The Periphery of Halakha – Lesson 8

Table of Contents

• Peripheries of Jewish law and continuation of the discussion about civil courts
• “Do not be intimidated by any man” in the sources: Maimonides, Sifrei, Talmud, and Sefer HaChinukh
• An appointed judge and a non-appointed judge, and the reasons for recusing oneself from judgment
• The Rashba’s responsum on threats and the concern over collapse of the justice system
• Life-threatening danger in relation to “do not be intimidated”: doubt, certainty, and the dispute among halakhic decisors
• Public life-threatening danger: social disintegration as the death of the collective body
• Implications for the Sabbath: police, state services, and Yeshayahu Leibowitz
• Possible life-threatening danger versus certain danger: IDF ethics and a person’s two “hats”
• Levels of obligation: knowing where the law tends, role, and conceptual arguments without explicit sources
• Peripheral or internal to Jewish law: reasoning as a source and the distinction between types of reasoning
• Public service and the categorical imperative: against relying on “others to do it”
• Conclusion and framing the connection to peripheries

Summary

General Overview

The speaker concludes a series on the “peripheries of Jewish law” and continues the line of discussion about civil courts in the State of Israel from the claim that the honest way is to put the conflict on the table: a straightforward reading of the sources forbids turning to civil courts, but a society cannot exist without an effective legal system. He broadens the justification through the prohibition of “do not be intimidated by any man” and proposes that preventing social disintegration is a consideration of public life-threatening danger, to the point of obligating a judge to enter into risk in order to preserve a functioning justice system. From there he derives implications for essential services on the Sabbath such as police and state services, and adds the principle of the “categorical imperative” as a reason not to base observance of Jewish law, or stringency, on the fact that others will do the work in your place.

Peripheries of Jewish law and continuation of the discussion about civil courts

The speaker presents the dilemma of resorting to the courts of the State of Israel as a conflict that cannot be bypassed: on the one hand, sources of Jewish law seem to forbid the courts of laymen and even non-Jewish courts, and on the other hand there is no practical way for society to exist without an effective legal system. He justifies bringing “peripheral” considerations into halakhic decision-making and says that at a conference where he presented this thesis, people from YU were very angry about the approach. He identifies the basis of the conflict as an inability and unwillingness to accept a society without an effective legal system, and defines the justification for that as a kind of life-threatening danger, because social disintegration is viewed by the Sages and later authorities as a matter of life-threatening danger.

“Do not be intimidated by any man” in the sources: Maimonides, Sifrei, Talmud, and Sefer HaChinukh

Maimonides, in Sefer HaMitzvot, defines prohibition number 276 as a warning to the judge not to fear a harmful and threatening person and not to decide against him unlawfully, but rather to render a true judgment without paying attention to the harm expected to come to him, based on the verse “do not be intimidated by any man.” The Sifrei explains: “Lest you say, I am afraid… lest he kill me or my son, lest he set my grain-stack on fire, or lest he cut down my saplings,” and establishes an obligation to judge even in the face of threats to one’s body and property. The Talmud in Sanhedrin 6b, in the name of Reish Lakish, qualifies the obligation: before hearing the claims, or after hearing them when the judge still does not know which way the law tends, he may say, “I am not dealing with you,” out of fear of persecution; once he knows which way the law tends, he may no longer withdraw because of “do not be intimidated by any man.”

Sefer HaChinukh states that one violates “do not be intimidated” both by refraining from judging when the judge knows which way the law tends because of fear of the litigant, and by perverting the law because of that same fear. Maimonides in Laws of the Sanhedrin, chapter 22, brings Reish Lakish’s distinction and adds that when the judge is “appointed over the public,” he is “obligated to deal with them,” and the speaker understands from this that an appointed judge may not withdraw even before he knows which way the law tends. Maimonides adds that a student sitting before his rabbi who sees “merit for the poor and liability for the rich” is obligated to say so, and if he remains silent he violates “do not be intimidated by any man,” and about him it says, “Distance yourself from falsehood.”

An appointed judge and a non-appointed judge, and the reasons for recusing oneself from judgment

The speaker defines “appointed over the public” as a judge for whom this is the role and who receives salary and formal appointment, as opposed to a Torah scholar who does not serve as a judge but may be asked to sit in judgment. He notes that a responsum of the Rashba writes as something obvious the distinction between one who is appointed and one who is not appointed, and points out that there is no explicit source for this, only the reasoning of the medieval authorities (Rishonim). He presents a dispute among the medieval authorities about the reason for recusal: from the language of Maimonides and the Sifrei it sounds like fear of injury to body, property, or family, whereas from Rashi it sounds like the concern is that the violent person will threaten and force the judge to twist the law, and therefore it is better to flee at the outset so as not to fail through perverting justice.

The speaker notes that later commentaries discuss the case where both litigants are violent, in which case Rashi’s concern about distorting the law weakens, because any ruling will generate a threat from the other side. He quotes the Tumim, which explains that if the judge already knows which way the law tends, the concern that he will shift under pressure is more remote, and therefore the distinction between “knows / does not know” is clarified according to the concern for distortion of justice. He proposes as a simple explanation that the difference is between a situation where there is a formed “truth” from which one may not deviate, and a situation where refraining from judging is not yet “falsehood” but simply avoiding getting one’s head into trouble.

The Rashba’s responsum on threats and the concern over collapse of the justice system

The Rashba rules that a religious court must deal with the plaintiff and summon the defendant to come be judged before them even if the defendant intimidates the court because of his connections with the ruler, because it is possible that the threat is “nonsense.” The Rashba adds a principled reason: if they yield to threats, “everyone will do so… and the great will never be judged,” and the Torah said, “do not be intimidated by any man, for judgment belongs to God.” The speaker emphasizes that this second reason in the Rashba grounds the prohibition against yielding to threats in preserving the very existence of a legal system, and not only in the doubt whether the threat is real.

Life-threatening danger in relation to “do not be intimidated”: doubt, certainty, and the dispute among halakhic decisors

The speaker raises the question how it could be that a judge is obligated to judge even in the face of mortal danger, given that the duty to judge is not one of the three cardinal sins. He presents that many halakhic decisors interpret the phrase “lest he kill my son” in the Sifrei as an unfounded concern, so that only a real danger to life permits recusal, and therefore there is no proof that the duty of judgment overrides life-threatening danger. He notes that in Maimonides it does not seem that way simply, and cites that in the Bach, the Tumim, and Shevut Yaakov it sounds as though after the judge has “taken up the case” and knows which way the law tends, he may not remove himself “in any way whatsoever,” and the Bach asks from the Sifrei and explains that even in the case of “he will kill,” one may not withdraw.

The speaker states that most halakhic decisors resolve the difficulty by saying that at most these are remote concerns that do not rise to the level of possible life-threatening danger, while others are stringent even in possible life-threatening danger, and some understand the matter as extending even to certain life-threatening danger. He formulates the question as requiring a conceptual explanation: what is the reason that justifies self-sacrifice for a law that is not among the three cardinal prohibitions?

Public life-threatening danger: social disintegration as the death of the collective body

The speaker proposes an obvious explanation for the stringent view: if a judge recoils from threats, there will be no legal system, and the violent and powerful will not be subject to law, and a legal system in which there are people not subject to it is not a legal system. He argues that the result is the disintegration of society, and without a legal system society cannot function, and social disintegration itself is life-threatening danger even if hypothetically it will not in practice lead to the death of any particular person. He defines this as a situation in which “what dies here” is “the collective body,” and broadens the concept of life-threatening danger beyond the biological life of individuals to “the life of society.”

The speaker raises the difficulty of attributing a collective consideration to an individual case, and compares this to public policy in the era of COVID, where an instruction to the public is not judged only by the private risk. He tells a story in the name of a student about Rabbi Mordechai Eliyahu: a religious officer who has to unload weapons for soldiers on Friday night according to IDF orders using a flashlight, and Rabbi Eliyahu ruled that he should turn on a flashlight, because when an instruction spreads across a large public, the accumulated risk becomes real. He distinguishes between a quantitative difference, in which “the public is many individuals,” and a qualitative difference, in which things that are not life-threatening danger for an individual are considered life-threatening danger with respect to the public because of the type of social interest involved.

Implications for the Sabbath: police, state services, and Yeshayahu Leibowitz

The speaker argues that police can operate on the Sabbath even for tasks that are not life-threatening danger in the usual sense, such as dealing with theft, noise, public order, and patrols, because without effective police activity on the Sabbath, the Sabbath will become “open season” and society will not function. He says there is no need to rely on the claim that eventually someone will die, because even without that, social non-functioning itself is life-threatening danger. He compares this to claims by Yeshayahu Leibowitz about the need for “the foreign service of a modern state” to function on the Sabbath, because a state cannot permit itself one day a week in which “you can’t reach anyone,” and he argues that the halakhic reasoning for this can be learned from the law of “do not be intimidated by any man.”

The speaker adds that most halakhic decisors did not go in this direction because they lived in exile under the umbrella of non-Jewish rule that supplied a legal system, police, and services, and therefore they were not required to decide how a Jewish state should function halakhically on the Sabbath. He argues that when responsibility and authority were in the hands of halakhic decisors within a state, they would find the necessary permissions for essential functioning.

Possible life-threatening danger versus certain danger: IDF ethics and a person’s two “hats”

The speaker lingers on the Bach’s view, which distinguishes between possible life-threatening danger and certain life-threatening danger in the context of “do not be intimidated,” and comments that in Jewish law, usually possible life-threatening danger overrides prohibitions just like certain life-threatening danger, so the distinction is unusual and requires explanation. He gives an example from Mitla: Raful asked for a volunteer for a jeep ride in order to “draw fire,” and did not issue a suicide order, because according to IDF ethics one cannot give a “suicide order,” only request a volunteer. He explains this through a view according to which a person has two independent hats: he is “an organ in the collective,” but he is also “an individual person” with intrinsic value who is not completely subordinated to the public interest, and he describes this as an intermediate view between fascism and individualism.

From this he applies the idea as follows: one can demand that a person take on a risk of possible life-threatening danger for the sake of society because he is part of it, but a demand of certain life-threatening danger “crushes” the individual aspect and is therefore unreasonable, and he identifies with such a limit and has difficulty accepting the position that obligates even in cases of certain life-threatening danger, as implied by the Tumim and Shevut Yaakov. He suggests that in this way one can also understand the distinction between an appointed judge and one who is not appointed: from someone for whom this is the role, one can demand taking public risks, while from someone who is not appointed, one can ask but not demand.

Levels of obligation: knowing where the law tends, role, and conceptual arguments without explicit sources

The speaker describes the various distinctions as based mainly on reasoning: the Talmud’s distinction between “knows which way the law tends” and “does not know,” the distinction of the medieval authorities (Rishonim) between an appointed judge and one who is not appointed, and the balance between preserving the truth of justice and preventing risk. He suggests that there is a “range or hierarchy” that is not black-and-white, dependent on questions of role, level of risk, and whether recusal already resembles “falsehood” once the law is clear. He concludes that the principles, in his view, are that preventing social disintegration is public life-threatening danger, and that there is a limit to how much individuals can be burdened with a duty of risk in order to prevent that life-threatening danger.

Peripheral or internal to Jewish law: reasoning as a source and the distinction between types of reasoning

The speaker asks whether the consideration of public life-threatening danger is a “peripheral” consideration or one “internal to Jewish law,” and argues that in a certain sense it is peripheral because the engine is a conceptual argument that shapes interpretation of a verse like “do not be intimidated by any man,” while many halakhic decisors do not interpret it this way. He compares this to the earlier discussion about civil courts in Syria and argues that even when the matter appears in Jewish law, the basis in the Talmud is a conceptual consideration of the need for an effective legal system. He distinguishes between interpretive reasoning that reveals the meaning of the verse and constitutive reasoning that establishes a new law, as in blessings over enjoyment, and argues that where the Sages legislated by force of “do not deviate,” the reasoning becomes binding Jewish law, whereas here we are dealing with a dispute among later authorities (Acharonim) in which the choice between them rests on reasoning, and therefore a significant peripheral dimension remains.

Public service and the categorical imperative: against relying on “others to do it”

The speaker argues that religious people’s avoidance of serving in the police stems from the fact that the police operate on the Sabbath even in tasks that are not clear-cut life-threatening danger, and he proposes that by force of his view it is permitted, and even required, to operate police on the Sabbath for the sake of the proper functioning of society. He criticizes the position that relies on the fact that secular people “will do the work,” and argues that when there is no alternative, there is no possibility of living, and they would have “found permissions from every possible place,” whereas the opposition today stems from the fact that someone else is actually handling it. He adds Kant’s principle of the “categorical imperative,” according to which one should examine an action by what would happen if everyone behaved that way, and concludes that one cannot justify personal abstention on the basis that others will do it, because if everyone abstains there will be no police and no army.

The speaker mentions a debate in Tzohar between Rabbi Nehorai and Rabbi Yehuda Amichai on the question whether one should prefer Otzar Beit Din or the sale permit (heter mekhira), and describes his own argument that Rabbi Nehorai’s intuition is the categorical imperative: if everyone buys only from Otzar Beit Din, the sale permit will have no significance and the farmers will have no livelihood, and therefore there is no justification for a stringency that depends on others not being stringent. He applies this also to the example of leavened food on Passover in stores that sell actual leavened food that was sold to a non-Jew, and argues that if everyone is stringent and does not buy, the permission meant to prevent major financial loss will not help the store owner. He also cites the words of the mashgiach at Netivot Olam in Bnei Brak about someone who is stringent not to carry where there is an eruv but lets his wife push the stroller, and interprets this as a rejection of a kind of “piety” that rests on others bearing the action.

Conclusion and framing the connection to peripheries

The speaker concludes that the considerations he presented, both public life-threatening danger and the categorical imperative, are peripheral considerations of the kind of conceptual reasoning that have no simple and binding halakhic source, but they shape his reading of sources such as “do not be intimidated by any man” and his conclusions regarding the functioning of a modern state on the Sabbath. He argues that the discussion demonstrates how conceptual reasoning and realistic conceptions enter into Jewish law to the point that it becomes difficult to distinguish between “Jewish law” and “periphery,” and he attributes the earlier decisors’ difficulty in seeing this to the condition of exile, in which an external governmental framework actually solved the problems of functioning. He ends the lecture by pausing for questions and asks that people not applaud during a Torah lecture.

We’re in a series dealing with the peripheral zones of Jewish law, different categories of periphery, peripheries to Jewish law. Hello? Yes. Yitzhak, you just called me now; maybe it was by mistake. Okay. In any case, we’re getting close to the end of this series on the peripheries, and I still want to touch on a few more topics. Today I’d like at least to begin, and I hope I’ll have time, two topics. The first topic I want to discuss is really a kind of continuation of our discussion about secular courts. In the discussion about resorting to the courts of the State of Israel, I said that basically the straightforward solution to this impossible dilemma is to put the conflict, or the distress we’re in, on the table and not try to get around it. Meaning: to say that on the one hand, it seems that in a straightforward interpretation of the sources of Jewish law, this is forbidden; these are secular courts, or gentile courts, maybe even that too, but certainly secular ones. And on the other hand, we have no option. We have no option of observing this Jewish law, because we cannot allow ourselves to live in a society without an effective legal system. And then I tried to justify, from a few directions, this kind of consideration as a legitimate consideration even for someone committed to Jewish law. On the face of it, it sounds very outrageous; I already mentioned that people from YU, at some conference where I presented this thesis, got very, very angry at the approach. But I tried to show in various ways how one can nevertheless accept this within the theory of Jewish law, and that really brought us into this seam line between the periphery and Jewish law: how exactly we maneuver and bring peripheral considerations into halakhic decision-making. The foundation that created the conflict and caused us to need this sort of consideration, at least in my opinion, was the inability or unwillingness to accept a society without an effective legal system. Now, how do you justify that unwillingness? Seemingly, “there is no wisdom or understanding against God,” and if that’s what Jewish law says, then that’s what Jewish law says—what can you do? If it doesn’t work, it doesn’t work; if society falls apart, let it fall apart. In other words, such a society deserves to fall apart if it sets up an Asherah tree next to the altar, yes? Like someone who appoints an unfit judge. So I said this is a kind of life-and-death consideration, because the disintegration of society is viewed in a number of places already by the Sages, and afterward by the halakhic decisors, as some kind of life-and-death consideration. And this specific point is what I want to expand on today, and afterward I’ll also comment on the question whether this is really a peripheral consideration or actually a completely ordinary internal-halakhic consideration. The answer here is not simple. So I want to discuss the prohibition of “do not be intimidated by any man,” and I’ll share here an article I wrote once, and we can see some sources there. All right. Negative commandment 276 in Maimonides, in Maimonides’ Book of Commandments—the 276th commandment is that the judge is warned not to fear a harmful person, one who threatens and speaks arrogantly, and not to withhold from him the law and the truth. The judge is warned not to fear a person who harms him and opens his mouth against him and threatens him, and the judge is warned to be careful not to withhold from him the true judgment. To fear him and not give him the true judgment—but he is obligated to render judgment and not pay attention to what damage may come upon him from that person. Don’t completely ignore his threats, the dangers facing you; you must fulfill your role. You have to rule true judgment, even regarding such a person. As He, exalted be He, said: “Do not be intimidated by any man.” In other words, the source is the verse in Deuteronomy: “Do not be intimidated by any man,” and the language of the Sifrei, the rabbinic midrash, is: “Do not be intimidated by any man”—lest you say: I am afraid of So-and-so lest he kill me or my son, lest he set fire to my grain heap, or lest he cut down my plantings; Scripture therefore says: “Do not be intimidated by any man.” So this verse is the source; the halakhic midrash in the Sifrei is basically showing that this law emerges from that source, and that is what Maimonides rules. The judge is warned that he must always render the true judgment, despite dangers facing him and despite a person threatening his property, his body, and so on. The source is in tractate Sanhedrin 6b. The Talmud says as follows—I’m only reading part of it: as it is stated, “The beginning of strife is like letting out water; before the quarrel breaks out, abandon it.” The intention is to make a compromise. Before the quarrel has broken out, you can abandon it. Once the quarrel has broken out, you can no longer abandon it. Once the claims have already been presented, once you already have a halakhic stance, then there is no longer room for compromise. By the way, there’s a dispute there; I brought only one opinion. And Reish Lakish said: If two people come to judgment, one weak and one strong, before you hear their words—from that same verse, “The beginning of strife is like letting out water”—before you hear their words, or after you hear their words but you do not yet know to which side the law inclines, you may say to them: I will not deal with you, lest the strong one be found liable and then the strong one will pursue him. Once you have heard their words and know to which side the law inclines, you may not say: I will not deal with you, as it is stated: “Do not be intimidated by any man.” Here the Talmud distinguishes, Reish Lakish distinguishes, between two situations. If I haven’t yet heard the litigants at all, and I know one of them is the local mafia boss, then I’ll walk away—I don’t want to hear it, I don’t have time right now to judge, I don’t know, I’m going on a trip. I want to evade this matter. Reish Lakish says I can. Even if I heard their words and they already opened their claims before me, but I still haven’t formed a position—meaning I still don’t know which of them is right—even then I can still leave. But, says Reish Lakish, if I’ve already heard their words and I know where the law is leaning, and I’ve reached my conclusion, then I can no longer walk away, even though there is danger that the strong one will pursue me. I cannot leave, as it says: “Do not be intimidated by any man.” Okay? That’s what the Talmud says. Meaning, this commandment—the commandment we read in Maimonides, number 276, warning the judge not to fear—the Talmud qualifies it. And by the way, this appears in practice in Maimonides and in all the decisors. The Talmud qualifies it; the Talmud says this is only after I have heard the words of the litigants and I know to which side the law inclines. Only then am I obligated to decide the case, and I have no permission to fear or worry about threats and dangers facing me. But as long as I have no position of my own, and I haven’t heard their words at all, or I heard them but it still isn’t clear to me who is right, in such a situation I can abandon it. Because with threats, I’m allowed to abandon it in a situation of threats. The Sefer HaChinukh adds that one violates “do not be intimidated” in two ways. One who violates this and does not want to judge, when he knows to which side the law inclines, as we said, because he fears the litigant, violates this prohibition. If he does not want to judge even though he already knows where the law is leaning, because he is afraid, he has violated this prohibition of “do not be intimidated by any man.” And if he perverts the judgment as well because of his fear—that is, he does judge, but not a true judgment; he judges in favor of the strong person even though according to the law he did not deserve it—then he violates this prohibition as well. Whether he refrains from judging because of fear, or whether he judges but twists the law because of fear—in any case, once fear affects me, I violate this prohibition. And Maimonides indeed rules this way in Laws of the Sanhedrin, chapter 22, though he adds some more details. If two come before you for judgment, one weak and one strong—by the way, “one weak and one strong” is interesting, because what happens when both are strong? The decisors say that where both are strong, that’s a different matter, because here I have no concern that I’ll bend the judgment, since whichever way I rule, danger is expected from the other side. Okay, but let’s leave that aside for the moment. Before you hear their words, or after you hear their words and you do not know to which side the law inclines, you may say to them: I will not deal with you, lest the strong one be found liable and then pursue the judge. But once you hear their words and know to which side the law inclines, you may not say: I will not deal with you, as it says: “Do not be intimidated by any man,” lest you say: This man is wicked; perhaps he will kill my son, perhaps he will set fire to my grain heap, perhaps he will cut down my plantings, perhaps he will cut down my plantings. And if he was appointed over the public, he is obligated to deal with them. That is an addition of Maimonides; we hadn’t yet seen that until now. What’s the difference? What’s the difference between someone appointed over the public and someone else? First of all, the definitions: “appointed over the public” means the judge appointed in that place—that’s his job, he gets paid for it, it’s his role, yes, he’s the city judge or the regional judge. In contrast, there are people who are Torah scholars; they do not serve as judges, but if there are two people and a dispute breaks out between them, they can certainly approach Torah scholars and ask them to sit in judgment and hear their case. Not only can they; there is even a commandment upon these judges to agree and judge. But Maimonides says there is a difference regarding “do not be intimidated by any man” between these two kinds of judges. What exactly is the difference? So regarding a judge not appointed over the public, just an ordinary Torah scholar, with respect to that Torah scholar, everything we saw in the Talmud applies: if I know to which side the law inclines, I am forbidden to withdraw; as long as I don’t know, I may withdraw. Maimonides says: “And if he was appointed over the public, he is obligated to deal with them.” What does that mean? Since after he knows where the law inclines, even if he was not appointed over the public he is obligated to deal with them, clearly Maimonides means here that if he is appointed over the public, he is obligated to deal with them even though he still doesn’t know to which side the law inclines. He cannot escape this judgment in any situation if he is an appointed judge. If he is not an appointed judge, then as long as he doesn’t know where the law inclines he can leave; once he already knows, he’s stuck. An appointed judge cannot withdraw in any way. By the way, a responsum of Rashba says the same thing—it’s a view of the medieval authorities; it’s only a logical argument, I don’t know a source for it—but several medieval authorities write this as something obvious. And similarly, if a student was sitting before his teacher and saw merit for the poor man and liability for the rich man, and remained silent, he violates “do not be intimidated by any man”; and regarding this it is said: “Distance yourself from falsehood.” Yes—even though he is silent, he isn’t lying, but “distance yourself from falsehood” means not only don’t lie, but also don’t swallow the truth—say it. Fine. That’s just an extension of this matter. But for our purposes, what we see in Maimonides is that there is a difference between an appointed judge and a judge who is not appointed. Now, what is basically the reason the judge wants to flee? On that too the medieval authorities disagree. In the Sifrei, which Maimonides brings, and also in Maimonides’ own wording, it seems the judge fears for his body, his property, or his family; that is why he wants to flee. And then they prohibit him where it is prohibited and permit him where it is permitted. Rashi there in Sanhedrin writes: this is the correct text—lest the strong one be found liable and then pursue him—he will pursue the judge to reverse the judgment. According to Rashi, it sounds like the judge wants to flee the case not because he is afraid for himself or his property, but because he fears that the litigant, because he is so violent, will influence him, threaten him by force, and force him to twist the judgment. So he says: instead of judging and then twisting the judgment, better that I run away, evade, and not hear the case at all. And to that it says: don’t evade it, you must render a true judgment and not be concerned. So there’s a difference here between Rashi and Maimonides, and that’s what I noted earlier: what happens when there are two violent litigants—sorry, litigants, not judges. In that situation there’s no concern that I will twist the judgment. So clearly, in that case, if I want to flee, it’s only for Maimonides’ reason—that I fear for my life, because whichever way I rule, the one I rule against will harm me. But Rashi’s concern—that if I don’t flee and I judge the case, maybe they’ll force me to pervert justice—doesn’t apply here. Both are violent. So the commentators discuss that here. In any case, what is the difference between knowing to which side the law inclines and not knowing? For example, the Tumim writes that if he knows to which side the law inclines, then there is no concern that he will move because of pressure; he follows Rashi. In a place where he doesn’t know to which side the law inclines, if he enters the case under this fear, then there is some concern that he will twist the judgment. But if he already knows to which side the law inclines, and he has a position, then the concern that he will twist the judgment is remote. So Rashi’s concern doesn’t exist there; Maimonides’ concern certainly still exists. Fine, but in the end it seems to me that the simple explanation is not that. The difference between knowing and not knowing to which side the law inclines is probably something along the lines that if he knows where the law inclines, then that is the truth, and he may not deviate from the truth. As long as he does not know where the law inclines, he is not doing anything false; he simply isn’t sticking his head into that trouble, so he evades it. Where he knows where the law inclines and nevertheless doesn’t judge, there is already some element of perverting justice, and therefore I am forbidden to do that. That’s why there is a difference between knowing and not knowing where the law inclines. According to this, why in the case of an appointed judge do we not make this distinction? Even when he does not know where the law inclines, he must judge. Here one could perhaps say: because that’s what he gets paid for. But he gets paid—that’s his appointment, he was appointed for that; he cannot evade it. Who will judge here if not you? Some of the medieval authorities want to claim that an appointed judge will also likely receive the protection of society. A private individual can be threatened and harmed, but when you threaten a judge—as we know nowadays, yes?—when you threaten a judge, it’s much more complicated than threatening a private person. If you threaten a judge, then the police get mobilized and protect him, and it’s not so simple to mess with a judge. Therefore they demand that the judge stand firm, because he is not really in danger, because society is supposed to protect him, and society will protect him; and if he is an appointed judge—meaning, that’s his role—then he will receive protection. Some decisors want to claim that this is basically the difference between an appointed and non-appointed judge, as stated by Maimonides and Rashba. Okay? But it seems to me that the more plausible explanation is another explanation. Here is that responsum of Rashba, which says the same thing. Look: strictly according to the law, if there are assets belonging to Shimon in Monzon—the question there was where the case should be judged. There was some violent person who wanted the trial to be held where he lived, while the law says it should be held in the place of the other litigant. So Rashba says: strictly according to the law, as long as Shimon has property in Monzon, the court must deal with Reuven and send to Shimon to come litigate with his fellow litigant before them. And if because he frightened them on account of the government official—because he is threatening, through his ties with the non-Jewish official, to harm them if they force him to come litigate elsewhere—this does not exempt the court from dealing with the plaintiff. For if he frightened them to act unlawfully with him, perhaps he does not actually have the power and is only frightening them with empty words. Who says? He threatens—so what? Every time someone threatens me, I should surrender? Who says he can carry it out? He threatens; he’s trying. And furthermore, if so, then everyone would do this, for there is no one who cannot cause damage. And if so, the great people would never be judged, and the Torah said: “Do not be intimidated by any man, for the judgment is God’s.” Meaning, there are two reasons here. One reason is maybe the threat isn’t real; you need a real basis to walk away from judgment, and a threat by itself isn’t a real basis. And this first reason seems to imply that if the threat really is real, then I actually can withdraw. In other words, Rashba’s explanation here is that because a threat—who knows, maybe it’s just a threat. But according to this it comes out that if the threat really is real—if in my assessment it is a genuine threat—then yes, I may withdraw. The second reason says more than that. The second reason says that if we give in to threats, even serious ones, then there will be no just legal system—the whole thing falls apart—and therefore we are forbidden to give in to those threats. Now the question is: how far does that go? In the face of what dangers do I have to put myself in to judge true judgment? I’ll go back to the question I asked earlier: what is the difference between knowing, between an appointed judge and a judge not appointed? The plain meaning of the Sifrei that Maimonides brings, and also of Maimonides’ own wording, is that this goes as far as actual life-and-death danger. “Do not be intimidated by any man,” says the Sifrei—the same Sifrei Maimonides mentions—“lest you say: I fear So-and-so lest he kill my son, or lest he set fire to my grain heap, or lest he cut down my plantings; Scripture therefore says: ‘Do not be intimidated by any man, for the judgment is God’s.’” All right, so it seems this really means “lest he kill my son”—in other words, we’re speaking here even of actual danger to life. However, most decisors, or very many decisors, claim that no—it does not override life-and-death danger, and what is written here is “lest.” “Lest he kill my son”—meaning, basically, he threatens to kill my son, and I’ve decided to be concerned, but who says there is any real basis for that concern? As we saw above in Rashba’s responsum, Rashba says: just because he threatens doesn’t mean he’ll carry it out, and therefore it is only “lest he kill my son.” That is a very weak basis, and then anyone could withdraw from judgment. There has to be a real concern for life for you to be able to withdraw. According to that interpretation, then one cannot learn from the Sifrei that the duty to judge overrides life-and-death danger. Because the claim is that basically—who says there is life-and-death danger here at all? Okay? But in Maimonides it doesn’t look that way. Because Maimonides writes “lest he kill my son” without qualification, and simply means any such concern whatsoever—“do not be intimidated by any man”; you are forbidden to withdraw. And indeed, in the Tumim and also in the Bach, they argue that this applies even where there is danger to life. The Bach challenged from the Sifrei, where it is explained that even if he will kill, nevertheless one may not refrain from judgment. But once he has already undertaken the case, even our master Rabbeinu Yeruham agrees—Heaven forbid that because of fear or some terror he should withdraw from judgment; he is obligated to judge. And this is what the Sifrei is talking about: even if he kills, one may not withdraw. He explains the Sifrei to mean that even if there is actual danger to life, once you have already undertaken the case, you cannot withdraw. Meaning, after you have already begun to judge. That is, once he has already undertaken the case, and then there is no difficulty at all. And so too I found in a responsum of Shevut Yaakov, that after he knows where the law inclines, he may not withdraw because of fear in any circumstance. “In any circumstance” means including danger to life. Okay? And so too writes the Bach, and there is some dispute there whether this means doubtful danger to life or certain danger to life. Most decisors want to say that even those who are stringent here are speaking only about doubtful danger to life, not certain danger to life. But here, plainly, it says “in any circumstance.” “In any circumstance” means including actual danger to life. And that is also the view in Shevut Yaakov. The question is how we can explain this claim. After all, the duty to judge is not one of the three severe transgressions that are not overridden by danger to life. So the question is: how can we explain the obligation imposed on the judge to judge here, and to take risks—and certain danger to life is far more than just risk. Where do we find such a thing, that something like this is not set aside because of danger to life? There are only three severe transgressions. True, we have already seen in previous sessions that at least according to Rashi, theft and interpersonal prohibitions also are not really overridden by danger to life, but I explained there that this is not because of their severity, but because of their type. Here, I think, it is something else. What is the idea here? So as I said before, because of this question, most decisors indeed want to claim that if it is danger to life, you are not obligated. And their emphasis is on the word “lest”—“lest he kill my son.” You are inventing imaginary fears in order not to take risks—distant risks that don’t really amount to doubtful danger to life you do have to take. Don’t allow yourself to evade judgment. But where there is doubtful danger to life, and certainly definite danger to life, you may not be required to do so. That is the view of most decisors. As I said, there are some decisors who claim that even in doubtful danger to life you still have to judge, but not in definite danger to life. In the Bach and the Tumim—sorry, and in Shevut Yaakov that I just brought—it sounds as if even in definite danger to life, you still have to judge. Now we need to understand how this works. As I said, this is not one of the three severe transgressions. So how do those who say that even with danger to life you must give your life explain it? It seems to me that the natural explanation for this claim is what I said regarding secular courts. And here I return to the starting point. My claim is that the assumption of the Talmud or the decisors is that if a person gives in to threats, then we have no legal system. Because basically the violent people, or the important people, the wealthy men, the powerful people—they are not subject to the law. They can do whatever they want, abuse whomever they want. That is not a legal system. A legal system in which there are people who are not subject to it is not a legal system. And therefore, even where the judge enters into danger to life, he must take the risk and judge. Why? Because not judging is itself danger to life, because society will fall apart. Without a legal system, society cannot function, and when society disintegrates, that is called danger to life. By the way, there are many proofs for this—I won’t go into them all now—but there are many proofs that when things happen in relation to society, they undergo a kind of upgrade in their significance. Meaning, even if no one will die as a result, but society will not manage to function, that is called danger to life. It seems to me I mentioned this also regarding secular courts. My claim is that even if, for the sake of argument, the dysfunction of the legal system in a given society would not lead to mortal danger, it still doesn’t matter. It is still considered danger to life. It is considered danger to life because what dies here is not a private individual losing his soul, but the collective body disintegrating. In other words, it is the life of society that is in danger here, not the biological life of one person or another. And such a thing too is called danger to life. And therefore that justifies demanding that a person give his life—meaning, even enter into a situation of danger to life—because if he withdraws from judging, that too is danger to life. Now of course the question always arises: okay, but if I do this alone in one case, that still doesn’t make the social system collapse. So how can they demand of me, in one specific case, to sit and judge? Fine—the other brave judges will sit and judge, and I’ll bow out here. That is always the question of collective dangers or collective considerations. Yes—even in our own time, the coronavirus era, a person takes all kinds of risks. Fine, because he’s young, and for him personally the risk is small; nothing will happen to him even if he catches COVID. And you know what, he may even be careful not to infect others. But he doesn’t care about getting infected. Fine? Still, it may be that there is no place for that consideration, because as a public directive you cannot issue such a directive. Meaning, public conduct cannot function that way. I think I once mentioned that some student of mine wrote an article about public transportation on the Sabbath. Actually not on the Sabbath—public transportation on weekdays. He argued that using private cars on weekdays should be forbidden, not on the Sabbath, because of danger to life, because of the casualties. And he brought a story there about Rabbi Mordechai Eliyahu. Once an army officer came to him and asked him: in the army, the rule was that when soldiers come down from guard duty, the officer is supposed to unload their weapons and make sure there isn’t a bullet left in the chamber. Now at night you can do this by inserting a finger, but army procedures say to use a flashlight in addition to inserting a finger—in other words, to look into the chamber and make sure there isn’t a bullet there. What do you do on a Friday night? A guard shift ends on Friday night, the officer is religious, he needs to unload the soldiers’ weapons. Is he allowed to turn on a flashlight? Those are the army procedures. Is he allowed to turn on a flashlight? The risk is negligible. There is no doubt about it—the risk is simply negligible. There is absolutely no justification in the world to permit violating the Sabbath for a risk at that level. Put in your finger, check the chamber carefully, and that’s it. Do it responsibly and everything will be fine. Rabbi Eliyahu told him that he should turn on a flashlight. Why? He said to him—true, the risk is, I don’t know exactly what he told him; I’m reconstructing what he said, but I think this is the consideration behind it. The claim is basically that if one person came to ask me what to do in such a situation, I would tell him: don’t turn on a flashlight; check it with your fingers. Put your fingers into the chamber and see. But once such a ruling is issued—and Rabbi Eliyahu’s rulings generally spread, and all in all he was a public figure—then once such a ruling reaches and spreads among all the officers in the army, then basically, I don’t know, a thousand officers—I don’t know how many officers there are or how many religious officers there are—won’t turn on flashlights every Sabbath when unloading weapons. Now multiply the chance that something like this will happen to one individual soldier or one individual officer by the number of officers times the number of Sabbaths, and you get to the point where, all in all, there’s a reasonable chance that someone will eventually get hurt. And therefore when we move to a public policy, the weight we give to each such consideration changes. If a private individual asked me this question, there is no doubt that he would be forbidden to turn on a flashlight. But when you set public policy, you are in effect speaking to hundreds and thousands of people. When you speak to hundreds and thousands of people, then statistically, multiply the small probability that something will happen by the number of people times the number of cases, and suddenly the risk is not so small. And therefore, in such a situation, Rabbi Eliyahu said to turn on a flashlight. But I discussed this—now I remember—I discussed it in the series where I spoke about the individual and the public. And there I wanted to claim that this is the simple level of the relationship between individual and public, the quantitative level, as I called it. The public is simply many individuals. So when there is a small risk for the individual, the risk in relation to the public is simply multiplied; it is larger. That is not a qualitative difference between individual and public. And there I wanted to argue that there are also qualitative differences that do not arise from the quantitative difference, but also from a difference in how we relate to them. In our case, I actually want to make the second claim. I want to argue that usually when people explain such a thing, they say: if there is no effective legal system, then eventually someone will also die. In the end, it also comes to danger to life. And of course, that is not a claim I reject, because when there is no effective legal system, in extreme cases people also act violently and there are murderers. In other words, if we don’t deal with criminals, some criminals are murderers too. So it can certainly also get to that point. I only want to claim not that this consideration is wrong, but that it is inferior. I want to argue that even if hypothetically there were no danger whatsoever to any person’s life, still as a judge you must enter that danger and judge. Why? Because social disintegration—not because it eventually leads to danger to human life, but social disintegration itself—is considered like death. Death of society, yes? The death of society, the disintegration of the social body. The social body dies. Therefore in this case it is not a quantitative relation. It is not because there is a small chance for the individual and I need to multiply it by the number of people in society. That’s not the point; I’m not talking here about increasing the risk. I’m talking about a different kind of relation. With regard to the public, something that for the individual would not be called danger to life is, for the public, called danger to life. Not because the risk increases, but because the kinds of things considered danger to life are broader when we are speaking about the public. One implication of this thesis is, for example, operating the police on the Sabbath, or even hospitals. Hospitals are more delicate, but let’s talk about the police. Operating the police on the Sabbath—generally, let’s say until recent years, it was very rare to find a fully observant religious policeman. Really religious, not traditional or something like that—rare. Policemen, from people I know who are somewhat familiar with the issue, were a rare phenomenon. Now in recent years they’ve been trying to work on this; there is a study hall for the police, with Rabbi Rami Berachyahu who headed it—I don’t know if he still does—the police rabbi. And in recent years they have been trying to bring religious policemen into the police. Why did religious people really avoid serving in the police? Because of this problem. In the end, when police officers work on the Sabbath, in a situation where it comes to save lives and there is danger to life, there is no problem. A religious person, just as we do this in the army, can do this in the police as well. The problem is that the police operate on the Sabbath not only in situations of danger to life. They also catch thieves. They also quiet down noisy neighbors on the Sabbath, I don’t know, all kinds of things. They also do ordinary patrols, or I don’t know, traffic enforcement, or all kinds of things of that sort, where let’s say it’s not at all clear that there are life-saving grounds to violate the Sabbath in that context. Therefore religious people customarily—or at least used to—avoid service in the police. I really don’t know what the policy is; I would need to ask Rabbi Berachyahu what the policy is, what exactly they propose to religious policemen regarding those missions that do not involve danger to life. Because in an article I argued, after discussing “do not be intimidated by any man,” that one may operate the police on the Sabbath even for missions that do not require danger to life. A policeman can drive on the Sabbath to a house where there is noise from the neighbors in order to quiet the neighbors, and all police missions. Why? Because of this consideration of “do not be intimidated by any man.” That is my claim—that this is what underlies this consideration as well. Why? What’s the claim? Think, for example, if there weren’t—let’s say all the Jewish citizens of the State of Israel were religious. No one would enlist in the police. Or they would enlist in the police but only go out for missions of danger to life. Let’s say we don’t have Sabbath gentiles and we don’t have indirect solutions. Fine? So we go out only for missions of danger to life. What would happen in such a situation? Obviously thieves would celebrate on Sabbaths, because no one goes out for theft; noise, riots, social disorder, abuse, whatever you want—all the tasks the police deal with, Sabbath would be lawless. What would happen a bit later? Not a single cat would stay living here. Everyone would move to Australia. You can’t live in such a place. You can’t live in a place where there is no effective police activity even for tasks that are not danger to life—just for normal life. You can’t. Once the police operate only for danger-to-life purposes, society will not function. And the Sabbath will become an abandoned zone, meaning a time when everyone does whatever he wants. And I’m not talking now about murder; for murder the police will act to prevent danger to life. I’m talking about the other prosaic, everyday tasks. Therefore my claim is that the permission to operate the police does not depend on danger-to-life situations in their ordinary sense, where a person is in mortal danger. Again: if there is no effective police force, it also gets to that point. Not that that argument is wrong; I’m just saying it is unnecessary. It is unnecessary because I think the police can be operated on the basis of the same consideration by which I require the judge to put himself at risk and judge in every case, and not be afraid even if they threaten to murder him or his son or whoever. He may not give in. He may not give in because in the end the alternative is also some kind of death. There is danger to life if you do not judge, because society falls apart. And the same is true when the police do not function. And therefore, by the way, I think this somewhat resembles the famous claims of Yeshayahu Leibowitz about Sabbath solutions for a modern state. How exactly is the foreign service of a modern state supposed to function on the Sabbath? What, on the Sabbath anyone in the world trying to reach the State of Israel is supposed to encounter no answer? No response? No one to contact? I’m not talking about danger-to-life missions. Just ordinary things—states speak with one another, there is some sort of international conduct. I think—you know, I’ve never been foreign minister—but I think a state cannot function if there is one day a week when no one from it can be reached. It doesn’t function. So what, let it not function? There is no wisdom or understanding against God—what do you mean? Sabbath violation. I say no—because if a state doesn’t function, or a society doesn’t function, that has the status of danger to life. I want to argue that what Yeshayahu Leibowitz said there was right. He didn’t give the reasoning, but I think his logic is correct. The reasoning comes from here. One can learn it from the law of “do not be intimidated by any man.” In my opinion, that is the halakhic source one can bring for this matter. And I think that once this is understood, then true, most decisors did not go in this direction. Most decisors found it difficult—how can you impose upon the judge an obligation to take mortal risks? This is not one of the three severe transgressions. Therefore they explained it differently. And what I want to claim is that once you understand that this too is danger to life, then there is no real conflict here. I think many decisors, if the matter were presented to them in this way, would agree. Like many times you find with the Beit Yosef, for example, or with other decisors—if he had seen my arguments, he would have agreed with me. And therefore I’m not troubled by the fact that most decisors go against me. I think here too it is so. People are just very used to thinking in simple, standard patterns: there is danger to life, there are three severe transgressions, and that’s all. But there is some principle here—and now I come to the question whether this is meta-halakhah, whether it is a peripheral category or not; I’ll comment on that in a moment—but there is some principle here that I think has sources in the Talmud as well. True, the source is “do not be intimidated,” so they’ll tell me: fine, but most decisors do not interpret “do not be intimidated” that way. So what is your source? I say: no, most decisors do not interpret “do not be intimidated” this way because they were not aware of this interpretive possibility, in my opinion. But the fact is that Shevut Yaakov and the Tumim and the Bach do explain it this way, and I think this is definitely a source on which I would also build permission for the police and all essential services. Again, one has to check what is essential and what is not, but what is essential for the proper functioning of a society and a state cannot be shut down on the Sabbath. It is simply unreasonable. Today it’s very easy for us to be righteous in the study hall and so on, and topple a government over the fact that the Phantoms arrive on the Sabbath, because we know there are gentiles who will handle it. By gentiles I mean secular Jews, of course. In other words, there are people who will pull the chestnuts out of the fire for us. They’ll be the wicked ones; I’ll shout at them that they’re wicked, but they’ll do the job and everything will be fine. If they weren’t here, then I would bring the Phantoms on the Sabbath. Again, not necessarily that they need to be brought on the Sabbath; I’m just using that as a metaphor. I would operate the foreign service and the police and everything—it’s obvious. No one can live in such a situation. Then all these permissions would be found from every possible source. It’s just that most decisors simply did not live in a situation where there is a state that has to function. They lived in a situation where there is an envelope of gentiles taking care of them—a government and police and legal courts and so forth—which handles things and pulls the chestnuts out of the fire for them. In this new situation, where responsibility and authority were given to decisors to determine what to do here in a state, I have not the slightest doubt that they would all agree with what I’m saying here. No doubt. The fact that people today do not agree is simply because there are secular people who ignore them and do the work anyway. Otherwise it would simply be impossible to live here. In any case, I’m sure this logic is correct. Now I just want to add one more comment. As I said, some decisors—the Bach, for example—argue that this applies only in doubtful danger to life, not in certain danger to life. And that is a very interesting claim, and I discussed it in the series on the individual and the public. Because overall in Jewish law we do not find such a distinction. In other words, the transgressions that are overridden by danger to life are also overridden by doubtful danger to life. There is no difference. Danger to life overrides the Sabbath, and doubtful danger to life also overrides the Sabbath. Not just the Sabbath—all prohibitions. The three severe transgressions, of course, are not overridden in cases of doubtful danger to life and are also not overridden in cases of certain danger to life. Where do we find in Jewish law a distinction between doubtful danger to life and certain danger to life? Why here, in “do not be intimidated by any man,” does the Bach say that in doubtful danger to life you may not withdraw, but in certain danger to life you may? It seems to me that the root of the matter is—and I brought there in that series the example from the Mitla Pass. In the Mitla Pass paratroop battle there was that driver, Yehuda Kendror—Yehuda Kendror—because they parachuted there and ran into an Egyptian ambush, and they couldn’t—Rafael Eitan was the commander in the field—they couldn’t identify where the Egyptians were hiding, where the fire was coming from. He needed someone to drive a jeep and draw fire, and then once they saw where the fire was coming from, they could identify the sources of fire, where the Egyptians were hiding, and try to deal with it. So he asked for a volunteer, and there was a volunteer there named Yehuda Kendror, who later received a citation for this; he volunteered. That was a certain death mission. Meaning, you drive in a jeep, you have no protection or anything, you simply drive in order to be shot at. And hundreds of people are shooting at you; it’s not one person shooting at you. You simply die. It’s a suicide mission. So he asked for a volunteer because he had to send someone in order to save everyone else; there was no choice. So Yehuda Kendror volunteered. By the way, he was only severely wounded and only after two or three months did he die. That itself is a miracle. But this was a suicide mission. The point is that Rafael Eitan did not order anyone to do it; he asked for a volunteer. The question is why. I think the army’s ethics—again, I don’t remember the exact clauses—but this is clearly part of the army’s ethical code: you do not give a suicide order to any soldier, even in war. You cannot give such an order. You can, of course—well, not can, but this is what happens in war—order people to take risks, and there is a chance they may lose their lives. But an order to take a step that is clearly suicide—that you cannot give. You can only ask for a volunteer. Why? What’s the difference? It seems to me that the intuition behind this distinction is very compelling. But how do we conceptualize it? What is the explanation? It seems to me the explanation is this. My ability to ask a person to take risks for society is because he himself is part of society. Clearly, for example, I amputate a hand to save the body, right? Because the hand is part of the body and gives itself up in order to save the body. When I see a person who is a member of this group, this collective, this society, then when I ask him to take risks, to be a soldier, to fight in a war, I am basically saying: listen, of course we share the burden among ourselves, every soldier takes some risk, and yes, you may pay with your life, but what can we do—otherwise all of us will die. You are part of this organism called the public. And since you are part of it, you are supposed to take risks to your life in order to save the public. What happens if I send a person on a suicide mission? What happens there, it seems to me—why can’t I give such an order? What is the difference between that and doubtful danger to life? Because a person is not only an organ in the collective. He also has an individual status. And there I discussed that this is an intermediate conception between fascism, which sees all individuals as oil on the wheels of the revolution, and individualism, which basically says that society exists to serve the individual, and what matters is only the individual. I think that in Jewish law one can see—at least in many halakhic sources—a conception that sees a combined or complex picture. Each person wears two hats. He has the hat of being an organ in the collective, but he also has the hat of being an individual person standing on his own. And neither hat is subordinated to the other. Not like fascism, which subordinates the individual hat to the collective hat, and not like individualism, which does the opposite. The combined conception says: these are two independent hats. Neither is subordinate to the other; both are equally important. Therefore, when I tell a person to take a doubtful life-risk, I am saying: listen, you are taking a doubtful life-risk, but by doing that you are preventing the certain death of society, because if we don’t fight, none of us will be here. Okay, that I can demand because of his collective hat. But if I demand of him a suicide mission, then I am crushing his individual aspect. He also has some standing not just as oil on the wheels of the revolution, not just as an organ in the collective—he also has some independent standing. And that is not subordinate to his standing as an organ in the collective; it has independent status. You cannot crush that entirely because of the interests of the collective. That is a fascist conception, and that one may not adopt. I think that is also why in the army’s ethical code one cannot give an order to carry out a suicide operation, even though it is necessary in order to win the war or the battle. You cannot do it because a person cannot be seen by me solely as a cog in the machine. He also has some standing as an individual person standing on his own. He has value in himself, not only as an organ or cog in the collective. Therefore, in a place where I completely crush his individual aspect, there is no such thing. We are not willing to crush the individual aspect completely. Doubtful danger to life—yes. Certain danger to life—no. And I think this is also the basis for the Bach’s distinction regarding the judge. What do we expect from the judge? Exactly the same thing. Like a soldier in war. We are basically saying to him: listen, you are responsible for the functioning and effectiveness of the legal system. Without that, society doesn’t function. So this is in fact danger to life, as I explained earlier. Fine, very good. But when the judge takes a risk, this is doubtful danger to life. You too are part of society. You must take risks because you and all of us together will go to destruction if you don’t do this. So one can demand of you to take risks. One cannot demand of you to commit suicide. If it is certain danger to life, then with all due respect—you, as a judge, want to run away to Australia. That is your right; you are an individual human being. It cannot be that we completely subordinate your individual aspect to the collective aspect. You are not only an organ in the collective; you are also a person with individual standing. Therefore, exactly like in army ethics, it seems to me that this is the meaning of the Bach’s ruling. And indeed, in Shevut Yaakov and the Tumim, who say that even in certain danger to life one can require the judge to take that risk—I find that very hard to accept. If I am right that this is the explanation, then I very much identify with the Bach. I find it very difficult to accept this extreme approach of the Tumim and Shevut Yaakov, that at any cost he must judge, even in certain danger to life. That is really what I called earlier fascism. Again, not fascism in the low and ugly sense, but still there is some kind of brutal subordination of the individual person to the collective interest. And I think there is a limit. It is like giving a soldier a suicide order, sending him out on a suicide mission. I think that is not reasonable to allow, and therefore here too, in my opinion, it is not reasonable to allow. Now we might also understand why there is a difference, as Rashba and Maimonides say several times, between an appointed judge and a non-appointed judge. When the judge is an appointed judge, this is his job. Meaning, he is the one responsible for the matter. A non-appointed judge—true, he is a Torah scholar, he can judge, but he is not obligated. So I say: from such a person you cannot demand even that he take a doubtful risk. Suppose someone who is not a soldier now, okay? The army is fighting, but there are people who are not soldiers and are occupied with their own affairs. Now a situation arises where I, as a civilian, could save the battle by taking a risk. Okay, doubtful danger to life, not certain danger to life. Must I do this? Not at all certain. A soldier—yes; a civilian—no. Why not? Because right now it is not my role. If you do it, you’ll get a citation; you deserve much appreciation. But one cannot demand it of you. One can demand it from whoever is appointed to do it, from whoever it is whose role this is—that is, the soldier. Therefore, by the way, that is exactly the point in all these arguments—usually between right and left, though I don’t see why it has to be specifically left-right—whether it makes sense to endanger soldiers in order to save civilians. Such arguments come up all the time: you are paying with soldiers’ lives, therefore you should not do this, leave Lebanon, not carry out that mission, not do—whatever, all kinds of things. And then people say: fine, but you are endangering civilians. They say: true, but fewer civilians will be harmed than soldiers if the soldiers carry out that mission. And let’s assume for the sake of argument that that’s true. Still, there is room to argue that each one in turn, when he serves in the army, his role is to take risks in order to protect civilians. Therefore the status of a soldier, who is required to sacrifice or at least take significant risks, is different from that of a civilian. We do not want a civilian to be even at risk to his life, and for that the soldier must take the risk so that the civilians not be at risk—not necessarily to save their lives. There is some kind of social covenant within society; we divide up tasks. And the soldiers—again, each in his turn—is supposed to contribute his three years, and during those three years he is an appointed judge. Meaning, he is appointed for the matter, and his role is to take risks, at least doubtful ones. I think not certain ones, but doubtful ones yes. A civilian who is not appointed—or a judge who is not appointed—he knows how to judge, but he is not a sitting judge; no, he does not have to judge. Suppose the judges are afraid, there are crime syndicates, and the judges are afraid and don’t want to judge. Now I am a distinguished jurist, a law professor or a well-known experienced lawyer. Must I take the initiative and judge in place of the judges? No, because I am not appointed for that. Again, if I do it, all well and good. It’s a noble and important act. But one cannot demand it of me. The difference between an appointed judge and a non-appointed judge, or someone fit to judge but who is not a judge, lies in this. To demand, certainly with regard to danger to life, one can demand from an appointed judge. That’s his role. But if the judge is not appointed, I cannot demand it; I can ask for volunteers, I cannot demand it. I think that is the simpler explanation of the difference between an appointed judge and a non-appointed judge. With regard to whether he knows where the law inclines or not, there once again the feeling is, perhaps, one of appearance—maybe even more than appearance. It’s the question of whether, once you already know where the law inclines, then as I said before, this is some kind of falsehood. And falsehood you may not commit even if you are just a Torah scholar, not an appointed judge. Okay? But here I’m not sure I would say that in a case where I truly am in danger to life. I think here, for a non-appointed judge—as opposed to an appointed judge—then even if “lest he kill my son” and so on, I am obligated to judge, at least in doubtful danger to life. For a non-appointed judge, although he too has an obligation to judge if he knows where the law inclines, as a matter of reasoning—and all this is reasoning—I would say: not in a situation of doubtful danger to life. If this is not his role, then even if he knows where the law inclines, with all due respect, he does not have to take a risk to his life or the lives of his family members, or whatever. So in this context there is a spectrum or hierarchy of demands; it is not black and white. And notice that everything here ultimately comes from reasoning; there are no explicit sources for this. Rashba and Rama, who distinguished between an appointed and a non-appointed judge, bring no source for this. And if you know where the law inclines or don’t know, the Talmud states that distinction, but it doesn’t bring a clear source for it. In my view, what lies behind all these distinctions is the same conception I stated here. On the one hand, to what extent is this danger to life—if there is no effective legal system, that is danger to life, society disintegrates. On the other hand, the question is to what extent I impose obligations on people to prevent that danger to life. So an appointed judge is obligated to prevent that danger to life even in a situation of doubtful danger to life. Regarding certain danger to life, I personally do not agree, but doubtful danger to life—yes. A non-appointed judge needs to try, at least if he knows where the law inclines, but not to take risks of doubtful danger to life. So there is much room here for common sense: how much is a significant risk, how much is an insignificant risk, whose role is it and whose role is it not. There is definitely flexibility here, but I think the principles are these principles. I’ll just finish this part with the point I raised before: to what extent is this an internal-halakhic consideration, and to what extent is it some kind of peripheral category? In a certain sense, it is a peripheral category. What does that mean? It is a peripheral category because the source from which all these distinctions emerge is simply reasoning. Reasoning is human understanding of how one ought to act. In that sense, there is no halakhic source from a verse. Afterwards I take the verse “do not be intimidated by any man,” and the fact is that many—or even most—decisors don’t take it in that direction. And because I understand that there is no choice, that society must function, and that society needs a legal system in order to function, I interpret the verse “do not be intimidated” in this way. Once I do that, you can call it a halakhic consideration. It comes out of the verse “do not be intimidated,” and it already appears in the decisors, in the Shulchan Arukh, in Maimonides, in the Talmud, wherever you find it—granted, amid disputes, but still, it appears in the decisors, and one can see in it halakhic statements. But I already discussed this, just like the issue of secular courts in Syria—I mean, the permission to use secular courts in Syria. I said, seemingly that’s Jewish law, not a peripheral category, because the Talmud itself already did it. So I said: yes, true, but on what basis did the Talmud do it? The Talmud itself gives no source. Why did it do it? Because of that same rational consideration saying that one cannot maintain a society without an effective legal system. If so, then this consideration is a peripheral one that the Sages use, bringing it into Jewish law, sometimes perhaps even using it to interpret verses like “do not be intimidated by any man.” Once they do that, of course it enters into Jewish law; now it is already Jewish law, obviously. What does “now it is already Jewish law” mean? Since the Talmud itself did not make this interpretation, and regarding the Talmud there is a dispute among the decisors as to what the Talmud means, one cannot say that there is some binding source saying that this is so. I can say that I don’t rule like the Turim but like the other decisors, or not like the Bach, or whatever, since most decisors do not rule this way. So it is hard to call this Jewish law in the binding sense. Even though the Turim and the Bach and all these later authorities, once they follow this line of reasoning of public danger to life, ultimately read it into the Sifrei’s exposition of “do not be intimidated by any man.” In other words, in the end it does shape halakhic ruling somehow, only the source is a peripheral source—a source of reasoning. And I already discussed the fact that reasoning by its very nature is a peripheral source. Except that here we now have to begin discussing, because I distinguished between two kinds of reasoning. There is reasoning that is interpretive reasoning. Interpretive reasoning says to me, I don’t know, “with righteousness shall you judge your fellow”—reason tells me that part of judging righteously is the rule that the burden of proof lies on the claimant. So this reasoning basically tells me what the verse “with righteousness shall you judge your fellow” means. That is interpretive reasoning. Something like that is pretty much Jewish law, I think. True, it starts from reasoning, but the reasoning only tells me what the verse says. The reasoning is not functioning here as something that creates law; it is only helping me discover what the verse means. In the end, that law comes from the verse. By contrast, reasoning like the blessings before enjoying food, where before we eat it comes from reasoning—“it is forbidden for a person to benefit from this world without a blessing,” and “whoever benefits from this world without a blessing is as though he committed sacrilege,” as the Talmud in tractate Berakhot says—that is reasoning. But that is reasoning that establishes a new law. True, there is now such a law, and that law entered the Shulchan Arukh, the laws of blessings, but it begins with reasoning: the reasoning that says one may not enjoy this world without a blessing. Here the reasoning is not interpreting; there is no verse that this reasoning interprets. This reasoning establishes a law. So here I said: after the Sages took this reasoning and turned it into a rabbinic law, you can call this peripheral category—this reasoning—Jewish law, because what the Sages establish by force of “do not deviate” has halakhic status. So what difference does it make to me that the Sages did this because they relied on reasoning? In the end, they did it; what they did is binding, it is part of Jewish law. In our case, with “do not be intimidated,” the situation is less clear. Why? Because here the Sages did not do it. There is a dispute among interpreters, and really this is among later authorities; it’s not even medieval authorities, certainly not the Talmud and certainly not the Sanhedrin. A dispute among later authorities—everyone can choose the opinion that seems correct to him. Now the choice between the various opinions is entirely a matter of reasoning. Do you accept this reasoning that I stated, that social disintegration is danger to life, or not? Therefore here, even after I make this interpretation of “do not be intimidated,” since the one making the interpretation is me, not the Talmudic Sages and not a Sanhedrin to whom “do not deviate” applies, then here, even after I make this interpretation, it is less Jewish law and more a peripheral category. That is how it seems to me. Therefore, once again we see here how our conceptions and our peripheral forms of reasoning—what I called peripheral reasoning—enter into Jewish law, and somehow in the end it becomes a little hard to distinguish what is called Jewish law and what is not called Jewish law. The discussions are of course discussions among decisors, and at first glance that means we’re dealing here with a halakhic discussion. I doubt whether one may call this a halakhic discussion. I do think one may and should do this on the Sabbath. It’s just that—again, this is partly semantics—whether we call it halakhically permitted or not halakhically permitted. But I don’t have a compelling halakhic source that says so; my reasoning says so. So how is that different from a moral reasoning that clashes with a halakhic source, and I decide to prefer the moral reasoning? That too can be called a halakhic decision, because in the end I say to myself that this is how I ought to act. Therefore, if one accepts this expansive definition of the concept of Jewish law, then the notion of periphery is emptied of content. The subject of our series is the periphery, so I assume that concept is not empty. Therefore, in my opinion, this discussion—which is really a continuation of the discussion about the prohibition of secular courts in the state courts—the foundation is that the disintegration of society is some kind of danger to life, and that consideration itself is some kind of peripheral consideration. And indeed we can see this, because to think in terms of such a consideration in a period when you live in exile is very, very non-obvious. No wonder most decisors didn’t think this way. They didn’t think this way because they took for granted that there is a king and he has police and he has a legal system, and there are gentiles who take care of everything, also on the Sabbath, and everything is fine. They never imagined—or did not think, did not have before their eyes—a situation in which there is a legal system that is entirely according to Jewish law, and the police too are run according to the instructions of those judges. In such a situation, someone who lives that situation understands these things almost as a matter of course. In my opinion, decisors who do not agree with this today—it is again only because they still live with the mentality that there are gentiles doing the work for us, where in our case the gentiles are the secular Jews who do the work for us. Therefore no one confronts them head-on with this responsibility or this need. Notice: this society will not continue to function if you act according to how you recommend acting. All those who say not to enlist in the police. Because of course one can say: true, but here we already have secular people who will do the work. Why also bring religious Jews in there to violate the Sabbath? I claim that this is already another discussion—actually maybe it is not another discussion but a continuation of the same issue, now that I think about it—that by force of the categorical imperative, I think religious policemen too should go and serve—again, whoever is suitable for it—go and serve in the police. Not leave it to secular people, exactly as we are used to, by the way, in the army. In the army we are quite used to the accepted ruling that says that if there is some patrol mission on the Sabbath and the religious soldier can swap shifts, let the secular soldier go and in exchange the religious one will take two shifts during the week for him, in order to compensate him. No. Everyone I know at least says: absolutely not. Don’t swap shifts—do it yourself. Do it yourself, even though the secular soldier will violate the Sabbath one way or another; he’ll violate the Sabbath on the base instead of violating the Sabbath on patrol. So on the contrary, let him violate the Sabbath on patrol, because then it’s not even really Sabbath violation. You are saving him too—not only saving yourself, you’re also saving him. But no, people don’t do that. Why don’t they do that? If you ask people—again, in my opinion because they don’t have the right conceptual framework. So if you ask decisors or those who say this, they’ll explain to you that basically danger to life is “permitted” or that this might lead to future dangers and so on, and one may not delay, and everyone has to go out, and so on and so on. I think the point—the point at the base of the matter—is the categorical imperative. The categorical imperative means that my decision whether to perform an action or not must be examined through the prism of what would happen if everyone acted as I do. Yes, Kant’s categorical imperative says: act in such a way that you would want your action to become a general law. And if everyone avoided going on Sabbath patrol or joining the police because there is Sabbath violation, there would be no police and no army. So the fact that there are secular Jews, or gentiles, or I don’t know exactly what, does not justify my evading the matter. I too have to fulfill that task. And there is no obstacle here—meaning, I am not a sinner. There is no basis for avoiding it. On the contrary, there is value in taking part and doing it exactly like everyone else, without concern. In other words, someone can come and say: you’re right in principle, one cannot do without a functioning police force, without a functioning legal system—but today we have people who do this happily. They join the police; they are secular, it doesn’t bother them, they get paid for it, and they’re fine with it, or whoever. So why do I, as a religious person—if no one else existed, then I would enlist. But others are there; why do I have to do it? The answer is: because of the categorical imperative. The categorical imperative says that I do not make these kinds of calculations based on there being others who will do it. If I’m relying on that, then no. I wrote about this—well, I won’t go into all of it now—but I’ll bring just one example, because in any case I can’t get to the next topic now. I brought the implementation of the categorical imperative in Jewish law, which is itself a peripheral consideration—it’s a philosophical consideration—and I claim it has halakhic status. It lies behind many intuitions of decisors, even though none of them formulate it explicitly. There was once a debate in Tzohar between two rabbis, Rabbi Nehorai and Rabbi Yehuda Amichai. They were arguing over whether it is preferable to consume produce from otzar beit din or from the sale permit. Rabbi Yehuda Amichai, who is responsible for Otzar Ha’aretz, argued that one should prefer otzar beit din; it is more meticulous than the sale permit. And Rabbi Nehorai said: what do you mean? So you’re leaving the sale permit for the secular Jews? Or for things of that sort? So he said: yes, I’m leaving it for the secular people. What do you mean? There are people who buy it and it doesn’t bother them. I want to be stringent and buy only otzar beit din. So what’s the problem? It’s not that—then there was a fairly long back-and-forth between them. Then he says to him: yes, but what about the farmers’ livelihood? After all, the sale permit was intended so the farmers would have a livelihood and not lose it. Fine, then Rabbi Yehuda Amichai answers him: the secular people, or those who are less careful—not secular necessarily, even religious people who are less strict—they will buy under the sale permit. I recommend that those who want to be meticulous buy otzar beit din. And afterward I wrote an article following their debate. It wasn’t a response; it was an article for which their debate was just the trigger, the thing that made the penny drop for me. I showed there that the intuition behind Rabbi Nehorai’s arguments—though I think he didn’t manage to conceptualize it—is the categorical imperative. What he really wanted to say was: suppose we were all as righteous as you, Rabbi Yehuda Amichai, and we all only used otzar beit din. What would happen to the livelihood of the sale-permit farmers? There would be no point to the permit if nobody bought from them. So the claim that true, but today not everyone is as righteous as I am, and there are those who will buy under the sale permit—in my eyes that is not a justification, because of the categorical imperative. The categorical imperative says I am supposed to do something that could also become a general law. It cannot become a general law that everyone buys only otzar beit din; there isn’t even enough otzar beit din for everyone. Therefore, since it cannot become a general law, then no one should do it. One should prefer the sale permit. The same thing applies to leavened products after Passover. There are people who are careful not to buy leavened products in a store that sold its leaven to a gentile. Because with actual leaven people tend not to rely on the sale; with mixtures of leaven and the like, they do. But for stores, they allow even the sale of actual leaven. Now in Bnei Brak, it is accepted not to buy that leaven. Many people are careful, strict, not to buy leaven that was sold over Passover by the store; actual leaven they don’t buy. And I argue that here too, it is the same mistake. If no one bought actual leaven that had been sold—if everyone were as righteous as you—then what would happen to the store owner? After all, why do we allow the store owner to sell the actual leaven? Because he would otherwise incur a major loss. We do not want him to collapse, right? There is a halakhic justification for it. But if everyone were as righteous as I am and no one bought it from him, what good did it do him that he sold it to a gentile? It didn’t help him. No one buys it from him anyway, so he lost that stock regardless. Therefore I think it is not right to be strict. It is right to be strict only where there is a solution by which everyone can be righteous. If there is such a case, then yes, may blessing come upon the strict one. What does “may blessing come upon the strict one” mean? In my view, only where that stringency could belong to everyone. It doesn’t in practice—most stringencies are observed only by a minority—but it could. A stringency that is built on the fact that others won’t be strict, and only because of that I can be strict—that one is forbidden. That is my claim. The same thing—once I heard this from our spiritual supervisor at Netivot Olam in Bnei Brak. He argued that all these righteous people who are careful not to carry even when there is an eruv, and therefore they go out for a walk on the Sabbath and let their wives take the stroller with the children—he told them: don’t be righteous and insist on the eruv if your wife is going out with the stroller. If all of you stay home, then stay home. But if you’re going out for a walk, then you take the stroller exactly like she does. And once again I think—he did not define it this way, he did not conceptualize it this way—but what stood behind it was the categorical imperative. You cannot adopt a stringency built on the fact that others won’t adopt it. That’s not legitimate. And by the way, I claim more than that: not only regarding a stringency. Even a law that is built on the fact that others do not observe the law—not a stringency, but the actual law itself—but can only be observed because others are not observing it, such a law too is nullified. Meaning, I don’t say this only about stringencies but even about actual laws. And that is exactly what I said regarding the police and the judge and all these things. The Sabbath violation of the police officer—or if I, as a religious policeman, go to the police and know I will do tasks that are not danger-to-life tasks—is it permitted for me to do that? The answer is yes, because somebody will have to do those tasks. If all of us could be strict and not do those tasks, then it would be appropriate to be strict. But if the only reason I can be strict is because there are those who are not strict, then there is no value to that stringency. Don’t adopt that stringency. And here of course I’m not speaking about a stringency. This is unnecessary Sabbath violation—not for danger to life. This is the actual law, not a stringency. I claim that even an actual law—not just a stringency—where my ability to observe it depends on the fact that others do not observe it, such a law is void. It is not correct to observe it. Now, that itself is a peripheral consideration—the categorical imperative is itself a peripheral consideration. Because here there is a kind of broad conceptual reasoning that has no halakhic source, or at least I don’t know a simple halakhic source for it, but it seems to me that one can see that it stands behind quite a few statements of decisors, both in our time and earlier, who never formulated it explicitly. But it is there. Okay, I’ll stop here. If anyone wants to comment or ask. Yossi, was that intentional? Applause and not raising your hand? Okay, my resolution with the icons still isn’t good enough. All right, no need—do me a favor, don’t applaud in classes, certainly not in Torah classes. I don’t like applause at all. Okay then, goodbye, good night. Good night, thank you very much.