, but he is the one who created the threat? Then I may kill him, because he created the threat. But if it’s someone uninvolved, such that if I kill him I’ll be saved—that I may not do. I may not kill an uninvolved person in order to save myself, and I’m already speaking in the language of the uninvolved because you immediately see the implication for our situation. Because in our situation, on the face of it, it seems forbidden. Why? Because if I harm those innocents or non-combatants, then essentially I killed them in order to save myself, and a person may not kill another in order to save himself at another’s expense. In other words, I may not kill someone who is not threatening me if he is a third party, in order to save myself. So the fact that together with him I’m also killing the one who is threatening me shouldn’t help in any way. He shouldn’t have to pay with his life in order to save my life, and therefore in principle this is forbidden. But I brought this in the name of Rabbi Israeli, in a responsum, his very well-known responsum on the Qibya operation, and there he does indeed conclude in the first stage that this is in fact forbidden—it is forbidden for me to harm non-combatants in order to save myself. But he argues that there are laws of war. And in the laws of war, things work differently than in the laws applying to a private person. In the laws applying to a private person, his conclusion is that this is forbidden—that’s his conclusion there. In other words, if a private individual is in such a situation, he must die; he may not harm someone uninvolved. But if this is war, then in war there are different laws. Where do those laws come from? So I said that I don’t think he spells it out there all that much, at least as far as I remember, because it’s a responsum I saw a very long time ago, but it seems to me that in the end the laws of war are drawn from conventions in the world regarding warfare, from international law if you like, from international custom. I mentioned Rabbi Sheviv, who passed away not long ago, who wrote an article about this in Tehumin, and he too says that in the end the laws of war are laws determined by the agreement of nations, by what is accepted in the world, by international law, and so now one has to turn there and see what exactly international practice says in such a situation. And I think that in some cases there it is permitted to take the risk of harm to non-combatants—again, depending on proportionality and all sorts of arguments like that, where I never really understand where exactly the line is drawn.
[Speaker C] But does Jewish law—does Jewish law remove war from the whole realm of discussion? What?
[Rabbi Michael Abraham] Yes, yes, that’s the claim.
[Speaker C] But where does Jewish law take it out?
[Rabbi Michael Abraham] Where does Jewish law take it out? Why? Because he said that… reasoning, yes. He said no. Again, there are laws of war that appear in the Hebrew Bible (Tanakh), as ways wars were conducted or things of that sort. It seems to me that private individuals would not be given legitimacy to do various things that are done on the public plane, and therefore I think that’s a reasonable conclusion overall.
[Speaker C] If, say, there is someone who is an Amalekite, and according to the Torah it is permitted to kill him?
[Rabbi Michael Abraham] Different question—whether wiping out Amalek is a commandment incumbent on a private person or a commandment incumbent on the public. I don’t know; that’s a dispute. In other words, there isn’t a good answer to that. By the way, even with wiping out Amalek, the question… we’d have to get into a lot of details here, because not every Amalekite must be killed—generally speaking, not even by the public. Maimonides writes, after all, that in a war against Amalek, they are offered peace, and if they accept, then they are not killed. Even in war.
[Speaker C] And that’s actual Amalek?
[Rabbi Michael Abraham] Actual Amalek, yes. Well, let’s leave it—some descendants of Haman studied Torah in Bnei Brak, right? That’s what it says. There are those who say that to this day they’re still studying Torah in Bnei Brak.
[Speaker C] But in any case, the accepted custom among the nations—if you’re fighting a nation that has no interest at all in those customs, if it behaves differently from everyone else…
[Rabbi Michael Abraham] Fine, then maybe not. We’ll ask international law about that too. International law is also supposed to say what to do in such a case, in principle. I’ll say again: we don’t need to be naïve. International law is a matter of power, and it’s a matter of your international standing. It’s not as though there is some closed set of rules that tells you what to do. Even the experts say that; it’s not just a layman’s view. There is a lot of custom, a lot of politics within international law. Fine, but in principle that is the framework within which one is supposed to discuss these issues.
[Speaker D] Is there any orderly body of material on matters of war in Jewish law?
[Rabbi Michael Abraham] So that’s exactly what I’m saying. The claim, essentially, is no. And therefore even if… even if you find, say, evidence from the Hebrew Bible (Tanakh) or things like that—not from halakhic literature, because usually it won’t be in books of Jewish law, since they hardly dealt with it in the period when those books were written—but even if you find something like that, the halakhic decisors will tell you that it isn’t relevant today, because it reflects the international law of that time, insofar as such a thing existed. And today, since that has changed, that is what determines things. In other words, even if you find some proof, someone who follows that approach will tell you it doesn’t matter—that’s not what will decide the issue. The point I began discussing at the end of the previous session is that I think we don’t need to get to what Rabbi Israeli said. In other words, I agree that the laws of war are different rules, but I think here we can stop one step earlier. That is, there’s no need to get to the laws of war, because honestly the laws of war—as you are rightly asking here—are some kind of rabbit that people always pull out of a hat, and then you don’t need to justify anything. Listen, it’s the laws of war, everything is fine. What laws of war? Where? Show me where the laws of war say that. Right? That’s basically what stood behind a lot of the questions that came up just now. “Laws of war” becomes: look, I have a feeling that here I can’t simply apply the laws of a private person, so I say: ah, well then, this is the law of war. That’s it. Now I’m exempt from giving reasons, and I can do whatever I want. There’s a sense that this is still problematic, and maybe not characteristic of Jewish law, but… again, as I said before, I don’t agree. In principle, when there is war, it really does operate in that kind of way. On that, I agree. I’m only saying that before you get there, there are intermediate stages. And that’s what I want to talk about here. I started a bit, but now I want to spell it out a little more. I think the claim—the more modest, less radical claim that can be applied in these situations—is public law, not the laws of war. What’s the difference between them? If I apply private law, the law of an individual person, but I take into account the fact that the people or agents moving on the chessboard—the people on the ground—are publics and not private individuals, the implications will change without needing to reach the laws of war. In other words, I can build this into Jewish law. I don’t need to get to international law and all sorts of amorphous concepts like that. I can show this from within Jewish law itself. As long as I bring into the game the joker—and here too some joker enters instead of the previous rabbit—I bring into the game the fact that we’re dealing here with a public and not a private individual. Where will that make a difference? I’m jumping straight to the end…
[Speaker B] What’s the definition of a public?
[Rabbi Michael Abraham] Ten people? Twenty? No, no—ten people is not a public. Ten people is a collection of people. A public is defined institutionally; it’s not a number. In other words, if it’s defined as an organized public, a community is a public. Ten people is not a public. Maybe for the purpose of prayer, if they gather at one moment, they are considered a public. But a public is some kind of social definition—again, I don’t know exactly how to put my finger on it—but something organized, something that is some kind of social institution. Not just a gathering of people. There can be a thousand people who are not a public, and there can be a hundred people who are. The Talmud speaks about villages and cities and metropolises regarding courts in tractate Sanhedrin, and there it says that ten is a village, a hundred is a city I think, and a metropolis is something—I don’t know—a thousand or maybe even less, really ridiculous numbers. I don’t remember the exact figures here; you can look there. So what difference does bringing the concept of the public into this field make? The claim is essentially—and I don’t remember how much I stressed this last time, but we discussed it in the past, so I’ll just mention it briefly; this is really only a reminder of what we discussed before, I don’t remember how much I went into it last time. The question is how we relate to the public. In other words, there are two conceptions—let’s call them metaphysical-philosophical conceptions—with legal and practical implications, for how we relate to the public. Do we see the public—and this is really connected to your question—do we see the public as a collection of individual people? In other words, there is no such thing as a public; it’s some kind of legal fiction, but really there are only people, not publics—the public is just a label. Or do we relate to the public as some kind of entity that exists ontologically? That is, there is something in the world called a public, and it is composed of people, but the collection of people is not just a collection of many people; it creates some sort of something. I think I mentioned the Ship of Theseus—this example from Greek philosophy. Theseus came back from battle and his ship was damaged, so he went to the shipyard and they replaced some planks that had broken. He went on his way, came back again—apparently there were lots of battles—came back again, more planks were damaged, those were replaced too. In the end, after a number of such encounters, not a single plank remained from the original ship. The question is: is this still the Ship of Theseus? In the end—look at a human being, whose bodily cells are constantly being replaced. All our cells are always changing. In the end, I don’t know after how long, but after some amount of time I don’t think there is any cell left that came from the original. It’s entirely replaced. So are we the same person? The same body? Fine, then we get into questions of soul and spirit and all sorts of things like that. But on the basic level, the question is whether the collective, or the collection of particulars that gather together and create some kind of organism—in the case of a body—or a public, in the case of a collection of people, whether that public has some kind of existence of its own beyond the collection of people that compose it. And the practical difference is this: if all the people have been replaced, is it still the same public?
[Speaker E] So the claim is that there’s some common denominator among the people, some kind of something—
[Rabbi Michael Abraham] —who decided to live together as a public, as a community, as a people, as whatever.
[Speaker E] Suddenly a person decides he’s a people and starts walking and all that.
[Speaker F] Without any additional parameters?
[Rabbi Michael Abraham] Yes. What definition? Just ask a person: what counts as a public? A group that decided to live together. What defines the American public as a public? Is there some similarity among them…
[Speaker F] There are all kinds of… what parameters?
[Rabbi Michael Abraham] Basically just that they decided to live together.
[Speaker G] But from a halakhic standpoint sometimes you see the opposite—for example regarding Egypt, whether the Egypt of today is the same Egypt that existed back in the time of Ramses III, since it’s not the same people; they’ve been replaced.
[Rabbi Michael Abraham] But there, in my view, it’s more than just not being the same people. It’s not the continuation of the same public, because it wasn’t a continuous kingdom where only people died and were born and there were some immigrants, fine, but overall it remained—hard to define—but it remained in the same territory, under the same rule, and developed continuously. Here it’s an entirely different people already; they came from somewhere else. Therefore one can perhaps claim that it’s not the same public either, not just that the individuals have changed. So in this context there are two conceptions. The fascist conception says that the public is really the existing entity. And the fascist conception doesn’t only say that the public is the existing entity; it says it is the only important entity. In other words, individuals are merely limbs within the collective entity. Okay? And therefore the implication is that individuals exist to serve the public. The interest of the private person is nullified before the public interest. If he has to die in order to save the public, there’s no problem—that’s like doing surgery. In surgery you sacrifice the arm so that… so that you can keep living, right? There’s no dilemma about whether it is permissible to throw the arm away in order to live. Why? Because the arm is part of the body. Obviously it is part of the organism called the public, and since that is so, one can perform surgery when needed, sacrifice it so that the public remains alive. The individualist conception argues the exact opposite. That conception says that there are only people. I say the metaphysics underlying liberalism—liberalism is a social conception, but behind it there is some kind of conception at the metaphysical level, not only at the social level. And at the metaphysical level the claim is that the public is a fiction. There is a collection of people, and those people decide and make some kind of agreement among themselves. Fine, agreements are allowed and contracts are allowed, but don’t invent entities for me. There are no entities; there are private individuals. And therefore it cannot be that the individual is subordinated to serve the public. The reverse: the public is supposed to serve the individual. That’s why we organized ourselves—we organized together so that we could function together and so that the public and its institutions would provide me with services.
[Speaker C] So basically—
[Rabbi Michael Abraham] —I’m at the center.
[Speaker C] From a halakhic point of view, can I sue the public? What? Halakhically.
[Rabbi Michael Abraham] I haven’t gotten to Jewish law yet. Right now I’m just laying out two conceptions.
[Speaker C] Fine, that’s on the side.
[Rabbi Michael Abraham] Why on the side? That’s the center. I’m just not there yet. I’ll get there. Okay? Not there yet.
[Speaker C] Self-defense or something, that’s…
[Rabbi Michael Abraham] Well, self-defense is not a lawsuit. Self-defense is a legal category within law. Yes. In any case, the claim is that if we look at these two conceptions side by side, then we can already see—without entering Jewish law at all—that they will answer the question I posed here differently. Because if in the end I see in front of me some kind of public and not a collection of people, then I understand that my enemy is the public. It’s not the three soldiers or terrorists or whoever is holding the weapon; rather, the public is my enemy. By contrast, if I’m an individualist in my metaphysical conception, then I say: what do you mean? The thing facing me is a collection of people, and I need to see who endangers me and who doesn’t endanger me, and why should I harm someone who isn’t endangering me in order to save myself? A person may not save himself at another’s expense. Now, what I want to say—and I’m jumping straight to the end—is that if one adopts the fascist conception, and you can already hear that the connotation is problematic, so I use the term only descriptively, not judgmentally, because I do in fact adopt it at least partially—if one adopts that conception, then when I see before me, say, I am fighting against a people, in a confrontation with a people, then the thing standing before me is the public; it is the one pursuing me. Now when I need to strike ten people, say, of whom only five are threatening me, or three are threatening me, or something like that, then the picture flips. The moment I merely introduce this distinction between public and individual, within the laws of a private person—I don’t need to get to the laws of war, I only need to understand that the factor threatening me is a public and not a private individual. The moment I see it that way, we have moved from the pole of saving oneself at another’s expense to the pole of a pursuer. Why? Because if I see them as private people, then I’m killing so-and-so in order to save my own life when he is not threatening me. What right do I have to do that? I’m saving myself at another’s expense; that is forbidden. But on the other hand, if I see the thing facing me as a public, then basically all the people—those holding weapons and those not holding weapons—are the ones threatening me; they have the status of a pursuer. So if I need to kill them in order to save myself, that is the law of a pursuer, and I may kill them. One second, I’ll answer a few things, and maybe that will save some questions, and then we’ll see. The claim, basically, is that bringing the concept of the public into the equation moves me from the pole of saving oneself at another’s expense to the pole of a pursuer. And all of this is still on the plane of private law. There’s no need to get to the laws of war and all sorts of undefined concepts pulled out of a hat. This is all perfectly defined by the categories we’ve been discussing until now. The only thing that has to be introduced here is that the thing facing me is not a collection of people but a public. Once I see it as a public, they become a pursuer, and a pursuer may be killed in order to save oneself. I’ll anticipate things once again just to maybe save some questions that might arise here: obviously this doesn’t mean I should kill every person who belongs to the people with whom I am fighting, just like that, even in places where I don’t need that in order to win the war. That is a hasty conclusion, and again I’m speaking not because of international law, but from the standpoint of Jewish law, in the private laws of saving life, in private law. Why? Because even with a pursuer, if I can save him by injuring one of his limbs, I may not kill him, even though he has the status of a pursuer. If I can shoot him in the leg and thereby save myself, I may not kill him. Now even if I see the collective facing me as a pursuer, it is still obvious that if I can strike only the one threatening me and not strike all the other people or limbs… I may kill him; his blood is permitted. It doesn’t work like that. In other words, even with a pursuer you need justification in order to kill him, even after he has the status of a pursuer. The justification is that I need this in order to save myself. Where I don’t need this in order to save myself, or it won’t help me save myself, I may not kill him, even if he has the status of a pursuer. So one may not kill a pursuer just like that. And therefore you cannot derive from what I’ve said now permission to kill just any person who belongs to the people against whom I’m fighting. Why? Because I don’t need that for the sake of my rescue. I can save myself by striking the one holding the weapon, and I don’t need to strike the one standing next to him. In such a case I have no permission to kill him.
[Speaker C] “If someone comes to kill you, rise early to kill him.”
[Rabbi Michael Abraham] “If someone comes to kill you, rise early to kill him”—that’s the same person who comes to kill me. But if there are ten people coming at you? So I’m saying: if I need to kill them in order to save myself, then I may kill—
[Speaker C] —all of them, if it’s a public. But if I don’t need that, just—
[Rabbi Michael Abraham] —just because he belongs to the public pursuing me, I may not kill him. And therefore I’m saying: the conclusions people worry about when these formulations are stated—the conclusions that say, okay—
[Speaker C] —so now it’s “kill them all,” as they say, meaning, kill whoever you get hold of. It doesn’t work like that.
[Rabbi Michael Abraham] Meaning, even if the law of a pursuer applies, it is not true that there is permission to kill—
[Speaker G] —except where you need it in order to save yourself. When the U.S. and the British bombed Germany in order to break the morale of the German people—Dresden is a special case, but the goal was to break the spirit of the German people so they’d say it wasn’t worth it. We’ll get to that later. Okay? It’s connected to things I’ll get to later. What about a foreigner, someone who doesn’t belong to that public? And what if he’s a minor—does he already belong to the public?
[Rabbi Michael Abraham] So I’ll comment on that—several things. I don’t have clear answers to everything, but I’ll try to give a few implications that I do know how—
[Speaker G] —to address.
[Speaker C] In this regard, the threat to the public—to us, say, okay? The threat to us has to be to the public, not to the individuals of the public.
[Rabbi Michael Abraham] No, no, that’s exactly the difference. Meaning, according to Rabbi Yisraeli, since these are the laws of war, then war is conducted between nations. You have to declare war, there are rules for how the laws of war are carried out, and then according to Rabbi Yisraeli, as long as that hasn’t happened, you can’t do such a thing. Say I, as a private individual, am being pursued by a public collective. For some reason there’s some collective chasing me, but I’m a private person, I have no standing in international law, okay? According to Rabbi Yisraeli, I have to die. I’m forbidden to harm an uninvolved person, because I can’t declare war; I’m subject to private law, not to international law. According to what I’m saying here, it doesn’t have to reach the category of the laws of war, because if the one threatening me is a collective, it is a pursuer, and then the laws of saving a life for a private individual allow me to do this. I don’t need to enter the arena of international law. That’s exactly the difference. Now, the point is that really you already jumped ahead. That is exactly the implication of my move from those amorphous laws of war that I presented earlier to the law I’m talking about now. Now you see that I can actually make decisions in a very orderly way, exactly according to the rules we’ve discussed up to now. Meaning, you don’t need to say, well, this is the laws of war, and then do whatever you want—that is, without reasons. Rather, that exact same mode of thinking, the same principles, the same analysis we’ve used for all the problems until now, returns here too. In the end, we’re talking about private law, not international law, even if it is conducted between collectives. Now, I want to go back for a moment to the metaphysical plane, because somehow at some point we spoke about it in this context. On the metaphysical plane I presented here two conceptions: the individualist conception and the collectivist conception. I think—and I wrote an article here that is basically the article dealing with this issue—I think that in Jewish law you can see, and again, Jewish law is a broad concept, but you can see various indications in the halakhic world that Jewish law has a conception that combines both of these sides. A middle conception. It’s not a fascist conception and it’s not an individualist conception. There is a conception that says a person wears two hats. Meaning, you are also an organ within a collective, but you are also a private individual. And neither one is completely erased in favor of the other. The individualists are not right that the collective is erased because all it is meant to do is serve the private individual, and the fascists are not right that the private individual is erased and his whole function is just to be grease on the wheels of the revolution, yes, like the Communists said. Meaning, people are ultimately just the grease that advances the collective revolution. And with a great deal of irony, communism itself was established in order to achieve equality among people—that is, an individualist goal—but the way to achieve that individualist goal was crushing collectivism. And the process that happened there is very interesting. In any event, this complex halakhic picture has all kinds of expressions. I’ll bring a few examples to sharpen the point. One example is Maimonides in the Laws of Repentance. Maimonides says there that on Rosh Hashanah every person is judged—intermediate, righteous, or wicked—and then the city is judged, and the state is judged, and the whole world is judged. And then Maimonides’ commentators ask: after you’ve judged each and every person—and that’s the order in which he describes it—so after you’ve judged each and every person, what is left to judge in the city? Isn’t the city just the collection of people sitting in it? So once you’ve determined the verdict of each individual, then you’ve also basically determined the verdict of the city, haven’t you? We’re not talking about the houses and the trees, I’m talking about the people. So what is left? And I think the claim in the background here is exactly this claim. Maimonides is saying that on Rosh Hashanah, when I am judged, I am judged in all my various hats. I am judged as to how I function as a private individual, and that is one judgment, and in it I come out intermediate, righteous, or wicked. I am judged as a member of a community: intermediate, righteous, or wicked. I am judged as a member of a state, of the universe, of the galaxy—well, not the galaxy, wait—of the planet, the galaxy, the universe. So the claim is that I am judged in all these circles, and it could be that my judgments are different judgments. In the judgment of me as a private person, it could be that I come out righteous, but in the public judgment I come out terribly. That can happen. There are, by the way, societies and people like that; it can happen, and the reverse too. There are decent societies that function very well, but the private individuals there—you’d better not get close to them. They’re not especially pleasant people. That also happens. Meaning, there can be situations where you’re righteous on the individual plane, but the collective to which you belong is in a problematic state, and you probably also have a share in that matter. Therefore Maimonides says there is no problem at all: you judge all the private individuals, and that still doesn’t mean that the verdict of the city is already sealed. Meaning, that there’s nothing left to do there. No: you judge your very self in your aspect as an organ within the collective of the city. Meaning, now you judge how you functioned as part of the collective of the city, and that is a separate judgment. It could be that you come out acquitted in that and liable in this, and vice versa.
[Speaker B] Sodom—ten people can save, save the city.
[Rabbi Michael Abraham] In the end, if you’re talking about saving the whole city from destruction. But punishment for the grave deeds will be given to the private individuals—that’s the reverse, that reflects what I’m saying. Because the claim is that if you destroy the whole city, then essentially for the sin of the city you also wiped out the private individuals. But the private individual also has independent existence. How can you do that—maybe he is righteous? So what if he lives in a city of wicked people? The point is this: if you destroy the city, then you’ve done something irreversible also to the private individual. That can’t be. So if there is a minimal number of righteous people, then he, as a private person, is not subordinated to the collective judgment. But that doesn’t mean the wicked people of Sodom won’t get the punishment they deserve. The city won’t be destroyed, because “will You indeed sweep away the righteous with the wicked?” That’s exactly the point. So the first example is this Maimonides; a second example is a responsum of the Rosh. Yes.
[Speaker H] Maimonides in the Laws of Repentance also says that a person should always see himself as though he could tip the whole world.
[Rabbi Michael Abraham] So—
[Speaker H] Seemingly there’s that counting of people.
[Rabbi Michael Abraham] Yes, but that counting does not stand the test of reality.
[Speaker H] It’s a description that doesn’t stand the test of reality.
[Rabbi Michael Abraham] Maimonides didn’t mean that either. Maimonides wasn’t talking about that; it’s a Talmudic statement. But that isn’t what was meant. It can’t be what was meant. Maimonides says if we really count, then there’s no such thing as the world being half meritorious and half liable; the odds are zero. You can’t hit an exact tie, and we also rule in Jewish law that you can’t hit an exact tie. So I don’t need to be concerned that the world is actually in a balanced state. Rather, “a person should see himself as though he tips the scale”—why? In order to pay close attention to everything he does. It’s only a literary expression: pay attention, as if everything depends on you. Not everything depends on me—fortunately for you. Fine, but it’s very good to live with the feeling that things depend on me. Meaning, that I need to behave as though things depend on me. There is a Beit HaLevi on the portion of Genesis, I think—he says, I don’t remember where exactly, the Beit HaLevi on the Torah—he says: how can you deal with urges or things like that? He says, look, think of yourself as a tightrope walker in a circus going up on a rope with a large balancing pole, walking on a rope at, I don’t know, 20 meters high. Okay? Down below all the beautiful women in the world could pass by in minimal clothing, and you would not move your eyes to look at them. Because you know that the moment your concentration breaks, you die. Right? So if you live that way in your life, you can deal with any urge. And that’s basically what they’re telling you here. What they’re telling you here is: see yourself as though the whole world depends on you, half meritorious and half liable. But it doesn’t actually depend on me, to your relief. Anyway, so the second example is this: a responsum of the Rosh. The Rosh says that a vow of one person cannot obligate another person. Not regarding my property—I can forbid someone from deriving benefit from my money, I can prohibit him from benefit from it. But I can’t make vows for him about other things or impose oaths on him. There’s no such thing. Meaning, every person makes vows and oaths for himself. And then he asks—the responsum of the Rosh, and this is also brought as Jewish law by the Rema in Yoreh De’ah in the laws of vows—the Rosh asks there: then how do communal bans take effect? Meaning, a community essentially places a ban on whoever does such-and-such. A ban is basically a type of vow. Whoever does such-and-such will be under a ban. Now, like legislation in our language, right? The Knesset legislates a law. Okay? Why does that obligate us? Because they’re our representatives. And why does that obligate our children? Or if the law isn’t changed, even two hundred years from now it still obligates us. The Knesset that enacted it were not the representatives of our children two hundred years from now. Or people living in the community—why are they bound by these bans when in the end, after fifty or a hundred years, it may be that even their descendants are no longer there because they left and others came. The community is continuous, but still, the people themselves have all been replaced. So how can fathers place their children or descendants under a ban? There’s no such thing in Jewish law. So he says: in a community, it is possible. That’s what the Rosh says. What stands behind this? Again, it is brought as Jewish law by the Rema in Yoreh De’ah. What stands behind it? What stands behind it is that the one who determines this ban or this vow in the community is not the collection of individuals. The community is a collective organ. And when it imposed some vow upon itself, who became obligated by that vow? The public. Not the collection of individuals. The collection of individuals is obligated by virtue of belonging to the public. But the one that undertook this vow is the public. If that’s so, then the one that remains under this vow is still the public, as long as it is the same public. And therefore it can still apply a hundred, two hundred, five hundred years later. Just as we understand today that when the Knesset legislates a law, as long as it hasn’t been changed it obligates even five hundred years later—unless someone changes it. Why? How does a Knesset from five hundred years ago obligate me? Because the one obligated here is not me. The one obligated here is that collective of the citizens of the state, of the public in the state, and everyone who belongs to that collective is obligated as part of it. And a collective, as Justice Hoover says—“the public does not die.” The public never dies. Therefore, by the way, the ultimate source of impurity is death. Right? A corpse is the ultimate source of impurity, and impurity is overridden in relation to the public. Because the public does not die. The concept of death simply doesn’t apply to the public. “The public does not die” is one of the common examples brought for this matter. Rabbi Soloveitchik talks about this in On Repentance. One of the examples they bring is Tosafot in Me’ilah, I think on page 9b. There is a one-line Tosafot there. Tosafot says there—he’s speaking there about a sin-offering whose owners died. So what happens with a communal sin-offering? It grazes until it becomes blemished. A sin-offering whose owners died—what about a communal sin-offering? So he says a communal sin-offering can always be offered. There is no situation of “its owners died.” The Talmud says that, not Tosafot. The Talmud says it. So Tosafot says why? Because “one generation goes and another generation comes, but the earth stands forever.” He asks: why isn’t it considered a sin-offering whose owners died? So he says: “one generation goes and another generation comes, but the earth stands forever.” Meaning, this verse from Ecclesiastes is taken by Tosafot as expressing that the public does not die. And the public never dies. Even if the collection of people that composed it at a certain moment have died and now they are different people, and not even their descendants—others came and all the originals are gone—but there is still some continuity in their institutional definition as a public, then it is the same public. And therefore that is basically what the Rosh also meant to say: once the public makes decisions, that really does obligate. That also resolves the oath at Sinai. “Already under oath and standing.” The Sages tell us that we are already under oath from Mount Sinai to keep the commandments. Since when can our ancestors obligate us with an oath? There is a difficulty here from the Rosh. Yes? Why do we need to listen to the Rosh if we’re not obligated in the commandments? That’s a good question. But how does this fit with the Rosh’s conception? It fits with the Rosh’s conception because what our ancestors swore at Sinai, they did not swear as six hundred thousand individuals. The one that swore there was the public. Like legislation. Once the law is accepted publicly, it obligates the public, and now everyone who belongs to that public is obligated in the law. It’s not fathers over children; it is the public upon itself. And a factor can determine things for itself. The public too is a kind of factor, and it can swear regarding itself.
[Speaker C] And that’s in the portion—at the beginning of the portion of Nitzavim. Yes.
[Rabbi Michael Abraham] At the beginning of the portion of Nitzavim you can even infer it from the verses. There is a shift there from singular language to plural language—very interesting.
[Speaker C] Why is it not reversible in relation to the public? What? If a public does the opposite, why is it not reversible?
[Rabbi Michael Abraham] Maybe it is reversible—why not? Listen, if they decide they’re dismantling themselves, closing down the state—
[Speaker C] They change it. Leaders of the public make opposite decisions.
[Rabbi Michael Abraham] No, no—there’s no force against the decisions of the Holy One, blessed be He; these are decisions of the public. Certainly yes. If one public made a decision, another public can cancel that decision. Obviously, there’s no question here.
[Speaker C] But there are enactments—that’s not canceling it.
[Rabbi Michael Abraham] What? No, enactments are not the public; that’s from above, not from below.
[Speaker C] So if so, does this law apply to the public?
[Rabbi Michael Abraham] Yes, all laws apply to the public. Why am I claiming this? I’m claiming that private law itself—you don’t need to expand it, you don’t need to invent other laws like the laws of war. Private law itself, when you apply it to the public and take into account the definition of what a public is, that is what will give you the halakhic result. You don’t need to invent these rabbits of the laws of war now. Just take the concept of the public, insert it into the arena of private law concerning saving life, and whatever comes out, that is the Jewish law. That’s the claim.
[Speaker C] Wait, wait—so if a public sees a pursuer and does nothing to him?
[Rabbi Michael Abraham] That really is a problem. That public—
[Speaker C] What does Jewish law say?
[Rabbi Michael Abraham] What is “Jewish law says”? Jewish law is me—I’ll tell you what I say. What I say is that this public acted improperly. It didn’t harm the pursuer. There is no punishment for someone who did not harm a pursuer, but it acted improperly; it committed a transgression: “do not stand idly by your neighbor’s blood.”
[Speaker C] A small technical question: in the law of a pursuer, if I can stop the pursuit without killing, I’m forbidden to kill. “If someone comes to kill you, rise early to kill him”—does that also belong to this law?
[Rabbi Michael Abraham] Same thing. “Rise early to kill him” is the law of a pursuer. What’s the difference?
[Speaker C] There is a difference. That’s me—that belongs to the situation of the pursued person himself.
[Rabbi Michael Abraham] There is, after all, a dispute. The Rivash claims that regarding the pursued person himself, the rule of “if he can save him by injuring one of his limbs” does not apply. But there are medieval authorities (Rishonim) who disagree and argue that even regarding the pursued person himself that rule does apply.
[Speaker C] And that becomes acute in what you’re saying right now, because if I’m, say, a soldier on the front line, and the enemy isn’t threatening me, he’s threatening the public behind me, the home front—
[Rabbi Michael Abraham] In practice that has an implication if you do not accept my thesis. If you accept my thesis, it has no implication. No, because if you accept my thesis, then I too am a collective, not only the enemy opposite me, and then he is threatening me, not someone else. Fine? There are collectives on both sides here.
[Speaker C] Yes, the intifada story—we’ll get to that.
[Rabbi Michael Abraham] We’ll get there, we’ll get there. You’re waiting patiently, I know. We’ll get there. Yes, I’m getting close, you see. The story that wasn’t with God. Anyway, the claim is that there is some complex conception here in which we see people as belonging to a collective, but on the other hand their rights or their standing are not erased before the collective. Meaning, this isn’t fascism. It is some conception in which I myself wear two hats: I am an organ in the collective, but I am also a private person. And now I remember that we spoke about this once, so I brought the example of that soldier of Rafael Eitan’s at Mitla, with the jeep. Right? I’m almost sure we discussed it. What? Yehuda Ken-Dror. Ken-Dror, exactly. Yehuda Ken-Dror, when they parachuted there at Mitla and there was an Egyptian ambush, and they were dug in there and didn’t know where exactly the fire was coming from. So Rafael Eitan asked for a volunteer to drive a jeep so that the Egyptians would shoot at him, and then they would see where the sources of fire were and could deal with them, because otherwise everyone would die—or many would die. Meaning, it was a very difficult situation there. But he asked for a volunteer. The volunteer was Yehuda Ken-Dror. He went there and indeed they shot him; he was badly wounded and after a few months died from his wounds. And this was a suicide mission, obviously. It was clear to him that he was going to die. This wasn’t taking a risk; it wasn’t a mission of taking a risk. It was a mission to die. So why did he ask for a volunteer there? And I don’t know whether Rafael Eitan made all the philosophical calculations—he wasn’t exactly a philosophical type, I think—but in fact that’s also how it is in the army’s orderly ethics. You cannot give such an order in battle. A commander cannot give such an order to a soldier. An order of suicide. Every going into battle is a risk; that is, the soldier may die, and that is clear, and you give orders for different missions in battle. But you cannot give a soldier an order to commit suicide, even though in this matter he would save the entire battle. Why not? If that’s really so, think also of the Jerusalem Talmud in Terumot: “Give us one of you,” and we give the one in order to save all the rest. But there I said that it’s a matter of desecration of God’s name and not necessarily a question of life-and-death law, whereas here there is no issue of desecration of God’s name, because I’m not yielding to a demand to hand over one of us. Rather I’m saying to him: listen, go out there because that is the mission; I can’t do without it. The point is that I cannot erase the private individual even when the public interest is unequivocal, and even when I see him as part of the public, because he also has the hat of a private person. Meaning, he is also a private person; he is not only part of the public. And as a private person, you cannot relate to him as some organ—let’s perform surgery and kill him so that the rest remain alive. You can ask for volunteers. Meaning, if someone volunteers, that itself is also novel—that one is permitted to volunteer for such a thing. Because in general in Jewish law, when it is forbidden to kill and forbidden for you to die, it is also forbidden for you to volunteer to die. Meaning, there’s no such thing. But here the novelty is this: volunteering is permitted, but you cannot give such an order. Meaning, that is not an order. And why not? It seems to me exactly because of this issue. Meaning, you cannot erase the private individual and see him as grease on the wheels of the revolution. That is a fascist conception. And I think Jewish law does not accept that, just as it is not accepted in the IDF either. Meaning, I think that in Jewish law too this is correct. An example of this—again, “Jewish law” is an amorphous term. How do I know? Ask: how do I know that Jewish law says this? I’ll tell you: my proof is “do not be intimidated before any man.” The Talmud brings that “do not be intimidated before any man” is a commandment to a judge not to be afraid of violent litigants. If there is a violent litigant who comes before you, and you fear that if you rule against him he’ll kill your child, take your money, kill you, whatever—you are afraid of him. So Jewish law forbids you to be afraid. Well, it doesn’t forbid you to feel fear; it forbids you to act based on the fear. You may feel fear. But you are forbidden to act on it, and also forbidden to withdraw from the case. I’m speaking, by the way, about an appointed judge. The medieval authorities make a distinction. If the judge is not appointed, he is permitted to withdraw.
[Speaker C] What did he take? What?
[Rabbi Michael Abraham] What did he take? Fine, never mind, let’s not get into matters concerning his life. Don’t overdo it. The claim is that an appointed judge, someone who holds a public office—not just someone whom I ask together with two others to sit in judgment—but someone who holds a public office cannot withdraw from such a case, even if these are the most frightening and violent people. Now there is a dispute among the halakhic decisors as to how far this goes. If it is a threat to property, everyone agrees: you’re forbidden to withdraw from judgment. But if it is a threat to life, then there is a dispute. There are those who want to claim that in a possible danger to life, you are still forbidden to be deterred. Meaning, you must still judge the case even though from your perspective this is possible danger to life. But possible danger to life—there is one opinion I once found that says this applies even in certain danger to life. An actual suicide mission. But that is a very rare opinion. And that is not accepted as Jewish law. What is the difference? Usually you should know that in Jewish law, whatever is permitted because of danger to life is also permitted because of possible danger to life. There is no difference. Right? Saving a life overrides the Sabbath. In the Talmud in Yoma, when it brings five reasons why danger to life overrides the Sabbath, it rejects three or four and leaves one. Now why does it reject all four for the same reason? Because those reasons say that one may desecrate the Sabbath for certain danger to life, but not for possible danger to life. Therefore that cannot be the correct reason. Okay, so it is permitted in the face of certainty and also in the face of doubt. Why can that not be the reason? Because to the Talmud it is obvious that wherever there is permission because of danger to life, there is permission because of possible danger to life as well. So it’s the same thing. If there is a reason that can bring you to permission in the case of certain danger to life but not in the case of possible danger to life, then that is not the correct reason. And you need to look for another reason. To the Talmud this is a first principle: it is obvious that every permission in the face of danger to life also applies in the face of possible danger to life. And now I return to the judge. So if a judge who is in certain danger is allowed to withdraw—that is almost everyone’s position—then in possible danger there are opinions that say he is not. So the question is: what’s the difference? If in the face of danger to life you may withdraw, then in the face of possible danger to life you should also be able to withdraw. I think the answer is the same answer I said earlier, and this is my proof. Because the Talmud is basically saying this: when you withdraw from judgment, then of course you are unraveling the public. Because without an effective legal system there is no public. And therefore you are forbidden to withdraw. It is danger to the life of the public. And again, not because someone will die. No one will die. The public dies. Meaning, the public ceases to exist as a public. In terms of Jewish law, that is death. In terms of Jewish law, in order to prevent such a thing, exactly what is permitted for danger to life is permitted. And there is much evidence for this. In the article I wrote on this, I brought a lot of evidence. Charity for public needs, for example, is considered charity eligible for tithing money. Public needs—to establish a community center, not to save people from death or to give food to the poor—but public needs, to establish things the public needs: according to many halakhic decisors that counts as charity from tithe money. By the way, taxes—Rabbi Ovadia writes that taxes can count as tithe money, because the state uses taxes for various actions that are acts of charity. Now, it depends what fraction of the taxes, because not everything. But if you think about the positions that even public needs count as tithe, then almost all tax does. Almost all tax. Because not only the money that goes to charity for the poor and support for the needy, but also the things that go to public needs—that too is basically charity. In any event, what we see here is that we look at the public as a kind of living organism, and if there is concern that this organism is falling apart, that is considered death. In terms of Jewish law, that is danger to life. And therefore the judge is required to physically endanger himself so that the legal system remains effective, because without that the public falls apart. Why not in the case of certain danger to life, then, if so? Because certain danger to life is a suicide mission, exactly as we saw earlier. Even if the public needs you to sacrifice yourself so that the public may be saved, still you are also a private person. You are not only an organ in the collective. And as a private person, you also have some independent standing. You cannot be forced to erase all your selfhood and regard yourself as some organ in the collective, completely subordinated to the interest of the collective. And therefore it is always some very delicate dosage. On the one hand, possible danger to life maybe yes, because that is like every soldier. Every soldier could say, “I’m in possible danger to life, I’m not going to war.” Why doesn’t he say that? Because he can’t say that, because he is an organ in the collective. So why in the case of certain danger to life can you not give him such an order? Like with the example I brought before. Because in certain danger to life I am basically erasing him as a private person, I am seeing him as some screw in the collective—that’s not acceptable. Meaning, Jewish law distinguishes between these two aspects. And again, this means that we are built as people wearing several hats: the private hat, the collective hat, or several collectives. Every collective we belong to is another hat. So, for example, we also belong to the world. Meaning, in principle the interest of the world also obligates us halakhically. It obligates us. We too are citizens of the world. In a certain sense, when people talk about ecology or things like that, I think that is a halakhic obligation. We too are citizens of the world. When there is a dilemma, when there is a conflict between, say, the interest of the narrower society in which I live—my people or my city—and the world, then again, “the poor of your own city come first,” and so on, and what do we do—but it is not that I do not belong to the world at all, that I am only a Jew or something like that. These circles keep expanding—one circle and another circle—with a hierarchy among the circles. Universalists of course erase the hierarchy. They claim we are citizens of the world, apparently because extreme individualism and extreme fascism—you know, any two extremes, if you go all the way with them, in the end they meet. Meaning, they arrive at exactly the same place. And if you go all the way with fascism and all the way with individualism, you arrive at exactly the same place. It’s the same thing.
[Speaker C] So according to this, does the public define itself, or can the world define a public?
[Rabbi Michael Abraham] I don’t know. Meaning, it’s some kind of combination. But the world recognizes a certain group that defines itself as a public.
[Speaker C] The Jewish people, right? Yes—so He defined us as a people.
[Rabbi Michael Abraham] I don’t know if He defined us; He recognized that we are a people. We define ourselves, and the world recognizes that we are a public. You know, it’s like marriage. Why do you need witnesses for the validity of the matter in marriage? There is a Pnei Yehoshua here—I think this is the simple explanation—that these witnesses do not testify like ordinary witnesses who come to testify to the truth, but rather they are witnesses for the validity of the matter. What does that mean? They are the public stamp that says you are married. Meaning, the witnesses are representatives of the public, and they stand there saying: we recognize that you are now a married couple. That is what turns you into a married couple. Without public recognition, the fact that you decided to get married is not enough. You decided to get married, but the public has to recognize you as a married couple; only then are you married. And are we then a public? Yes, let us speak on the assumption that there is a public, right? I’ll say more than that: we once discussed this, I don’t remember when, that if there were no public, there would be no marriage. That is what I claim. Why? Meaning, two people living on a deserted island—Adam and Eve—could not have consecrated one another in marriage. Because marriage is a public institution. Meaning, if the public does not recognize you as a unit distinct from the rest of the public, then it is not marriage. By the way, “You shall be holy”—“you shall be separated,” right? Rashi there brings the Sages. What does “separated” mean? That we are consecrated to one another means that we are a unit separated from all the rest of society. If there is no rest of society—we are the society. Right? Robinson Crusoe would have dreamed of such a world, yes? We are the society. So if we are the society, there is no marriage, because we do not need to separate ourselves from anyone outside us. Meaning, marriage is a social institution. So that means we need to decide to marry, and the public needs to recognize that we are married; only then does it really happen. And the same with the definition of a public. The definition of a family unit and the definition of a public work in similar ways. You probably need witnesses for the validity of the matter also in defining a public. Maybe a UN envoy to the region would be a witness for the validity of the matter. In any event, the claim is that when we see the person as wearing these two hats, the collective hat and the private hat, then that creates some complex worldview. And this picture basically says—and now I return to our discussion of killing innocents—that on the one hand I see before me a collective, and that collective is in fact threatening me. Since it is threatening me, all its members have the law of a pursuer. All of them have the law of a pursuer. As I mentioned with Siamese twins, if you remember, I said that the permission to conduct a lottery in order to choose one of them to remain alive and leave the other to die stems from the fact that both of them have the law of a pursuer. But the fact that both of them have the law of a pursuer does not mean that now I need do nothing because they can die; they have the law of a pursuer. No. The law of a pursuer is only permission to kill when necessary. So if I conduct a lottery, I can kill him because he has the law of a pursuer. The fundamental permission to kill is there, but you still need a reason to kill or a justification for killing. Therefore if he can be saved by injuring one of his limbs, then there is no justification to kill, even though he has the law of a pursuer, and you may not kill him. You need both the law of a pursuer and a justification. Those are two things. Therefore with a public, when there is before me an enemy or threatening collective, then that collective is in fact my pursuer even if I am a private person. I do not need to declare war. I am not going with Rabbi Yisraeli’s model. That model also exists, but you don’t need to get there. Rather, from my perspective they are all pursuers. That does not mean you are allowed to kill all of them—absolutely not. Only the ones I need to kill in order to save myself—those I am allowed to kill. And there is also no separation between the soldier and the public that sent him, as was mentioned here earlier, because I think that too is a collective. There are several implications to this picture. That is what I wanted only to add here. What I wanted to add here is that the prohibition against killing a person who is not threatening me—I said that this is despite the fact that they are a collective pursuer—if I can save myself by injuring one of his limbs, if I do not need to kill him in order to save myself, I am forbidden to kill him, even though he is a pursuer. Now I am adding something else, not what I spoke about a few sentences ago. Besides that, he is also a private person. He is not just an organ in the collective entity. And therefore that is another reason why I cannot just harm him, even though he has the law of a pursuer, because he has the law of a pursuer only from the side of his collective hat. But besides that, he is a private individual who is not holding a weapon and is not threatening me. So again, there is a very delicate balance here. If I need to kill him in order to save myself, then I use his collective hat, and then I can harm him if there is no choice, because without that I cannot save myself. But if not, then aside from the rule of “if he can be saved by injuring one of his limbs,” as someone mentioned here earlier according to the Rivash’s position, after all, the pursued person himself may kill the pursuer even in a case where he can be saved by injuring one of his limbs; only another party—only someone else who comes to save the pursued person—then it depends: if he can save him by injuring one of his limbs, he may not kill, and if not, then he must kill. In this case I am the pursued person, so what do I care that he can be saved by injuring one of his limbs? According to that position of those medieval authorities, it does not apply to the pursued person himself. I say no—even according to the Rivash, it would still be forbidden to kill innocents. Just to kill them if I do not need it in order to save myself. Why? Because besides belonging to the collective that is pursuing me, they are also private persons. And in every private person there is also that aspect—you cannot subordinate his private aspect. And as a private person he is not a pursuer, and indeed this would be saving oneself at the cost of another person’s life, and that is forbidden.
[Speaker C] The second derived implication of shifting to private law including a collective is also that if it’s not real-time anymore, then I’m already forbidden to do anything. After all, the law of a pursuer only applies as long as he is pursuing.
[Rabbi Michael Abraham] There’s a demonstration now—fine, that’s true in international law as well. In war too, if someone is not endangering you, you may not kill him.
[Speaker C] What do you mean? When a war starts they fire, fire, they stop firing—once they’ve stopped firing, am I forbidden to shoot?
[Rabbi Michael Abraham] I don’t know what “they stopped firing” means. The question is what counts as stopping fire. In the laws of war, to stop firing means to declare a ceasefire, not to take your finger off the trigger for a second.
[Speaker C] In the laws of war now. In private law of a pursuer, that’s what you said.
[Rabbi Michael Abraham] Okay, fine, but I’m saying that in the laws of war too, when they stop firing you may not kill them. It’s just that the question is what counts as stopping fire. In the laws of war, when does a public stop firing? Not when by chance there is some second in which no one is shooting. That is not called stopping fire. You have to define what stopping fire means. In the laws of war, too, it’s the same thing; only the definition of stopping fire means that we have declared a ceasefire or armistice. Other implications of this matter—more implications of this matter—someone mentioned earlier: what happens if, when I am about to strike those who threaten me, I hit people who do not belong to the collective threatening me? There happen to be some tourists from Sweden in the area of the terrorists fighting me. What do I do in such a situation? Or just journalists from France. Some would say they’re even worse. Yes, but the question is what to do.
[Speaker H] It could even be a Jew there.
[Rabbi Michael Abraham] No, but also a non-Jew. I don’t think there is any difference here between a Jew and a non-Jew; I spoke about this in one of the earlier sessions.
[Speaker H] He’s part of yours.
[Rabbi Michael Abraham] Ah yes, but in any case I’m saying that even if he’s not a Jew, it’s the same problem. Rabbi Yisraeli himself also writes that there is no difference between a Jew and a gentile in this matter. It’s not that you’re allowed to kill a gentile. This whole discussion we’ve had until now is not only about a Jew; regarding a gentile it’s the same. You are forbidden to kill a gentile in order to save yourself. And you are even forbidden to damage the property of a gentile in order to save yourself. Rabbi Yisraeli writes all that too, which to me is obvious, but he writes it because of that book—what’s it called? Torat HaMelekh—and there they erased this whole issue entirely. Anyway, the implication is, as I said before—
[Speaker C] Would it be permitted or forbidden?
[Rabbi Michael Abraham] I think that according to this conception it is forbidden. Here, if the laws of war allow me, as a collective engaged in war, to fight—well, what can I do if there happen to be a few Swedes walking around there—then from the perspective of the laws of war it would be permitted. But in the model I am talking about now, as a private individual, it straightforwardly seems forbidden. Because you cannot kill someone in order to save yourself. There is one line of reasoning that enters here and needs to be taken into account; I’m undecided about it even in the case of a private individual. Suppose there is someone sitting in a moving car who is threatening me, and next to him is sitting some innocent person. Now am I a collective? What? No, not a collective, a private individual. It would be the same in the collective case, but I’m looking at a situation of a private individual. Now I need to destroy the car; I have no other way of dealing with it, and that will obviously also kill the person sitting next to him. So I would say that in principle that is forbidden. Only if they belong, in some sense, to the same collective—both sides. But there is some argument that says: hey, I’m not shooting at the person sitting next to him; I’m shooting at the one threatening me. The fact that he is there is not relevant. If I needed to kill him in order to save myself, that would be forbidden—saving oneself at the cost of another’s life. But I’m not killing him; I’m killing the one threatening me. That is the law of a pursuer. The fact that such a bullet also hits whoever is nearby—what can I do? I am engaged in the act of killing my pursuer, and that I am allowed to do. There is room for such reasoning. I don’t know what to say about it definitively, but there is room for such reasoning.
[Speaker C] But by the fact that they’re sitting in the same car, isn’t that already some sort of collective?
[Rabbi Michael Abraham] No, he’s just riding in a taxi, a hitchhiker, just someone who happened to be there, unrelated—just happened to be there.
[Speaker C] Is there a difference between a danger facing the public and a danger facing a private individual? A consideration like—say, he’s threatening only a certain person and not the public. Is there a difference?
[Rabbi Michael Abraham] There are halakhic decisors who write that yes. Maybe I’ll get to that later. But I’ll say in one sentence: “Those killed in Lod—no creature can stand in their place,” Pappos and Lulianus, who gave themselves over to death so that all the Jews there would not be killed. And there the halakhic decisors discuss how such a thing could be permitted. The Jerusalem Talmud says—and Maimonides in chapter 1 of the Laws of Murderer brings the Jerusalem Talmud—that the Jerusalem Talmud says a person is permitted to place himself in possible danger, not only permitted but maybe even obligated, I don’t remember right now, in order to save someone else. Most halakhic decisors do not rule that way. The claim is that since in the Babylonian Talmud they do not rule that way, and most decisors reject it, meaning it was not accepted as Jewish law. So they ask from Pappos and Lulianus, where we see that the Torah praises—the Talmud praises—them, saying that no creature can stand in their place. And what did they do? They gave themselves over to death in order to save the Jewish people. And there the Tzitz Eliezer and several halakhic decisors argue that in order to save a public, yes, you are permitted to give yourself over. They also say, by the way, that you are not obligated, but it is permitted. Because most decisors say that it is forbidden—not only that you are not obligated, but it is forbidden for you to do so.
[Speaker C] Is that the story of Uri the volunteer?
[Rabbi Michael Abraham] Yes, although with Uri the volunteer it is a little different. Uri the volunteer is a little different because Uri the volunteer would himself die. It’s like the Jerusalem Talmud in Terumot. He too would die—meaning, if he does not give himself over, then they will kill everyone and probably him too. Not certainly, because no one there really knows in the end whether they will kill everyone all the way through. But the danger exists for him too. In a place like that it is very plausible that it is permitted, because you too are in that danger. But Pappos and Lulianus—in some of the interpretations it appears that they were gentiles—they themselves were not in danger, but they gave themselves over in order to save the Jews there. So that is a different episode.
[Speaker B] Is that the story of Esther? Of Esther in the Scroll of Esther.
[Rabbi Michael Abraham] Yes, Rabbi Zilberstein also brings Esther. I see that today I didn’t get to it; I already brought that with me. Next time, God willing. Waiting patiently. So this, I’ve now more or less built what I need. I haven’t read the Maharal; the Maharal is actually considered perhaps the basic source for this matter. It’s about Simeon and Levi with Dinah. So it says there, “The sons of Jacob answered Shechem and Hamor his father deceitfully, and they spoke, because he had defiled Dinah their sister.” That’s what the verse says, and then they came to the people of Shechem and killed them. Rashi says that “deceitfully” means wisely. And that sounds whitewashed, right? Deceit has a connotation, like murder and killing. He killed him, he killed him, and he murdered him—that’s not the same thing. And deceit and wisdom are not the same thing either. You can act deceitfully in a clever way, but deceit and wisdom are not the same thing. So Rashi is intentionally saying: it’s not deceit, it’s wisdom. In short, he judges them favorably for this deception. Why? Scripture says that there was no deception, because he had defiled Dinah their sister. Scripture says that such a thing is not called deception—but it’s not invalid deception, because Scripture says: because he had defiled Dinah their sister. So on this they ask: the Maharal writes there in Gur Aryeh, “For otherwise, why do I need the phrase ‘because he had defiled their sister’? For they themselves did not say, ‘because he had defiled Dinah their sister.’” In their deceit—they didn’t say to the people, “because you defiled Dinah our sister,” because that would give the whole thing away. The verse says it, not Simeon and Levi. So why does the verse say it here? “The sons of Jacob answered Shechem and Hamor his father deceitfully, and they spoke, because he had defiled Dinah their sister.” What, that’s what they said? “Because he had defiled…”? They didn’t say that; after all, they deceived them. So what does it mean? It means that this deception is wisdom and not deceit because of the background—the act that he defiled Dinah their sister. The narrator writes, “because he had defiled Dinah their sister”; therefore I call it wisdom and not deceit. That’s what Rashi is explaining here. “Surely Scripture says, because he had defiled Dinah their sister, and therefore this was not deceit. But it is difficult: if Shechem sinned, what sin did the whole city commit, that they should be killed?” This is Stalin’s example that I brought one of the previous times. Right—what do you want from all the Russians if Stalin is a mass murderer? Maimonides answers that the descendants of Noah are commanded concerning laws, and for even one transgression that he commits he is executed because of it. And here they saw this evil deed and did not judge him; therefore they were liable to death because they did not judge him. The people of Shechem were liable to death because they did not fulfill the commandment of laws. “And truly these words are astonishing.” How could they judge the son of the prince of the land? This isn’t a democracy. How can they judge him? They’re afraid of him; he’ll kill them if they demand to judge him. And even though they were commanded concerning laws, that means when they are able to judge, but the Merciful One exempts one under compulsion. They can’t—they are under duress. An interesting question is whether, for a Noahide, “the Merciful One exempts one under compulsion”; not all the halakhic decisors agree with that. “And it seems that there is no difficulty at all,” says the Maharal, “because two nations are not comparable”—for example, the children of Israel and the Canaanites. The family of Jacob as a nation, as a people—they are two nations, as it is written, “and we will become one people.” Three verses later, when they come to the people of Shechem, they say, “and we will become one people.” From here, says the Maharal, we see that at this moment the situation is that we are two different peoples. So if we are two different peoples, then the laws of war apply. “And from the outset they were not considered one people. Therefore it was permitted for them to wage war, to wage war according to the law of one nation that comes to fight another nation.” By the way, this is the basic source for the laws of war in Jewish law—it’s strange. The Maharal, in his commentary on the Torah, and this is the main source they bring for the laws of war that the Torah permitted. “And even though the Torah said, ‘When you approach a city to wage war against it, you shall call out to it for peace’”—so here they should have called out to them for peace. Why did they suddenly attack them and kill them right away? That is where this applies—these are the laws of war in the Torah itself. “You shall call out to it for peace” is a law of war from the Torah itself. “That is where they have done nothing to Israel; but where they have done something to Israel, such as this, where they breached against them to commit an outrage against them—even though only one of them did it, only Shechem did this—since he is part of the people…” You see the collective pursuer here. Because he is part of the people, since they attacked them first, it is permitted to take revenge on them. “And similarly all the wars in which they are found, such as ‘Harass the Midianites’—even though there were many among the Midianites who did nothing”—not all of them sinned, so why are you killing all the Midianites? “This is no distinction. Since they belonged to that nation which did evil to them, it is permitted to go to war against them. And so it is in all wars.” It is all wars, like with Saddam Hussein.
[Speaker C] That’s not saving life, it’s revenge?
[Rabbi Michael Abraham] Yes.
[Speaker H] That doesn’t help.
[Rabbi Michael Abraham] Because in war, under the laws of war, revenge is also permitted. Yes, of course, of course. Against nations—if you want to frighten people so they won’t do something to you again, you’re allowed to take revenge.
[Speaker C] Then it has to come under the laws of war.
[Rabbi Michael Abraham] Obviously, obviously, that’s what I’m saying. The Maharal is speaking explicitly about the laws of war. I spoke about this earlier too—I spoke earlier about the collective pursuer. So first of all, you see that in the Maharal, this collective aspect. Since he says that even though they didn’t sin, because they belong to this collective, this is done to them as well. But yes, I also agree that it has to come under the laws of war, and also that it’s revenge. A private individual is forbidden to do such a thing, to kill people for revenge. A collective can make long-term calculations. You have to kill them if they threaten you, because tomorrow morning they’ll come out against you in war even if right now you do nothing to them. So there’s no choice; deterrence is part of public war, but that really is already the laws of war.