The Periphery of Halakha – Lecture 9

Table of Contents

• General overview.
• The transition from private Jewish law to the public sphere, and the role of peripheral considerations
• The public as an entity: between fascism and individualism, and the implications for war
• Sacrificing life, risking life, and Siamese twins
• Drawing lots as self-rescue, and the parallel to war
• Targeted killings, innocents, and an orderly halakhic framework
• Rabbi Yisraeli, “laws of war,” and the criticism of “pulling a rabbit out of a hat”
• The collective as a “pursuer,” and permitting harm to non-involved people when necessary
• Borderline questions, proportionality, and exceptional cases
• A philosophical consideration as a driver in shaping Jewish law, and the example of “do not form factions”
• The king’s law in Derashot HaRan, and two legal systems
• The topic in Sanhedrin 5: authority to judge, ordination, and the Babylonian–Land of Israel struggle over authority
• “A historical accident”: the loss of monarchy and getting used to everything being treated as Jewish law
• Da’at Torah, running a community, and criticism of bringing mundane matters into the Shulchan Arukh
• The limits of rabbinic authority today, and policy questions

Summary

General overview.

The text argues that the formal halakhic mode of thinking changes when one moves from the private sphere to the public sphere, because the public is understood as an entity with independent standing, and extra-halakhic, philosophical considerations enter into the shaping of Jewish law. The author develops an approach in which the relationship between the individual and the public is neither fascist nor radically individualistic, but a combination: one may demand that the individual risk his life within the framework of war, but not undertake a certain suicide mission. He then proposes a principled framework for dilemmas involving targeted killings and harm to non-involved people, and criticizes reliance on “laws of war” as a vague category when, in his view, the permission can be grounded in a collective conception of the law of the pursuer, subject to the needs of rescue. Finally, he presents the concept of the king’s law in Derashot HaRan and the topic of judicial authorization in Sanhedrin 5 as historical proof of two systems of authority—halakhic and secular—and from this he develops a critique of “halakhic imperialism,” of the development of Da’at Torah in its authoritative sense, and of the inclusion of the laws of communal governance in the Shulchan Arukh as a mistake resulting from the historical accident of the loss of monarchy.

The transition from private Jewish law to the public sphere, and the role of peripheral considerations

The author states that in the public sphere, “a threat to the normal life of society” receives a status similar to saving a life, and makes it possible to demand things that could not be demanded of the individual. He attributes this to the fact that extra-halakhic or philosophical considerations, including the categorical imperative in the context of civil courts, participate in shaping Jewish law. He sharpens two innovations: a conception of the public as an entity with independent existence that Jewish law can relate to, and a change in the form of concepts like saving a life when they are applied to a public entity, such that actual death is not required in order to define a situation as one of saving life.

The public as an entity: between fascism and individualism, and the implications for war

The author presents the halakhic view as a middle position between a fascist conception in which individuals are merely limbs of a collective organism, and a radical individualistic conception in which the public is a fiction with no ontological standing. He argues that both aspects—the collective and the individual—exist together, and neither is completely subordinate to the other. As an example, he mentions Yehuda Ken-Dror at Mitla and argues that in the accepted ethical framework of the IDF, one cannot force a suicidal order, even though one can require risking life in wartime missions, because one cannot crush the “individual hat” in the name of the collective.

Sacrificing life, risking life, and Siamese twins

The author presents a commonly accepted halakhic assumption according to which a person may not give up his life in order to save others, and explains that war is an exception because the soldier is also defending himself as part of the public. He compares this to the parable that “the hand protects the body,” and distinguishes between risking life and certain death. He brings up the issue of separating Siamese twins in a symmetrical situation and notes that the accepted view among all the halakhic decisors is that one may not perform an operation that kills one in order to save the other, but he argues in an article in Techumin that not only is it permitted, it is required, and he proposes deciding by lottery.

Drawing lots as self-rescue, and the parallel to war

The author explains that drawing lots between twins facing certain death is similar to a person on the roof of a burning house who is permitted to jump, because the jump creates a chance of survival in place of certain death. He argues that entering the lottery is a step each one takes “for himself,” because it grants a chance at life that otherwise would not exist, and therefore a guardian can decide this on behalf of infants. He applies this to war and argues that there is an obligation to risk life in response to a legitimate order only when the soldier is included among those who may benefit from the step, whereas a mission of certain death is a demand to give up one’s life for others, and therefore cannot be imposed, though it may be done voluntarily.

Targeted killings, innocents, and an orderly halakhic framework

The author describes a vague public discourse surrounding harm to non-involved people in targeted killings, based on intuitions of “proportionality” and at times identified with the left-right political divide. He presents two basic principles: the law of the pursuer, which permits and even requires killing a threat in order to save the pursued, and opposite it the principle that a person may not save himself at the cost of another’s life, and must be killed rather than commit murder, formulated in the Talmud as “Who says your blood is redder?” He states that applying these principles in a straightforward way leads to forbidding an assassination when harm to uninvolved people is expected, and he emphasizes that the prohibition also applies with regard to a non-Jew, while mentioning Rabbi Yisraeli’s responsum on Qibya and expressing reservations about Torat HaMelekh.

Rabbi Yisraeli, “laws of war,” and the criticism of “pulling a rabbit out of a hat”

The author presents Rabbi Yisraeli’s solution, which permits harm to non-involved people within the framework of “laws of war,” and concludes that according to this approach, in a private threat that is not war, it would be forbidden to shoot at a car carrying a threat if there is also an uninvolved passenger inside. He argues that “laws of war” are an undefined category in the sources because Jewish law developed in exile without wars, and therefore using this category is sometimes a kind of catch-all clause that justifies an intuition without an orderly foundation. He seeks an alternative that does not depend on the assumption of war between states or on formal governmental authority.

The collective as a “pursuer,” and permitting harm to non-involved people when necessary

The author proposes that when the threat is collective, the law of the pursuer should be applied to the collective as a whole, such that even those who are not bearing arms may be considered pursuers within the framework of the public struggle. He argues that on this basis one can justify a targeted killing in which “uninvolved” people are harmed, not by virtue of “laws of war” but by virtue of the law of a collective pursuer, so long as the harm is necessary for rescue. He limits this by means of the principle that “if he can save him through one of his limbs,” meaning that even a pursuer may not be killed if rescue is possible without killing, and from this he explains why one may not permit dropping an atomic bomb on Gaza as long as the threat can be dealt with in a more limited way.

Borderline questions, proportionality, and exceptional cases

The author admits that there are no algorithmic answers, and that considerations of proportionality remain necessary in setting boundaries, such as in the case of a terrorist in a stadium with ten thousand spectators. He responds to a question about a “Swedish” passenger in a taxi and argues that in principle it is forbidden to harm him, because he is not part of the collective to which the law of the pursuer has been applied, though he notes the possibility of additional considerations involving the assumption of risk by entering the area. He concludes that the proposed permission depends on a philosophical judgment about the status of the public, and therefore is not derived from halakhic principles alone, even though it is formulated in the language of the pursuer and of saving oneself at another’s expense.

A philosophical consideration as a driver in shaping Jewish law, and the example of “do not form factions”

The author emphasizes that deciding targeted-killing questions depends on integrating a “philosophical reasoning” that sees the nation as an entity, and that this is an example of “peripheral considerations” in shaping Jewish law, similar to the categorical imperative mentioned earlier. He compares this to the example of “do not form factions” and to the interpretation of “city” as a category that changes from period to period, such that in the present era “a city means ethnic origin” and not necessarily a geographic area, and therefore the presence of multiple different synagogues in the same geographic city is not seen as violating the prohibition. He states that understanding social reality and its changing nature repeatedly affects halakhic concepts and their application.

The king’s law in Derashot HaRan, and two legal systems

The author presents the Ran in Derashot HaRan as arguing for the existence of two legal systems: Torah law and the king’s law, under which the king or judges appointed by him rule not according to halakhic law. He describes the king’s law as an extra-halakhic category that the king determines according to “common sense” and legislation, and compares this to the law of the kingdom in non-Jewish states. He cites Rabbi Meir Dan Plotzki, the author of Kli Chemdah, in Hemdat Yisrael, as an example of the fact that under the king’s law one can accept self-incrimination, unlike Torah law’s rule that “a person cannot render himself wicked.”

The topic in Sanhedrin 5: authority to judge, ordination, and the Babylonian–Land of Israel struggle over authority

The author quotes the Talmud in Sanhedrin 5 about judicial authorization from the Exilarch in Babylonia and from the head of the Sanhedrin in the Land of Israel, and emphasizes the element of “scepter” versus “lawgiver” in the verse “The scepter shall not depart from Judah.” He describes how the Talmud concludes that authorization from the Exilarch is effective for judging throughout the world, whereas authorization from the head of the Sanhedrin is effective only in the Land of Israel, and from this he reads a historical power struggle between centers of authority. He interprets the passage as pointing to a distinction between professional, Torah-based qualification to judge, which is granted through ordination, and governmental authority to enforce law, which is granted by the ruling power—similar to the modern distinction between an academic degree and a judicial appointment.

“A historical accident”: the loss of monarchy and getting used to everything being treated as Jewish law

The author argues that the astonishment at the Ran’s model stems from a “historical accident,” namely the end of monarchy, which led to the Sanhedrin and its head effectively holding both the governmental hat and the Torah hat. He describes how the rise of the Babylonian center and the autonomy of the Exilarch restored an awareness of monarchy and of separate secular authority, whereas the Jews of the Land of Israel resisted this out of the habit, formed over hundreds of years, of centralized halakhic authority. He states that the condition in which “the Holy One, blessed be He, has in His world only the four cubits of Jewish law” actually stems from the absence of a parallel governmental system, not from any essential principle that everything is to be decided through Jewish law.

Da’at Torah, running a community, and criticism of bringing mundane matters into the Shulchan Arukh

The author connects the phenomenon of Da’at Torah in its authoritative sense to the fact that people grew used to referring even mundane decisions to rabbis because of the absence of Jewish government, and from this there developed a conception according to which the halakhic decisor is supposed to “determine everything.” He attacks the inclusion in the Shulchan Arukh of laws governing community conduct—votes, majority rule, unanimity, “the consent of an important person,” communal customs—and argues that this is not binding Jewish law at all, but a pragmatic solution to municipal questions that were asked of rabbis because there was no other governing body. He states that he disagrees “vehemently” with Rabbi Yosef Karo and argues that he had no authority to turn such decisions into binding law, even if there was no secular government in his day.

The limits of rabbinic authority today, and policy questions

The author argues that consulting a rabbi as a wise person is legitimate, but there is no obligation to accept what he says in areas that are not halakhic, and he gives as an example questions like whether to open yeshivot during the coronavirus period, which in essence is not a halakhic issue. He states that slogans like “do not deviate” are irrelevant in such contexts, and that one must distinguish between Jewish law and its periphery even when the language used is halakhic. He concludes by arguing that halakhic imperialism is not just a recent invention but a deep historical process, and that the return of Jewish sovereignty restores the need to recognize once again the duality between a halakhic system and a governmental-secular system.

[Rabbi Michael Abraham] Okay, let’s begin. In the previous lecture I talked about “do not fear any man,” and I tried to show there that the usual halakhic way of thinking, or to some extent the formal way, doesn’t really work once you move to the public sphere. In the public sphere, somehow the considerations begin to change, and a threat to the normal functioning of society, once we are talking about the public, receives some kind of status of life-saving necessity, and that makes it possible to demand of people things that we would not demand of them on the private level. That consideration itself—I also spoke a bit about the categorical imperative in the context of secular courts as well—that is, there are extra-halakhic or philosophical considerations, or various kinds of reasoning, that come in and help, and take part in shaping and formulating Jewish law. And here, if I sharpen it a bit more, there are two aspects. One aspect is the philosophical way of looking at what a public is. The question is whether I see the public as some kind of entity that has independent existence, and Jewish laws can relate to it and not only to the individuals who make it up—or not, only by way of the individuals who make it up. That is one question. The second innovation is that this entity also causes concepts like life-saving necessity, when they are applied in relation to such an entity, to undergo a transformation. In other words, nobody actually has to die for us to define a situation as life-saving necessity if we are speaking on the public or social plane. So those were really two innovations there, or two considerations, let’s call them, what I call in this context peripheral considerations—considerations that are not drawn straightforwardly from halakhic sources, but are drawn from some outside source. One consideration is that I see the public as some kind of entity that has independent standing and existence, and the second is that with respect to such an entity, even its disintegration without loss of life is considered life-saving necessity. Why am I sharpening this? Because today I want to talk about one of those two innovations and show another aspect connected to it. And that is the aspect of seeing the public as an entity with independent standing. I think I already mentioned this—certainly in the series where we spoke about the individual and the public, I definitely spoke about it there—but it seems to me I also mentioned it in one of the recent lectures, that in fact there is here a position—also in that lecture where I spoke either about secular courts or about “do not fear any man,” one of the recent lectures—that in Jewish law there are places where you can see that the metaphysical conception, let’s call it, of the public stands between the fascist conception, which sees the public as an entity, or really as the only entity that exists, and the individuals are merely limbs of that collective organism. That is the fascist conception, where people are oil in the wheels of the revolution. And the extreme individualist conception, which sees only individuals and regards the public as some kind of fiction. I don’t know, something we define legally, socially, culturally, but it has no place in metaphysics, in ontology, in the theory of being; it is not some kind of entity, just a definition that is convenient for certain purposes. And I said that in Jewish law, in various halakhic sources, you can see that Jewish law views the relationship between the individual and the public as a combination of these two aspects. Both the collective aspect and the individual aspect, and neither is wholly subordinate to the other. And the example I gave was Yehuda Ken-Dror and that volunteering there at Mitla. By the way, it was Dado, not Raful, who sent him. His volunteering to go with the jeep so that the Egyptians would expose where they were hiding, and then it would be possible to advance and deal with them, because they didn’t know where they were. And I said that in IDF ethics, as accepted in the IDF, such an order cannot be given coercively. That is, you cannot order a soldier to carry out such a mission in which it is certain death, even though you can order him to charge in war and all kinds of things like that, which are of course very dangerous and risk life. But you cannot give him an order of suicide. And to me that was a symptom, or a consequence, of this complex outlook: on the one hand I can require him to risk his life—and why? Because that is part of the… because he himself is a limb in the collective for which he is fighting. He is not really risking his life for others; he is risking his life for himself as well, among other things because he too is part of the public. Therefore this is a legitimate demand. Because you cannot demand that a person give up his life in order to save others. The simple assumption in Jewish law is that there is no such thing; not only can you not demand it of a person, but in fact he is forbidden to do so—according to the accepted views, he is forbidden to give up his life in order to save others. The exception in war stems from the fact that here he is not protecting others; he is protecting himself too, because he too is part of the public. In other words, this is basically like asking the hand to protect the body, to put it metaphorically. Maybe an example of this in another context—this too I discussed in one of the earlier series—the separation of Siamese twins. Two children are born attached, with some shared organ, say an organ on which life depends, a shared heart or brain, and two bodies somehow connected through that organ. Now in certain cases doctors can tell us that such a pair will not survive their first year of life—or nine months, I think, in the situations under discussion, that is the life expectancy of such a pair. And the question is whether one may perform separation surgery in which we allow one of them to receive the single heart that is there, and the other will be sent to his death in order to save…? The accepted view, when I am speaking of a symmetric situation, where the heart cannot be assigned to one of them—they are in a completely symmetric situation, I am speaking only about that case—the accepted view among all halakhic decisors is that it is forbidden. It is forbidden to do it. Notice: you have to leave both of them to die. That is, it is forbidden to do separation surgery because you are in effect killing one of them by means of the surgery. And I wrote an article in Tehumin in which I argued that not only is it permitted, but one must perform separation surgery. And people asked me, during the give-and-take while I was writing—I was in discussion with all sorts of Jews, Torah scholars, and various people—they asked me, wait a second, then how will you decide which one? So I said: I’ll do a lottery. And whichever way the lot falls, that one will go to death or go to life. And my claim was this: we are talking about babies; they cannot give consent in this matter. But my assumption is that if they were rational adults and we asked them, they would certainly agree. And therefore the religious court, or their parents, or whoever handles their rights and their welfare, their guardian, can make the decision for them, because all in all that is probably what they themselves would do if they were rational adults. And the claim really was—what is the idea behind it? I gave the example of a person standing on the roof of a burning house, three or four or five stories high, I don’t know. Now if he stays there, he burns. Is he allowed to jump down? If he jumps down, obviously he will be injured; there is also some chance, not a bad chance, that he might even die. Is he allowed to jump with such significant risk to life? There is no doubt that yes, because if you stay up there you certainly die, and if you jump down maybe you die, maybe you remain alive. So the jump down is in fact what gives you, let’s say for the sake of discussion, a fifty percent chance of remaining alive. I said that basically the same is true for each of the Siamese twins. Because for each one, if he does not enter into that lottery, that is like staying in the burning house and not jumping—both die. To enter the lottery means that you may lose your life, but you would lose your life anyway. Therefore what the lottery really does is give you the fifty percent chance of surviving, which would not happen if you did not enter the lottery. And then this means that entering the lottery is ultimately a step meant for me; it is not for someone else, because it is the step that gives me the fifty percent chance of surviving. Therefore one may enter such a life-threatening situation because I am looking at the full half of the cup, not the empty half. I am looking at the fifty percent possibility of staying alive, although of course the price is a fifty percent possibility of dying. Now in such a situation, the person risking his life does so for his own sake, to save his own life. Therefore it is permitted to do this, and therefore others can also make such a decision for him. My claim is that the same thing happens in war. When you send a soldier on a dangerous mission, he gives those years in his turn, each person in his turn gives those years—this is our social covenant. And once that is the situation, he is called upon to risk his life in order to save the public, when the public includes him as well. Now it is true that if he dies, then he himself will no longer be saved—in other words, he will not benefit from this step. But on the other hand, if no one takes this step, we will lose the war and all of us will die. Therefore this is really parallel to the case of the Siamese twins, and my right, or my authority, to demand by military order—to compel a person to risk his life—stems from the fact that I am not demanding that he risk his life for me, but rather that he risk his life for himself. He too is part of the public, and that is a legitimate demand. But what happens in a suicide mission? If I say to a person: you are going out on a mission from which no one returns—you are definitely going to die. Such a thing cannot be ordered. I can ask for a volunteer. Why? Because you can formulate it in two ways. On the one hand, as I said then, I explained it by saying that his individual hat cannot be wholly subordinated to his collective hat. He has a collective hat—he is a limb in the collective—but he also has some standing as an individual person, and you cannot crush or trample the individual aspect in the name of the collective aspect. Each of them has some standing. So: risking life, yes; certain sacrifice of life, no. But one can formulate it a bit differently in light of what I am saying now, and say this: if I demand that he sacrifice his life with certainty, then this basically means that he has no chance at all of benefiting from this step. He will die. We will benefit, we will remain alive, we will win the war—so we will gain from it—but he will certainly die. Once he gains nothing at all, this is really a demand that one person give up his life for other people. That one cannot demand. The demand can only be made if I demand that he give up his life in a situation where he himself is one of those who benefit from the step. To demand that a person sacrifice or pay prices for his own sake is legitimate. To demand that a person pay prices for others is not legitimate. Therefore risk to life is possible, because in risking life there is that fifty percent—or some percentage—that he will remain alive, and then he too will benefit. He too will be part of the public that wins this war because of the step he took. But if he goes out on a mission of certain death, then he certainly will not benefit from it. Now the public will indeed benefit, but one cannot waive or trample the individual hat, the individual aspect of the person, in the name of his collective aspect. You cannot subordinate him, seeing him as some kind of means whose whole obligation is simply to serve others, the public, or whoever. What I now want to do is continue sharpening this point from the opposite angle, but it is the same idea. The claim is that all of this is basically that first innovation I mentioned in connection with “do not fear any man.” The innovation that relates to the public as an entity with some independent existence, not merely as a collection of individual beings. The aspect of undermining public functioning being considered life-saving necessity—that is an innovation I spoke about there, and we’ll leave it aside. I’m focusing on the first innovation. And here I want to speak as well about something I already said in one of the previous series; I spoke about it a bit. And that is the question of harming innocents—the dilemma of targeted killings. Relatively targeted. If they were truly targeted, there would be no dilemma. The problem is that what are usually called targeted killings come at the price of harm to innocents or uninvolved persons, and therefore they are not as targeted as we would like them to be. Now the question is: what do we do in such a situation? Is it permitted to fire at a car in which there is some arch-terrorist who threatens the lives of our civilians or our soldiers, when the price is that we will harm other people sitting in the car who are not terrorists, not involved, and in fact innocent? In this context, discussions about targeted killings or harming innocents are usually conducted in a very—how should I put it—very vague language, very unformulated intuitions: yes proportional, no proportional; if you harmed one, yes, but if you harm ten then no. In other words, there is this feeling that people are really speaking from the gut. And somehow, of course, it always turns into an argument between left and right, and I already explained there that precisely in this case I think that is not a spurious correlation; it is a real correlation, even though at first glance it is not so simple why this really should line up with left and right. But still, my feeling whenever I hear these things is that no one knows what he is talking about—those same people. There are no orderly justifications of what is permitted and what is forbidden and why it is permitted. There is some feeling of “my life comes first”; I want to save myself, so I’ll harm them. To what extent? To drop an atomic bomb on Gaza? I assume that most people would object to that; there are probably some who would not, but I assume most people would object. So where exactly is the line? What is the justification? Why may I harm one uninvolved person in order to save myself? Maybe not even one. In this context, it seems to me that the discussion can be conducted in a more orderly and systematic way. Though again, the orderly picture still does not give algorithmic solutions for every situation, but it does give us some framework of principles that can help us make decisions, or think about these questions, and not just say: this is proportional, this is not proportional, my gut says this, my gut says that. What stands in the background here are basically two principles, halakhic principles but in fact also legal ones. It seems to me that most, if not all, legal systems in the world accept these two principles, and therefore the discussion I am conducting is a halakhic discussion, but not only a halakhic one. It could also be formulated, or conducted, in any legal context you like. On the one hand, there is the principle of the law of the pursuer. If a person, Reuven, is chasing Shimon and wants to kill him, then it is not only permitted but a commandment upon us to kill Reuven in order to save Shimon. So under the law of the pursuer, if someone threatens another person’s life, one may kill him. That is the justification for why I may kill a terrorist. I may kill a terrorist because he is a pursuer, meaning he threatens the lives of our soldiers or civilians, and by the law of the pursuer I may kill him. Opposing this principle of the pursuer is the opposite principle, that one may not save oneself at the cost of another’s life. Meaning, if someone threatens me—“be killed rather than transgress” with regard to murder, as it is called—if someone threatens me with a gun and says, “Kill so-and-so, or I will kill you,” according to Jewish law, and it seems to me this is also true in legal systems, in most other legal systems, you may not kill so-and-so in order to save yourself. There are, again, all sorts of legal discussions about duress and such, and the punishment would presumably be reduced and so on, but in principle it is forbidden. In other words, you may not kill someone else in order to save yourself. And in the formulation of the Talmud, the explanation is: “Who says your blood is redder? Perhaps that man’s blood is redder.” Your blood is not redder than his blood; why should you sacrifice his life in order to save your own? This is somewhat related to what I said earlier: we do not demand that a person sacrifice his life to save someone else, only if he himself is part of those benefiting from the risk he takes, as I said earlier. So here too, “be killed rather than transgress” applies to murder: if someone threatens me, I am supposed to die rather than kill the uninvolved person, the third party. Now at first glance these two principles contradict each other. Because when I now want to kill the pursuer, what am I doing? I am taking the life of the pursuer in order to save the life of the pursued. So the pursuer will say to me: “Who says his blood is redder?” In other words, who says the blood of the pursued is redder than mine? Why are you killing me in order to save him? And here the answer is of course simple. Again, there are many positions among the medieval authorities (Rishonim), and various formulations; I won’t go into them. The situation was imposed by him. Because what do you want from me? Why are you killing me to save him? I am killing you to save him because you are the one posing a threat to his life. Stop threatening him, and I won’t need to kill you, and everything will be fine. You want to keep threatening him while at the same time asking me not to kill you because the life of the pursued is not preferable to your life? That is unreasonable. Therefore the law of the pursuer does not contradict the second law of “be killed rather than transgress” with respect to murder, or the principle that one may not save oneself at the cost of another’s life. Now let us apply this. These are the two simple laws that exist in Jewish law, in all the halakhic decisors. And as I said earlier, also in all other legal systems. Now let us return for a moment to the targeted killing. What happens in a targeted killing is that the terrorist is sitting in the car, and beside him sits someone else, say in a taxi. Someone not even connected to him—not a family member, nothing. They’re riding in a taxi; the terrorist is there, and the driver or another passenger, okay? They are uninvolved, there is no justification for killing them. So to kill the terrorist I certainly may, right? Because that is by the law of the pursuer. But to kill them I certainly may not. Because they—even though I am under threat, the terrorist can kill me, after all he is threatening to kill me, or not me specifically but people whom I am supposed to protect—still, to save one person I may not kill another. Only if that other one is the one threatening the first person, because then it is the law of the pursuer. But if he is an uninvolved third party, it is forbidden to kill him, even if we would pay with our lives for refraining from doing so. So according to the simple law, there is really no justification for carrying out a targeted killing. Or a relatively targeted killing. A truly targeted killing is permitted if it is really targeted, if it is only the terrorist. But usually when people speak about the dilemma of targeted killings, they mean that there is a chance of harming other people too. And then what follows from the simple principles of Jewish law is that it is forbidden. Unambiguously. By the way, Rabbi Shaul Yisraeli also speaks about this in his famous responsum about Qibya—yes, I’ll answer the point about non-Jews in a second. In his famous responsum about Qibya he also speaks about this, and it seems to me that he too says this point: it is the same with regard to a non-Jew. Although the authors of Torat HaMelekh would probably disagree with me, it is perfectly clear that this also applies to a non-Jew. A non-Jew has a right to life, and there is a prohibition against killing him, and there is no justification for a non-Jew paying with his life in order to save the life of someone else, even if that someone else is Jewish. It makes no difference whether he is Jewish or non-Jewish. In principle, according to Rashi and perhaps even some other medieval authorities, I may not even damage property in order to save life. So a non-Jew’s life is certainly not worse than property. In any event, let’s set aside the issue of non-Jews. So Rabbi Yisraeli, when he grapples with this question—how is it permitted to carry out actions that may harm innocents? On the other hand, I need to do it in order to deal with those who really threaten me. What do we do? Rabbi Yisraeli then pulls the well-known rabbit out of the hat that is always pulled out in this context: the laws of war. What does that have to do with this? Why doesn’t it apply to a non-Jew? Who says your life is preferable to his? I’m answering the chat here. If he is coercing and holding the other people as hostages, that is another story. I’m not entering into the details of the topic right now; I only want to demonstrate the logic. So Rabbi Yisraeli basically says: these are the laws of war. In principle, according to the simple laws, it is forbidden to do this, but in the laws of war it is permitted. Where do you know that in the laws of war it is permitted? Where are the laws of war written at all? Let’s say that we really do not have good sources from which one can derive the laws of war. If we take the Hebrew Bible (Tanakh) as a halakhic source in this context, I don’t think we’ll get very far. There are all sorts of things there that I’m not sure anyone today would permit. And therefore the feeling always is—and this is always pulled out in one form or another, because indeed the halakhic tradition developed mainly in periods when we were no longer really conducting wars. We were in exile, we had no autonomy, no army, and we were not really conducting wars, and therefore there is no truly orderly halakhic treatment in our sources of the laws of war. People pull it out—there are some laws of kings in Maimonides and so on—but it is really very little. It is very difficult to derive any clear conclusions from it. And my feeling is that this “laws of war” thing is some rabbit pulled out of a hat when in fact at the base we are talking about some intuition. My intuition tells me that this is how one must act, because otherwise it is impossible to defend ourselves against them. How do I justify it halakhically? I don’t know, because halakhically, as we saw earlier… So he says, yes, but in the laws of war it is different. Let’s say according to his view, what would happen if this were not a matter of war? Suppose just an ordinary person threatening me personally, not a war between nations or anything like that. A person is threatening me. Okay? A life-threatening situation in the laws of saving a private individual. And with him in the car sits someone else unrelated to the matter. May I fire a missile at that car in order to kill him? According to Rabbi Yisraeli, it is forbidden. Even if the one sitting next to him is a non-Jew, by the way; Rabbi Yisraeli writes this. There is no difference between Jew and non-Jew. It is forbidden. Since if the justification is only the laws of war, war has rules. War is between nations; a king makes decisions, the authorized government makes decisions. These are not decisions of a private individual. And under the laws governing a private individual, it is saving oneself at the cost of another’s life, and that is forbidden. That is what follows from Rabbi Yisraeli’s words. And the claim, as I said before, my feeling is that there is here some use of an undefined rabbit, a kind of catch-all clause, “the laws of war,” in order to justify something that intuitively seems right to us. Because intuitively it seems that, at least within certain limits, targeted killings are a necessity of reality. It is impossible to avoid them; one has to be careful, proportionality and so on, but in principle, in principle it is a justified action. And now the only question is how to justify it halakhically, so I pull out this rabbit of the laws of war and everything is fine. But I think that in these contexts the laws of war are neither, first, well defined, nor, second, necessary. We do not need them, because one could formulate this permission in terms that are unrelated to the laws of war. How? The claim is as follows. And now I come to what I said before, to the conception of the public, the collective entity. If I see the struggle, say, between us and the Palestinians, if I see this struggle as a struggle between peoples—not as a threat of one person trying to kill another person, but a struggle between peoples. Again, regardless of the laws of war now; let’s even say that—you know what? Let’s talk about it this way: there is a Palestinian people threatening me, and I am a private individual. Fine? I am not a people. I am a private person. So there, I cannot declare wars, I have no such standing in international law that allows me to declare wars. But facing me stands a public. And the public is pursuing me, not a particular person pursuing me. Okay? So let us speak about that situation. According to Rabbi Yisraeli, apparently there is no permission here, because you are not an entity that can declare war; you are a private person. And a private person is subject to limitations: a person may not save himself at the cost of another’s life if that other person is not threatening him. But I want to argue that if the factor threatening me is collective—that is, it is a people, not a private individual—the situation changes. And why? Because if I am basically looking at those standing opposite me as a collective, then it follows that this entire collective is now under the law of the pursuer. After all, what was the problem? The problem was that one to whom the law of the pursuer applies I may kill in order to save myself. One who is an uninvolved party I may not, because that would be saving oneself at the cost of another’s life. These two principles I spoke about correspond exactly: one principle addresses pursuers, the other addresses uninvolved persons. So pursuers may be killed by the law of the pursuer, and uninvolved persons may not be killed because one may not save oneself at the cost of another’s life. Now what am I claiming? I am claiming that all the residents of Gaza, or the Palestinians in general, let’s put it broadly, actually have the status of a pursuer. Because they are all pursuing me. This is a war of a people against a people, or even of a people against a lone individual, I don’t care. But what stands on the other side here is a public. And the fact that the person holding the weapon is only a certain individual or a certain group is not important, just as on our side it is not important. It is the army that realizes the aims of that public sitting there. Therefore, from my point of view, my enemy is a public, not a private individual. Why is this important? Because once we are dealing with private individuals, the one holding the weapon is a pursuer, and the one not holding the weapon is a third party, and one may not save oneself at the cost of another’s life. But if I claim that what stands opposite me is a collective, then who is threatening me? The one threatening me is the collective. It does not matter that the one holding the weapon happens to be so-and-so; he holds it in the name of the public, he is an agent of the public. And once I see the public as the one threatening me, that means that the public is under the law of the pursuer. Consequently I may also kill people who are not holding weapons, or what are called uninvolved people. Why? Because now, instead of the principle that one may not save oneself at the cost of another’s life, the law of the pursuer applies here. So I have to decide: do I have a conflict with the entire collective? If yes, then the one threatening me is the collective. And once that is the case, the collective has the law of the pursuer. Now you will tell me: okay, so maybe then we should permit an atomic bomb on Gaza? What, so there is justification because they are all under the law of the pursuer. Here I say: that is not correct. I continue building the picture, again, in a very systematic way. Why is it not correct? Because if I can—let’s formulate it this way—not entirely incorrect. Meaning, if I can deal with this threat while harming those who hold the weapons, then harming those who do not hold weapons is not necessary for my rescue. In that situation, even under the law of the pursuer, it is forbidden to kill the pursuer. Meaning, even someone who threatens life—if I can save the pursued person, or myself if I am the pursued person, without killing the pursuer, then there is no justification for killing the pursuer, and so it is forbidden. Therefore, the fact that a person or some collective has the law of the pursuer still does not mean that one may kill all of them. It depends whether that is necessary for the sake of rescue. So therefore I say this: dropping an atomic bomb on Gaza—it is unreasonable to permit that. Why? You need to deal with the people who are holding weapons. Assuming that you can deal with them without wiping everyone out, then it is forbidden to wipe everyone out. Even though they all have the law of the pursuer, because this follows from the principle of “he could have saved him by injuring one limb.” True, if the only way for me to deal with the problem—and here the question enters: what counts as dealing with the problem? Because saving the lives of private individuals I probably will not succeed at. In other words, isolated individuals will die if I do not wipe out all of Gaza. Okay? But to save us from the concrete danger they generally pose, that can be dealt with even without annihilating all of Gaza by means of an atomic bomb. In such a situation, even though they have the law of the pursuer, there is no justification for doing it, because of the principle that he could have saved him by injuring one limb. And even with a pursuer there is no justification to save oneself by killing him if I can save myself without killing him. So you see that I can arrive more or less at what common sense says by using rational considerations, or a systematic structure, a legal or halakhic structure, with various orderly considerations, and not merely by talking about yes proportional, no proportional. Though again, I am not completely exempt from that, because the question remains: where is the line? What counts as danger? To what extent may I harm others? What risk am I required to take? There is no escape from that; there will not be a mathematical answer to every question. One has to use one’s judgment and intuition and think about when this is proportional and when it is not. I cannot completely get rid of these considerations of yes proportional, no proportional, but I am only narrowing them and placing them within a framework that is more orderly and systematic, that is all. But of course that does not replace them entirely. In any event, the claim is that if I am willing to see what stands opposite me as a collective and not a collection—in the fascist conception, let’s call it—and not in the individualist conception, then in fact the whole of it receives the law of the pursuer. Now once the terrorist is traveling in a taxi and together with him there are one, two, three, however many, other people who are uninvolved, meaning they are not holding weapons, they are not members of a terror organization, or things like that, my claim is that it is permitted to harm them not because of that little rabbit of the laws of war, but because there is a very concrete halakhic consideration: because they are pursuers. They are pursuers. The entire Palestinian public is a pursuer in this context. Therefore, as long as it is necessary for my rescue, I may harm it. I may not if it is not necessary for my rescue. Okay? Therefore my claim is that this can justify that intuition which says: targeted killing. Now how far can this go? Again, so what? Does that mean I may now also kill ten thousand people? This terrorist is sitting in a stadium watching a soccer game, and together with him there are another ten thousand spectators. May I drop some bomb there that destroys the whole stadium? My intuition says no. Even though that terrorist endangers life, and we probably cannot manage, I mean we cannot save ourselves without killing him. But here proportionality considerations do enter. I cannot kill ten thousand people in order to save the lives of a few of our own. And how to justify that? Here I do not know how to justify it beyond considerations of proportionality and very general statements of that kind. The question that was asked here in the chat is a good question: what happens if the person traveling in that taxi is Swedish? Not Palestinian. In that case, in my view, in principle one may not carry out the targeted killing. One can introduce considerations like: Swedes who enter such a place assume the risk; do not enter Gaza, in a place where you understand there is a substantial group of people there who threaten us—even if it is the entire collective threatening us. You enter there and prevent me from defending myself, so maybe in the end I am permitted to harm you if I have no choice. You can introduce all sorts of such considerations perhaps. But at the principled level, that is correct. My consideration leads to the conclusion that if I must, I may harm uninvolved Palestinians, but other people who happened to end up there, and they are uninvolved and they are not Palestinians, they are not part of those to whom the law of the pursuer applies—for them we return to the law that one may not save oneself at the cost of another’s life. I may not kill them in order to save myself; that really is forbidden. Now again, in terms of the argument itself one can continue further here. Maybe one could say: I fire at the terrorist; if others are harmed, what can I do? In other words, there are all sorts of considerations of that sort. Fine, one can engage in pilpul about these things. But for our purposes here, what was important to me was only to demonstrate the basic idea. This basic idea is the other side of the coin from what we saw in “do not fear any man.” In “do not fear any man” we basically saw that once I see the collective before my eyes and not a collection of private individuals—opponents of the regime are irrelevant; opponents of the regime are part of that same public too. Even someone who did not vote for Bibi is a citizen of the state, and Bibi is his prime minister, and if one has to strike the State of Israel because it threatens someone, one may strike everyone, including those who did not vote for Bibi. Fine, but that is really a different discussion. In any event, what I want to show here is that just as in “do not fear any man” I argued that in effect I see before my eyes the collective and not the private individual, and therefore I can demand of a person that he risk his life because he risks his life for the sake of the collective of which he himself is part—so here is a halakhic consequence of that reasoning, or even philosophical reasoning, that sees the collective as a real existent and not merely a fictive definition. Here we see another conclusion of that same reasoning, which says that in fact all the Palestinians standing opposite me have the law of the pursuer, and this is not a case of saving oneself at the cost of another’s life. Now it is very easy to get confused and see what I have just said as merely an ordinary and simple halakhic consideration, because I am speaking in the language of saving oneself at the cost of another’s life, pursuer—after all, these are principles that appear in the Talmud, in all the decisors, they are flesh of the flesh of Jewish law. But notice that while that is true—the principles themselves are halakhic principles, though again what their source is is not so simple, but let’s say the source is reasoning, even in “one may not save oneself at the cost of another’s life,” where the argument is “who says your blood is redder?”—that is reasoning. But let us say that these are clear halakhic sources. Still, I had to add here, and the two halakhic sources, these two halakhic principles, were not enough—I had to add here that same philosophical outlook that sees the collective as an entity standing opposite me. Where does that come from? From reasoning. If I am an individualist, I will not accept that reasoning. Let’s say a halakhic decisor who does not see the philosophical situation in that way, who is an individualist and not a collectivist—he really should not permit a targeted killing. Meaning, the question whether targeted killing is permitted or forbidden cannot be decided on the basis of halakhic principles alone. I use halakhic principles, but in the background there is also some philosophical reasoning that I bring in, and this again is a peripheral consideration, a consideration not drawn from straightforward halakhic sources but from some external source, in this case philosophical or metaphysical reasoning or outlook, and that is involved in formulating Jewish law. Therefore this too is some kind of involvement of a peripheral consideration in shaping Jewish law. It somewhat recalls the examples I brought regarding “do not form factions,” for example—not making two religious courts or two synagogues in one city. Today there is no city without dozens of synagogues, not just two. So what is the permission? I said that it is true that the Talmudic rule says one may not establish two religious courts in one city; the only question is what counts as a city. In the period of the Talmud, a city was some geographic area. In our period, a city is ethnic origin. It is not a geographic area. Therefore Ashkenazim have a synagogue, Sephardim have a synagogue, Yemenites have a synagogue, and they are not violating “do not form factions,” because that is a synagogue in the city of the Ashkenazim, although geographically it is of course the same city. But the concept of a city undergoes a transformation because today we live in a period where the geographic definition is already so fluid and so unclear, and a person can own houses in different places, and fly to the other side of the world and come back the next day, or move house. People are no longer born and die in the same village as in the past; it is a dynamic world. And once the world is so dynamic, then my way of looking at the world feeds back into the shaping of Jewish law. The peripheral outlook, this peripheral principle, enters into the halakhic domain and in fact takes part in formulating Jewish law. So the same, basically, is what I am saying here: my philosophical outlook, which looks at a people as some kind of entity, enters into the halakhic consideration. And apparently one may not even feel that it is there at all. It speaks the language of pursuer, saving oneself at the cost of another’s life—really halakhic principles. One can write a halakhic responsum in Rashi script and everything looks completely fine. One can study it in an analytical yeshiva study session in the morning and also in a practical Jewish law session. But there is nevertheless something that crept in from outside. Some philosophical reasoning that one may accept and one may reject, not essentially different from the categorical imperative that I brought last time, which is also some philosophical reasoning, but it enters into Jewish law and shapes and forms it. Now, can I not disagree with it? Of course I can disagree with it. If a person does not accept it, then for him the Jewish law will be different. So here is an example of the involvement of peripheral considerations in shaping Jewish law. Considerations whose source is not in halakhic sources. I am not bringing proofs for this from halakhic sources; rather, this is my philosophical outlook on the world, or scientific, or philosophical, or whatever it may be. Fine. That was a supplement to this principle of viewing the collective as a kind of entity, and how that affects various halakhic consequences. What I want to do now is bring another example—and I also spoke about this once, I do not remember in which earlier series—and that is punishment not according to the strict law, the king’s law. In a moment we will see that there is a connection between these things, because these too are basically categories peripheral to Jewish law. I already mentioned the king’s law in one of the previous lectures. The Ran, in Derashot HaRan, writes that in the halakhic conception there are two legal systems. There is a legal system that judges according to halakhic law, Torah law, and there is a system that judges according to the king’s law. These are judges appointed by the king, and they judge according to law—or the king himself judges, or whatever, people upon whom he confers authority and they judge by the king’s authority—and their law is not subject to Torah law. It is a different law. What law? Who determines that law? The king. Straight common sense, the king’s conception, whatever—he determines the law there, not Jewish law. Therefore this is an extra-halakhic category. The king does not draw from halakhic sources when he formulates the king’s law. He works according to his own reasoning, what he thinks, what he legislates. In this sense, the king’s law is very similar to dina de-malkhuta dina, the law of the kingdom, among non-Jews. For example, Rabbi Meir Dan Plotzki, the author of Kli Hemda, has a book on the laws of Jews and non-Jews called Hemdat Yisrael. And there he discusses the king: can a king accept self-incrimination? Under the king’s law, can a person convict himself? Under Torah law, a person cannot incriminate himself; a person cannot render himself wicked. A person is related to himself, and a person cannot render himself wicked. Under the king’s law, if a person comes and incriminates himself, can the king accept his confession? Hemdat Yisrael says yes. What is his proof? Because among the nations too a person can incriminate himself; only in halakhic law does a person not render himself wicked. What is the proof from there to here? His assumption is that the king’s law is no different from royal law among the nations. The same thing. It does not draw from Jewish law; these are legal laws, and the legal conceptions of humanity in general apply here too. And that is the king’s law. Now, the halakhic legal system has two parallel systems, with different legal methods, and sometimes it may happen that both systems will want to judge the same person for the same act. Because the king judges people also for religious criminality. One of the king’s roles, as Maimonides writes, is to enforce Torah law. Only the king can punish with punishments that are not determined by halakhic rules. He can punish as he sees fit, execute a person if there is some breach and he sees that things are starting to fall apart; he can kill someone even though there is no capital liability for such an offense according to Jewish law. So this is a different legal system, okay? Now when we read this passage in Derashot HaRan, I think it had a revival around the time of the establishment of the state and afterward, because then suddenly we returned to a situation in which the king’s law could be relevant to us. But from the perspective of someone accustomed to the halakhic mode of thought and the standard halakhic sources, when people read this passage in Derashot HaRan their eyes open in astonishment. It is inconceivable that there are two legal systems and that the king can judge not according to Jewish law at all, can do whatever he wants. Where does this come from? Where did the Ran invent such a thing? What is this? Jewish law says what the legal status is of every person for every act he has done; is the king God? Can he transgress what God says? Where does this idea come from? The claim I made when we discussed this was that people’s astonishment when they encounter the Ran’s approach stems from what I have already called in several places a historical accident that happened to us. What do I mean? Basically, the Ran argues—and if you read him, he says this explicitly—the Ran argues that this really is what… After all, we look at it as some kind of hypothetical theoretical discussion in which the Ran suddenly invented a novelty. We forget that once in the past we had kings, we conducted ourselves in a condition of monarchy. True, it was a long time ago, and we have no exact record of what precisely happened there. There is biblical record, but not Oral Torah, and Jewish law does not address the matter, does not describe what happened there. There is a little discussion of what a king does, but very limited, and without records of what really happened. The Ran basically wants to claim that this is how it always was; it is not an invention. Anyone who looks at it as an invention does so only because monarchy in Israel ceased long ago, and since then we have become accustomed to being subject only to the halakhic system; we no longer have the second system. And now someone comes and says, wait, there are two systems. So where did he invent such a thing from? Why? Because for thousands of years I have already been used to the fact that there is only the halakhic system and not the king’s system. But the Ran tells us: fine, that is because monarchy ceased. But when there was still monarchy in Israel, two legal systems were practiced. Therefore, for example, today, when autonomy has returned—call it monarchy or not, that does not matter, but autonomous Jewish rule has returned—people are beginning again to speak in the language of the Ran, that there are two legal systems, there is the king’s law and there is halakhic law, and both have some role. This needs to be carefully defined, and we need to see how to do it, but still there is room here for two legal systems. And by the way, this also affects all the discussions we had concerning secular courts. The secular courts would operate not by Torah law but by the king’s law, and then it may turn out that they are allowed to do many things, and the whole discussion about secular courts becomes entirely unnecessary if one looks at it that way. Because a king may judge whomever he wants. There is no question if I go to the king’s court. In any event, I want to sharpen the meaning of this a little. There is a passage in the Talmud in tractate Sanhedrin—just a moment, I’ll share the Talmud here. In Sanhedrin 5a the Talmud says as follows. The Talmud says here—and I’m reading: it is obvious that from here to here, and from there to there, it is effective. And from here to there also it is effective. For here there is the scepter, and there the lawgiver. In other words, we are talking about a judge who receives authorization from the Exilarch, the head of the exile in Babylonia, or from the Nasi of the Sanhedrin in the Land of Israel. He must receive authorization in order to be a judge, okay? So the Talmud says this: “from here” means Babylonia—this Talmud is the Babylonian Talmud and was written in Babylonia. When it says “here,” it means Babylonia; “there” means the Land of Israel. So the Talmud says this: from here to here—if a Babylonian judge receives authorization from the Exilarch, who is the head of the exile in Babylonia, then certainly that authorization helps him serve as a judge in Babylonia. From here to here: the authorization is given by the Babylonian Exilarch to judge in Babylonia, and that is fine. And from there to there—authorization from the Nasi of the Sanhedrin in the Land of Israel, who was the head of the exile there, to judge in the Land of Israel—that also works. The Talmud says—excuse me—the Talmud says: for here there is the scepter and there the lawgiver. Here our Exilarch is called “the scepter,” and there the Nasi of the Sanhedrin is called “the lawgiver.” “And the lawgiver from between his feet”—these are the descendants of Hillel who teach Torah publicly. So the Talmud here says—and this is very interesting—on the one hand it makes a symmetry between Babylonia and the Land of Israel. Authorization from the head of the sages in the Land of Israel, the Nasi of the Sanhedrin, helps a judge judge cases in the Land of Israel, from there to there. Authorization of the Exilarch in Babylonia gives authorization to a Babylonian judge, and that is effective for him to judge in Babylonia. Why, says the Talmud? Because there the Nasi of the Sanhedrin is called “the lawgiver,” and the Exilarch is called “the scepter.” And the verse—yes, in Jacob’s blessing to Judah in Vayechi—“The scepter shall not depart from Judah, nor the lawgiver from between his feet.” The scepter—scepter means a staff, yes? “The scepter shall not depart from Judah”—this is a staff of rule, of authority; these are the Exilarchs in Babylonia, who rule Israel with a scepter. The Exilarch was not necessarily a Torah scholar, but he was the boss, the ruler, the king if you like, okay? “And the lawgiver from between his feet”—these are the descendants of Hillel who teach Torah publicly. This is the Nasi of the Sanhedrin, and he has standing not only in government, but also in the Torah hierarchy—that is, he is the Nasi of the Sanhedrin, the highest-ranking Torah scholar. So he is called the lawgiver, and the Exilarch is called the scepter. Now, in the original verse, “The scepter shall not depart from Judah,” what is it talking about? Obviously about kingship. “The scepter shall not depart from Judah” means that kings are supposed to come from the house of David, from the tribe of Judah. And indeed, the Exilarchs in Babylonia also had to be from the house of David, because they were essentially a continuation of the monarchy, and therefore they had the standing of a king in Babylonia, while the Nasi of the Sanhedrin had the standing of a lawgiver in the Land of Israel. Each of them can authorize a judge to judge in his place: the Nasi of the Sanhedrin in the Land of Israel, and the Exilarch in Babylonia. Now the Talmud asks: what about from there to here? If the Nasi of the Sanhedrin authorizes a judge to judge, and now he wants to use this in order to judge cases in Babylonia, is the authorization of the head of the sages in the Land of Israel effective? The Talmud says: come and hear; let us resolve it from here. Rabba bar bar Hana judged a case and made a mistake. He judged the case wrongly, and this was in Babylonia. He came before Rabbi Hiyya. A judge who errs in judgment—if he is a judge with authorization, he is exempt from paying for his mistake. He would otherwise have to pay; if he extracted money unlawfully, then someone was harmed, and the judge must pay from his own pocket. But if he is a judge with authorization, he does not have to pay from his own pocket. So he came before Rabbi Hiyya and asked him: what should I do? Do I have to pay? I made a mistake—do I have to pay or not? So Rabbi Hiyya answered him: if they accepted you over themselves, then you do not pay. If they accepted you, then in effect you have authorization to judge because they agreed that you should judge, and then of course you do not pay. But if not—if they did not accept you over themselves, even though you have authorization from the descendants of the Nasi of the Sanhedrin in the Land of Israel—go and pay. But Rabba bar bar Hana had in fact received authorization from the Nasi of the Sanhedrin in the Land of Israel. Learn from this that from there to here it is not effective. We see that authorization from the Nasi of the Sanhedrin in the Land of Israel does not help a judge judge cases in Babylonia. That is what we see. Then the Talmud asks: do we indeed learn from this that from there to here it is not effective? Yes, we learn from this. Then the Talmud asks: and is it really not effective? But Rav Huna, when he had a quarrel… anyway, they bring an objection and reject it, not important. Okay, so this is the conclusion of the Talmud. What is happening here? There is a fascinating subtext in this Talmudic passage. It is clear that there is some jurisdictional conflict here between Babylonia and the Land of Israel. In other words, the Nasi of the Sanhedrin in the Land of Israel gave Rabba bar bar Hana authorization to judge also in Babylonia. The sages of Babylonia say: we do not recognize the authorization he gave you. In the background there is some struggle over which center is actually stronger, more dominant. Now in the end, the conclusion of the Talmud—and this is indeed how Jewish law is decided, in Maimonides and all the halakhic decisors who deal with this—is that authorization from the Exilarch in Babylonia is effective for judging throughout the world, including in the Land of Israel, but authorization from the Nasi of the Sanhedrin is effective only in the Land of Israel, and that is all. Meaning, not only that each one can act in his own place and not elsewhere. Rather, the Exilarch can also act in other places, throughout the world. The Nasi of the Sanhedrin only in the Land of Israel and not in Babylonia. I assume this decision is a Babylonian decision. I am not sure that if we had asked the Nasi of the Sanhedrin he would have agreed. But the decisors follow the Babylonian Talmud, and this is what they rule. What really happened here? What happened here is fascinating. Essentially, what is in the background is that when a judge goes to be appointed as a judge, two things really have to happen. Two things have to happen. One, he must be a Torah scholar fit to judge, and for that he is supposed to receive ordination from Torah scholars, and ordination is done only in the Land of Israel, okay? They recognize him as a Torah scholar, as someone competent to judge. Think of it by analogy to our own situation, say: a jurist has to study law at a university in order to know law, meaning in order to know the material. But does graduating from university make you a judge? Of course not. To serve as a judge you need an appointment from the government. That appointment is not one that determines your professional level; it takes your professional level into account, but that is not the point. Your professional level is determined by the university. If you received a degree from the university, then in principle you are qualified to practice law; those are the substantive, professional experts. What is the role of the authority of the state, or the state appointment? It is to confer governmental authority, because a judge is one of the governmental authorities. Knowledge does not give you governmental authority; knowledge only enables you to engage in it because you possess the knowledge. But in order to receive authority, you must receive it from the government, right? Everywhere it works that way. You have to be a Torah scholar who knows the material, and you have to have authorization in order to be able to enforce your authority over the litigants. The same in Jewish law. In Jewish law, a person who is a Torah scholar is not yet a judge; a Torah scholar is not a judge. A Torah scholar is someone who can be a judge. So to determine that he is a Torah scholar, that will be decided by Torah scholars, the Torah authorities. But to determine that he is a judge, that he serves as a judge, governmental authorization is needed. Who is the governmental authority? Originally, the Ran tells us, it was the king. The king is the secular ruler, the government, right? The Nasi of the Sanhedrin is like the president of the Supreme Court, or perhaps even the speaker of parliament, but the prime minister is really the king. Okay? So the king is the governmental authority. Therefore, originally, when a judge wanted to be appointed, he had to go through ordination in the Sanhedrin and receive authorization from the king, and then he became a judge, okay? Now at some point monarchy ceased. We had no more kings. What happened? Once monarchy ceased, all the powers converged in the Sanhedrin. Why? Because at the head of the Sanhedrin stood the dynasty of Rabbi, Rabban Gamliel, Rabban Shimon ben Gamliel, Rabban Gamliel II, until you get to Rabbi and onward, all of whom were from the house of David, descendants of Hillel the Elder. Why did they have to be from the house of David? Where did we hear that the Nasi’im of the Sanhedrin have to be from the house of David? There is no source for that, and the truth is they do not have to be. But the Sanhedrin that we know of is the Sanhedrin of the middle to late Second Temple period and even after the destruction, and by then there was no king anymore, so governmental authority had converged in the Nasi of the Sanhedrin. The Nasi of the Sanhedrin wore both hats: that of the king and that of the senior Torah scholar. He was the president of the Supreme Court, the speaker of parliament, and the prime minister—he was everything. Think of a situation like in Poland a few years ago, where a plane crashes with the whole government in it. What do you do? There is a governmental vacuum. Obviously another authority—the Supreme Court or parliament or someone like that—takes the powers into its hands until the missing authority is reconstituted, right? Because there cannot be anarchy; authority converges in one of the other branches. In this case there is a king and a Sanhedrin. Once monarchy ceases, who runs life? Who runs secular life? The Sanhedrin runs secular life. Once the Nasi of the Sanhedrin receives standing like a king, he too becomes the secular governmental authority, and then there is a requirement that he be from the house of David. He must be from the house of David because a king must be from the house of David. Whether that comes from the mother or the father—there are discussions about that—but they were both from the house of David. Why were they from the house of David? Because in that period under discussion here, when there were already amoraim in Babylonia, the Nasi of the Sanhedrin in the Land of Israel held two hats: both the hat of the king and the hat of the Nasi of the Sanhedrin. But of course this was a very limited kind of kingship. Because it was under Roman rule, under non-Jewish rule, or first Greek and then Roman. He did not really have true autonomy; he was not a real king. But insofar as a secular government was needed, that was him. At some point a Torah center arose in Babylonia. It began in the First Temple period, but then it was not significant. The craftsmen and smiths went up to the Land of Israel; those left there were common folk. Torah scholars came to Babylonia after the destruction. Long after the destruction. The amoraim really begin the era of Babylonian Torah scholars. Until then there were no Torah scholars in Babylonia, only in the Land of Israel. And a community forms with a Torah center in Babylonia. Gradually it develops and essentially becomes the world center of Judaism. The center in the Land of Israel dwindles; the center in Babylonia grows and becomes dominant. Not only does it become dominant, it receives legal and governmental autonomy from the monarchy, and the Exilarch functions as a real king. He has standing throughout the world, not only in Babylonia. He was the head of the Jews throughout the world, the Exilarch of Babylonia, not the Nasi of the Sanhedrin in the Land of Israel. And now it is no wonder that a jurisdictional conflict begins to develop. Because suddenly, monarchy had ceased many centuries earlier. There was some pale substitute in the Sanhedrin in the Land of Israel, and suddenly an effective secular governmental authority emerges, one that actually rules, that truly has authority to exercise authority, in Babylonia, over the whole world. And now in Babylonia they claim for themselves the powers of secular government. One of those powers is, for example, appointing judges, and that is a secular power. Ordination is done by Torah scholars, by rabbis and the Sanhedrin, but authorization to judge is secular, like the appointment of a judge. The Exilarch says: I am the master here. What happened in the Land of Israel until that point, when there was no Exilarch-king? Then the Nasi of the Sanhedrin also served, de facto, as king. So when he gave authorization, he did both things: he also ordained the sages, and he also gave them authorization to judge—he also appointed them—because he held both hats. Now suddenly the Babylonian center arises and says: enough, up to here. Now there is a king in Israel. It is pathological, because he is sitting in Babylonia; it is a completely pathological thing. But in terms of governmental authority there is a recognized governmental authority whose power extends over the whole world, and it sits in Babylonia. Therefore they claim for themselves the secular powers also over the Land of Israel. An Exilarch who gives authorization to judge—the judge who received the authorization may judge also in the Land of Israel, not only in Babylonia. Because the Exilarch is the king. Then what happens is that ordination is done by the Sanhedrin and those ordained by it, but the authorization to judge is given in Babylonia by the Exilarch. And that is what was ruled as Jewish law. That in the Land of Israel, authorization to judge is effective only for judging in the Land of Israel. And why? Because with respect to the Land of Israel, the Nasi of the Sanhedrin was also considered a king. A local king, the head of everything if you like, or the head of all, the secular ruler. Besides also being the Nasi of the Sanhedrin. But once the Babylonian center arises, suddenly there is a king. There is a Jewish king over all the Jews of the world. And then the claim is that secular authority sits in Babylonia. And the authorization the Exilarch gives allows one to judge also in the Land of Israel and anywhere else in the world, not only in Babylonia. Because he is the king, even though he cannot ordain. Ordination is done only in the Land of Israel. But giving authorization depends on government. Now, why did the people of the Land of Israel refuse to accept this? One can attribute it to interests and a power struggle, and I’m sure historians make quite a stew of it. And maybe that is also true. But behind these things there is also a real disagreement. This is exactly the same astonishment I described earlier about the approach presented by the author of Derashot HaRan. People were used to there being no such thing as a king; for centuries there had been no king. So what then? Everything was determined by the Sanhedrin. The Mishnah in Moed Katan says that the religious court repairs the roads during the intermediate festival days so that we can go up on pilgrimage. The Ministry of Transportation is the Sanhedrin—it sits in the Sanhedrin. Where did we ever hear such a thing? The one who repairs roads—it is the king, the secular ruler, who should make sure we can live here. What does that have to do with the Sanhedrin? It has a lot to do with it, because when there is no king, the Sanhedrin also functioned as the secular ruler. And that is how it was for centuries, and people became accustomed to the fact that all authority was in their hands; they already forgot that there are really two legal systems, one the king’s law and one halakhic law, and they are independent. For centuries they became used to there being only one system. Who even knows the king’s law? Then when the Babylonians want to restore things to their old state and say, wait a second, there is governmental authority here, and now we already have a king, the people of the Land of Israel are unwilling to accept it. Where did you invent this from? This is like Derashot HaRan, right? Where did you invent that there is another system? For centuries we have been used to the Sanhedrin determining everything. Then a struggle begins, but in the end the law is decided like the Babylonians. And this is exactly the approach of Derashot HaRan, that there is a split between the two authorities and they have two parallel legal systems. And we, when we open our eyes in astonishment, that is only because for thousands of years we have been used to there being no king and we do not know the second system; we know only Jewish law. So we became accustomed to the fact that everything is determined by the halakhic sages; they are supposed to determine everything. But that is a mistake. Originally it was not like that. There is a secular authority and it is sovereign to make decisions, and even to make judicial decisions, not only governmental decisions, which is obvious. Then what happens is that people are stuck inside that same historical accident of the loss of monarchy and have become used to the fact that there is only Jewish law in the world—“from the day the Temple was destroyed, the Holy One, blessed be He, has nothing in His world but the four cubits of Jewish law.” I am now saying: from the day monarchy ceased, the Holy One, blessed be He, has nothing in His world but the four cubits of Jewish law. The parallel legal system is gone. And people have become so used to this that they no longer even remember, or think, that there was ever anything else. This is the world and there is none besides it. Anyone who thinks there is governmental authority not subject to Jewish law is considered a heretic today. But that is not true. Derashot HaRan writes this, and that was probably indeed the case in the period of the kings. And if governmental authority has returned to the Jewish people again, as it did in Babylonia, one can discuss whether it is secular and so on—I won’t get into that here—but the claim is that once it has returned, the duality that existed when there was a king also returns. And all those who look at this as heresy are simply accustomed to the results of that historical accident that has accompanied us for thousands of years. And what came out of this? Out of this came the concept of da’at Torah, for example, in its broad sense. What does that mean? That in every question one goes to the sage because he knows how to decide everything, and he also should decide everything. Why? Why should he decide everything? Because the Nasi of the Sanhedrin also determines the secular determinations. The rabbi, whose role is really to make halakhic decisions, we became accustomed to all questions going to him. And whoever now does not listen to him is a heretic—“what benefit do the rabbis provide us?” He does not recognize the authority of sages in da’at Torah. And apart from da’at Torah—da’at Torah is also the claim that the sage knows how to do this better. I am not speaking about that point right now; I disagree with that too. I am speaking about… the deterministic aspect?