The Individual and the Community – Lesson 5
This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
🔗 Link to the original lecture
🔗 Link to the transcript on Sofer.AI
Table of Contents
- The individual versus the collective and the halakhic dilemma in matters of life and death
- Tzohar articles: religious court as a corporation, olive harvesting, Neturei Karta, and the distinction between ownership and sovereignty
- Jenin and Defensive Shield: aerial bombing, ground entry, and harm to non-combatants
- The rabbi’s role versus the political-military echelon and the race of authorities
- Correlation between left–right politics and positions on harming non-combatants
- Rabbi Yisraeli’s responsum בעקבות Qibya and the claim about “laws of war”
- The essentialist model: changing the ontology without changing the Jewish law
- Risking life in war: the individual who is not in danger and the threatened collective
- The halakhic framework for the dilemmas: “a person may not save himself at the cost of another’s life” versus the law of the pursuer
- Why the law of the pursuer is not a contradiction: creating the situation, Rashi, and the punitive aspect of the pursuer
- “Laws of war” as a last resort and the need for an orderly method
- Jew and gentile, Torat HaMelekh, and the claim about “rights” versus considerations of prohibition
- Religious court, the collective, and a “licensed” pursuer: Pinchas, the blood avenger, and an agent of the religious court
Summary
General overview
The text examines the relationship between the individual and the collective through dilemmas involving harm to innocent people in security and halakhic contexts, using the example of Jenin and the question of bombing versus sending troops in on foot. It sets up a tension between two models for understanding the collective—an essentialist model versus a quantitative model—and shows how choosing an essentialist model can change the way Jewish law is applied, without “inventing” a separate system of laws of war. It also connects the discussion to political left–right correlations, arguing that sometimes this is a false correlation and sometimes it hints at a real connection, and it develops a halakhic framework that places the dilemma between “be killed rather than transgress” in murder and the law of the pursuer, including discussion of rights, responsibility for creating the situation, and the role of the collective and the religious court.
The individual versus the collective and the halakhic dilemma in matters of life and death
The text seeks to clarify how the relation between the individual and public considerations appears in laws of life and death, especially regarding harm to innocent people. It raises the question of how to translate sources built for relations between individuals into public-state situations, and argues that the translation depends on whether the collective is understood as an independent essence or merely as the sum of individuals. It defines the move from the individual to the collective as an ontological transition, and raises the possibility that the halakhic laws themselves remain the same laws, but the bearer of them is the collective entity. It argues that such a model can change halakhic outcomes without claiming that the laws of war are a “new discourse” that cancels the laws governing individuals.
Tzohar articles: religious court as a corporation, olive harvesting, Neturei Karta, and the distinction between ownership and sovereignty
The text describes a response article written about a collection of essays in the journal Tzohar, in which dilemmas of individual versus collective reappeared. It cites an article by attorney Elkana Kurtzman on the question of whether a religious court counts as a legal corporation and whether one can sue an individual judge or the religious court as an entity. It presents an article by Rabbi Ariel on interference with Palestinian olive harvesting, and emphasizes his distinction between replacement of sovereignty and replacement of ownership, so that stealing private property is not identical to imposing a new “sovereign envelope.” It compares this to claims by groups like Neturei Karta in Mea Shearim, who present themselves as people upon whom the sovereignty of the State of Israel “landed” without their voluntary acceptance of its laws, and it describes a position according to which the demand for loyalty and obedience is seen as a demand that comes only after unilateral imposition of sovereignty. It notes that municipal reality does not allow areas to be excluded from services like garbage collection, even if a group does not want city or government services.
Jenin and Defensive Shield: aerial bombing, ground entry, and harm to non-combatants
The text presents the dilemma in Jenin: a confined area in which terrorists had barricaded themselves, with non-combatants present as well, and the choice between bombing from above and entering on foot. It describes that in practice troops went in on foot and about twenty reservists were killed because of ambushes and booby-trapped doors, and it raises the question of what would have been right to do had the price been known in advance. It also raises the option of “doing nothing” or imposing a siege, and formulates the basic halakhic question as though a rabbi had been asked and had to rule. It adds that the dilemma is complicated also because the decisions are made by political and security echelons, not by the halakhic echelon.
The rabbi’s role versus the political-military echelon and the race of authorities
The text asks what a rabbi’s role is when he is asked about a security decision: should he serve as an adviser for minimizing halakhic damage, or should he say what Jewish law requires to the best of his understanding. It presents the position that it is not the rabbi’s role to give “circumventing advice” with minimal damage, but rather to state the halakhic demand, and the decision whether to obey it belongs to the decision-makers. It frames this as a problem of policy and authority, but asks to set it aside in favor of clarifying the principled halakhic issue.
Correlation between left–right politics and positions on harming non-combatants
The text argues that there is a clear correlation between the distribution of positions on harming non-combatants and views associated with the security left–right divide, and asks why a moral question of this sort does not produce four groups but in practice tends toward two. It presents this as parallel to other “correlations” in which positions on apparently unrelated issues were in practice determined by one’s main ideological position, such as the debate over whether Rabin had a mandate to return the Golan, which in practice was decided according to whether one supported or opposed an agreement with Syria. It accepts the criticism that the statement “the right is always in favor of wars and the left is always against them” is not historically accurate, and agrees that the Labor movement created the militaristic ethos of the state, but still argues that sometimes such correlations are hints of a real connection. It seeks to clarify the halakhic issue in a focused way in order to understand whether there is a deep conceptual connection that explains the correlation.
Rabbi Yisraeli’s responsum following Qibya and the claim about “laws of war”
The text describes how few halakhic clarifications there are on this issue, and how many of them rely on Rabbi Yisraeli’s responsum written following the Qibya operation. It presents Rabbi Yisraeli’s conclusion as forbidding harm to innocent people within ordinary life-saving considerations, without distinguishing between Jews and gentiles, and stating that there is no permission to kill one person in order to save oneself. It describes how Rabbi Yisraeli adds that there are “laws of war” within which the considerations change, and criticizes the fact that the discussion sometimes remains intuitive and undefined: what permits and what forbids, and what the source of the rules is. It cites Rabbi Sheviv in Techumin, who suggests that the laws of war operate according to accepted international custom among the nations, because there is no other orderly halakhic source.
The essentialist model: changing the ontology without changing the Jewish law
The text agrees with an essentialist model in the sense that the collective is a basic actor and not just an aggregate of individuals, but disagrees with Rabbi Yisraeli in that it does not accept a change in the “laws” themselves. It presents the possibility of applying the same halakhic principles of the individual to a collective entity, in a way that replaces in the law the “x” of the individual with a “collective” such as the Jewish people or the State of Israel. It uses an analogy to corporate law, in which a corporation is considered an independent legal entity that can be sued, and the screen separating shareholders from the corporation creates different results even though the basic legal tools are similar. It presents Amalek as an example of a law applied to a collective: an individual’s repentance is not enough if the addressee is the nation, whereas leaving the collective through conversion changes the affiliation and therefore changes the status. It compares this to women’s obligation in Hakhel even though it is a positive commandment dependent on time, because the obligation is directed to the Jewish people and everyone who belongs to it is drawn into the collective obligation.
Risking life in war: the individual who is not in danger and the threatened collective
The text raises a difficulty regarding conscription and risking life: if an individual is forbidden, according to most halakhic decisors, to place himself in possible mortal danger in order to save others, how can he go to war if he could simply “run away to Australia” and save himself. It suggests that the solution lies in the fact that the collective is in danger even if the lone individual can escape, and therefore it is permitted and even required to fight on behalf of the collective. It distinguishes between an obligatory war and helping Israel against an enemy, on the one hand, and a discretionary war on the other, and admits that a discretionary war raises a harder question if there is no existential danger to the public. It again emphasizes that the novelty is not inventing “laws of war” but rather that the entity under discussion is collective, and the application of the individual rules is carried out toward it.
The halakhic framework for the dilemmas: “a person may not save himself at the cost of another’s life” versus the law of the pursuer
The text suggests that all the central ethical dilemmas of this type are a clash between two principles: “be killed rather than transgress” in the case of murder, formulated as “a person may not save himself at the cost of another’s life,” versus the law of the pursuer, which requires saving the pursued person even by killing the pursuer. It presents the Talmudic formulation “What makes you think your blood is redder?” as the rationale for not preferring one person’s life over another’s. It cites Tosafot in Yevamot about a person falling from a roof who may kill someone else, where Tosafot rule that he is not required to veer off in order to save the other if that will cause his own death, and explains this as preferring passive omission when there is no value-based way to choose between bloods. It connects this to the trolley problem: the distinction between acting so as to divert and kill, versus not acting and allowing circumstances to kill, and argues that quantity by itself usually does not change the Jewish law, so one may not kill one person to save even three or ten.
Why the law of the pursuer is not a contradiction: creating the situation, Rashi, and the punitive aspect of the pursuer
The text explains that the law of the pursuer is different because the pursuer created a situation of “either me or you,” and therefore cannot hide behind the claim that all blood is equal. It presents a direction in Rashi according to which killing the pursuer saves both the pursued person and the pursuer from the sin of murder, and thus creates a tilt that justifies action. It emphasizes that the question does not depend specifically on guilt, and cites the dispute over whether a minor or a mentally incompetent person can be a pursuer, where the ruling is that sometimes they can be killed even though there is no culpability, because they are the source of the danger. It brings the example of a fetus endangering its mother, where the Talmud explains “they are pursuing him from Heaven,” to show that this is not the ordinary law of the pursuer, and the permission depends on the distinction between the fetus’s status before and after the emergence of its head. It adds the approach of Afikei Yam and the Chazon Ish, according to which one who kills a pursuer acts as a judge and executor, and brings proof from the rule of “he receives the greater punishment” in the case of a pursuer who broke vessels, which hints at an underlying liability to death in the status of a pursuer.
“Laws of war” as a last resort and the need for an orderly method
The text opposes using “laws of war” as a last rabbit pulled out of the hat in order to permit things when the regular laws do not work out. It argues that without clear standards and sources, the appeal to laws of war remains intuitive, and therefore proposes moving forward from existing and systematic halakhic principles. It points out that halakhic tradition developed mainly around murder and preservation of life at the individual level, because the Jewish people did not conduct wars in a way that required a developed state-level halakhic system during the period of the Oral Torah, and therefore public application requires a methodological clarification of the move from individual to collective.
Jew and gentile, Torat HaMelekh, and the claim about “rights” versus considerations of prohibition
The text describes the position of Torat HaMelekh according to which there is a difference between a Jew and a gentile, because killing a gentile does not fall under “Do not murder” in the same way but under “Whoever sheds the blood of man, by man shall his blood be shed,” and therefore it is claimed that his blood is “less red,” making it permissible to prefer him in a rescue dilemma. It rejects the assumption that the problem in “Who says?” is the severity of the prohibition, and argues that the issue concerns rights and limits of authority: a person is not entitled to make halakhic calculations on territory that is not his, whether that territory is money or another person’s life. It illustrates this with an analogy of choosing between “Do not covet” and “Do not steal” in order to take a book, and argues that even if such a calculation were “correct” halakhically, it would not grant the right to act upon someone else’s property. It concludes that the prohibition on killing an innocent person in order to save oneself does not derive only from the definition of “Do not murder” but from a structure of ownership and the right to decide over body and life.
Religious court, the collective, and a “licensed” pursuer: Pinchas, the blood avenger, and an agent of the religious court
The text cites the Talmudic statement that if Zimri had turned around and killed Pinchas, “he would not be executed for that,” and presents the question of the Kli Chemdah as to why Zimri is not simply required to stop sinning in order to save himself. It presents an answer according to which Zimri owes nothing to Pinchas and may defend himself even against a pursuer acting “with permission,” just as a person is not required to give a robber a shekel merely to prevent a situation of pursuer. It cites the Mishneh LaMelekh, who extends this to the blood avenger: even if the blood avenger has permission or even a commandment to kill the accidental killer, the killer can still be considered the pursued party and defend himself. It raises a further difficulty regarding an agent of the religious court carrying out a death sentence, and presents the distinction that the agent acts on behalf of the public and in the name of the condemned person himself as part of the public, so this is not a clash between “your commandment” and “my right,” but an action attributed also to the condemned person as part of the public obligation. It concludes by noting that this point brings us back to the individual and the collective: where the public is the addressee of the obligation, the individual does not stand opposite the public as a stranger, but exists within a system that obligates him as well.
Full Transcript
[Rabbi Michael Abraham] Today we’ll try to talk about the relations between the individual and the collective. I’m not going to go back again over all the summaries and all that, because then once again we’ll spend half the meeting, half the lecture, on checking what the relation is between these two models, how they appear in the context of laws of life and death, harm to innocent people, and so on, because there too this has implications. And I think last time I already started talking a bit about this article, I wrote an article on this issue that was a response to an issue, to a collection of articles in an issue of Tzohar—Tzohar the journal in its earlier phase, now it’s opened again. And there was a whole series of articles there in which, basically, in every one of them a dilemma appeared that was connected to this question. Meaning, what is the relation between how much I relate to the individual and how much I relate to public considerations, where the individual is part of the public fabric. It even begins at the level of how to view a ruling of a religious court. Some lawyer, Elkana Kurtzman, wrote an article there about the question whether a religious court counts as a corporation on the legal level. In other words, can you sue a particular judge, or is your claim against the religious court? And in that sense this isn’t specifically connected to the public, to the Jewish people as a whole, like the community we talked about until now, but in this case as a limited company, meaning like a company, like a legal corporation that is itself a legal entity that can be sued, that can be addressed on the legal plane, and not only through the people who populate it or operate it. That was one context. There was, for example, another discussion there—Rabbi Ariel wrote an article about olive harvesting, about interference with olive harvesting by Palestinians. At the time there had been some incidents around that issue, and he made an important distinction there, Rabbi Ariel did, a distinction that many people don’t make, it seems to me: a distinction between ownership and sovereignty. A lot of times when people talk, say, about 1948, the Nakba, yes, that the Palestinians were expelled and their land or their house was taken or something like that—and in that discussion people don’t always distinguish, there are two aspects that need to be discussed, and they don’t always distinguish between replacing sovereignty and replacing ownership. Meaning, when you expel someone who has a certain asset and take his asset, that’s theft at the level of private property, assuming you expelled him and took his property—I’m not getting into the historical truth right now. But on the other hand, that general claim that says we basically imposed some envelope of sovereignty on the territory—so even if we didn’t expel anyone, we still put him in a new situation, because he’s still the owner of the house but under a different sovereign envelope, whereas before there wasn’t a sovereign envelope; there was the Mandate, whatever, all part of the Palestinians’ historical inventions. But they also talk about replacement of sovereignty. And by the way, the same thing comes up in the context of relations with Neturei Karta, the Haredim in Mea Shearim and so on, where there too people often don’t understand that—what do you mean, you’re a citizen of this country, how can you not obey the law? So I happened to talk with a few such people: what do you want from my life? I lived here, I was here before you, before you were born I lived there. You came and put over me some sovereign umbrella called the State of Israel, which has sovereignty also over this area, it declared that it has sovereignty over this area too, and now you also want me to obey your law—but what happened?
[Speaker B] But did he accept Israeli citizenship?
[Rabbi Michael Abraham] He didn’t accept anything, he lives there and none of it interests him. Neturei Karta? They’re not Israeli citizens? I don’t know, he doesn’t think so, he doesn’t want to, in my opinion he isn’t, in my opinion.
[Speaker C] He isn’t.
[Rabbi Michael Abraham] Maybe he’s a citizen by implication, but he doesn’t accept anything upon himself. I’m not talking about Haredim from Bnei Brak, standard Haredim are something else. I’m talking about those groups.
[Speaker D] Insurance—
[Speaker E] National insurance and all that?
[Rabbi Michael Abraham] Nothing at all, no. They don’t want the municipality, they don’t want the government, nothing. They don’t want anything. Don’t come here, don’t take out the garbage. They have their own organizations? Hm?
[Speaker E] No, no, they don’t want services from the municipality at all. Do they have social organizations, internal services?
[Rabbi Michael Abraham] They would organize themselves if no one collected it for them. After all, they don’t live in a defined place that’s only residents like that. They don’t let them not collect it? Of course. They don’t let them go without collection either. Meaning, the municipality has responsibility for the area. If there’s a resident there who isn’t like that, he can sue the municipality if they don’t give him services. You can’t distinguish within the area. He says: what do you want from me? That’s your problem. You put over me an umbrella of sovereignty. I was here first. You don’t interest me, and I don’t want to keep your laws. That’s a claim, a significant claim. A lot of times the feeling is: what, they don’t obey the law, they’re not loyal to the state, they don’t identify with it, this state means nothing to them, and that’s that. But what do you want from me? You came here, landed on me from above, and now I also have to be loyal? Okay, there was a whole series of articles there, and that’s what kind of got me going on this fundamental discussion, which I somewhat stopped until now at the philosophical level, but here I wrote it in a specific halakhic context. So I started talking about—yes, I did tell you this, right?—about that head of the halakhah branch there in the rabbinate. So this clarification has to be made about harming an innocent person, and in the end this clarification is also connected to our discussion: how do I relate to the individual within a collective. Now basically the dilemma is this, as I already described, I think: in Jenin there was some very specific, defined area, not all that large, inside which there were terrorists defending themselves, shooting, and it was impossible just to enter that area casually. And there were two options: either bomb it from above and somehow flatten the area, or parts of it, houses from which there was shooting or something like that—I don’t know the details exactly—or go in on foot. And in that area there were also people—meaning people not involved in the fighting, okay? In the end they went in on foot and around twenty reservists were killed. There was some serious fiasco there, all kinds of ambushes and booby-trapped doors and things of that sort, and they got horribly entangled there. And that’s it. Now the question, of course, is—it’s easy to be wise after the fact—but assuming I know that these are the options, what am I supposed to do? I assume that if they had known in advance that this would be the situation, they wouldn’t have gone in, in my opinion, in my assessment, they wouldn’t have gone in. Nobody enters a place where he’s going to lose twenty men; this was a small operation, not a war. In war twenty men may not sound so terrifying—there are hundreds of fatalities there—but here we’re talking about almost all the fatalities of that operation, Defensive Shield, being in this one event. So the question is what do you do in such a situation? Is there justification for bombing from above, or do you not go in and also not bomb from above and simply do nothing—that’s also an option. Do nothing to them, leave them there and go away, I don’t know what you do, put them under siege, I don’t know. But either you can’t do anything, or bomb from above, or whatever. The problem is doubly charged because here, of course, there’s also competition, what’s called a race of authorities in personal-status matters; here there’s a race of authorities between the political and military echelon and the halakhic echelon. Right? Meaning, who asks the rabbi what to do in such a case? These decisions are made by political and security echelons. So on that too I think I spoke, this issue of what a rabbi’s role is in such a situation. Is he supposed to be an adviser for halakhic damage control, or is he supposed to say what Jewish law says to the best of his understanding? And if you don’t want to do what Jewish law says, that’s your decision—but don’t ask me for advice on how to bypass Jewish law with minimal damage. Right, if the question is whether to eat kosher by Torah law from A or by Torah law from B, then I tell you: you have to eat kosher all year, that’s it. Don’t ask me for an opinion on how to minimize damage; that’s not the rabbi’s role. So that’s a policy question, of course, but I’m saying leave all those questions aside. The principled halakhic question—suppose they really did ask the rabbi and he had to decide—what are you supposed to decide in such a case? So often this matter—and this is already a first hint toward what comes later—I said that at the end I’d get a bit to left and right at Ido’s request—the distribution of opinions on this issue for some reason has a pretty clear correlation with a left-right worldview. As always.
[Speaker D] Maybe it’ll turn out not during the lecture, but during the—
[Rabbi Michael Abraham] Okay, so I’m saying that was one of the questions that bothered me even before I started looking into this issue.
[Speaker D] Why is this connected to left and right? You’re assuming here something—
[Rabbi Michael Abraham] About left and right? Economic left and right… no, I’m talking now about security left and right, not even economic. The relation between economic and security is another question. I’m saying leave it, let’s talk—
[Speaker D] About left and right, what we call here left and right, the security one. The security militants or not.
[Rabbi Michael Abraham] Historically? Individual rights and the rights of the individual? No, no, as I said, not the socio-economic one. I’m talking about security now. Socio-economic is another expansion. Maybe we’ll get to that too. But on the contrary, I start from the smaller question. You know that in clarifying a complicated question you have to start with focused material. Meaning, let’s begin, let’s see what happens with focused material, and then ask what happens with broader material. So first of all I want to examine—even here it isn’t simple—what the connection is to left and right; so all the more so in the socio-economic sphere, what the connection is there. But it seems to me that from here we’ll start to get hints. So yes, this is some kind of hint—or a difficulty, you can decide—but there is some difficulty here that cries out for explanation. What’s the connection? In the end, if you think that we have a right to all the land and that anyone who opposes us should be killed and all sorts of things, fine. But what about someone who isn’t opposing us? There’s a moral question here. If someone is someone you’re allowed to kill, okay, a terrorist, no problem—the right-winger wants to kill them all—but those are terrorists, people who threaten you. What about people who are not involved? That’s a moral question that isn’t necessarily connected to the general political question. And therefore, with regard to that, it wasn’t necessary—or at least I wouldn’t necessarily have expected—the distribution of opinions to follow those same lines of left versus right. But it does. We talked in one of the previous series about spurious correlations, right? Did Rabin have a mandate to return the Golan or not, about a connection that somehow arose in practice between questions that on the face of it, in theory, have no connection. The question whether morally a prime minister is allowed to change his mind when things look different from there than they do from here, but before the election he promised something else and was elected on that basis. Or whether he’s not allowed to change his mind and has to go back to the people and hold another election and tell them: friends, these are the facts; if you give me a mandate, fine, and if not, then you decide what you want to happen. There too, the decision whether Rabin had a mandate or didn’t have a mandate was determined by the question whether you were for an agreement with Syria or against an agreement with Syria. And apparently there’s no connection at all. One is a question of political morality, and the other is a question of ideology—or security assessments, whatever. But these are two independent questions. Yet there was a connection between them, a very clear connection, not a marginal one. So here too, it’s the same thing.
[Speaker C] There weren’t four groups, there were only two.
[Rabbi Michael Abraham] Right, so here too, basically, one might have said there would be right-wing people who oppose bombing from above and right-wing people who support bombing from above, left-wing people who oppose and left-wing people who support. Meaning, I would have expected four groups, but there were only two.
[Speaker G] What do you mean by “there were”? In the Jenin issue. No, what does “there were” mean? In what sense?
[Rabbi Michael Abraham] If you asked people what they think about bombing from above. No, I’m going by the impression you get from asking people around you. You can get the impression yourself. It’s completely obvious. And again, correlation.
[Speaker C] There are people who can hold a more complex position.
[Rabbi Michael Abraham] The right is always in favor of wars and the left is always against wars. Period. Any war that opens up, the right is for it. It doesn’t matter at all whether it’s justified, whether it will achieve its goals, whether it won’t achieve its goals, whether it’s stupid—it doesn’t matter at all. If there’s a war, if you’re right-wing, you’re for it. That’s it. If you’re left-wing, then you’re against it.
[Speaker D] It wasn’t black and white, the gray also correlated. Meaning, to what extent you think—so it’s not certain that, as you said, everyone either supported bombing or supported—
[Rabbi Michael Abraham] Social phenomena always have gray areas.
[Speaker D] But in general, even in the gray there’s correlation.
[Rabbi Michael Abraham] Of course, correlation. That’s why I’m talking about correlations and not identity. A correlation of 0.7, fine, not 1.
[Speaker D] Up until the Lebanon War, your statement isn’t correct. Even what was considered the left, until the Lebanon War—
[Rabbi Michael Abraham] Before the Lebanon War there was no left.
[Speaker B] Before the Six-Day War there wasn’t one at all.
[Rabbi Michael Abraham] Before the Lebanon War there was no left.
[Speaker B] There wasn’t—
[Rabbi Michael Abraham] There wasn’t a left in the sense we’re talking about today. The Mapai people were extreme right-wingers.
[Speaker B] Maybe there was a certain group around Tabenkin.
[Rabbi Michael Abraham] No, no—extreme right-wing in the political sense, not socio-economic. Political in the sense of attitude to the land, in the sense of willingness to fight, in the sense of—
[Speaker E] Who—
[Rabbi Michael Abraham] Whoever created all the accusations of militarism and so on. The ones who created militarism here in the State of Israel were what today is called the Labor Party, not Likud. That is, it’s obvious: the whole militaristic ethos of the State of Israel comes from the school of the Labor movement.
[Speaker D] Very true. As long as it was fighting against armies. Right, right.
[Rabbi Michael Abraham] Now, these correlations—I do want to qualify a bit the criticism I had of spurious correlations and say that often such correlations are a hint of a connection that really is real. It’s not necessarily a failure. I too need to check myself—maybe the fact that I think there’s a spurious correlation here, that there’s no connection between the questions, maybe that’s wrong. Maybe there really is a connection between the questions. And I think that here there is such a hint. Here, for example, I want to argue that there is a connection between the questions. This isn’t a spurious correlation. It’s understandable why right-wing people are generally there and left-wing people are generally here. I’m speaking about correlation on the general level. So in order to get there, I want to start now from the beginning. I want to try to clarify this issue. The halakhic clarifications that have been made on this issue are, first of all, few, but almost all of them rely on a principle that appears perhaps for the first time—I don’t know if for the first time, but this is what’s usually cited—in a responsum of Rabbi Yisraeli, which was written following the Qibya operation. And there the question arose whether it is permissible to harm innocent people in the course of—it was a reprisal operation there, never mind, some military action. And Rabbi Yisraeli, in a way that very much surprised me, in a very long responsum that’s pretty exhausting to read—there are shorter versions you can read too, summaries of his position were published, but people rely on that responsum a lot.
[Speaker E] Was that material for matriculation exams?
[Rabbi Michael Abraham] Yes, people rely on it a lot. No, no, he himself later published, I think, some somewhat shorter articles that one really can read. In any case, his basic claim—quite surprisingly, if you want correlations, for example—is that first of all it’s forbidden. It’s forbidden to harm innocent people. That’s unequivocally his conclusion. We wouldn’t have expected Rabbi Yisraeli’s conclusion to be that, if we’re talking about ideological correlations with this question. But he doesn’t disappoint. Meaning, in the end he says: yes, but there are laws of war. In other words, within the ordinary life-saving considerations, this is forbidden. You can’t harm one person in order to save yourself or save someone else—no, it’s forbidden to do such a thing. And the fact that they are gentiles also makes no difference—that too Rabbi Yisraeli writes. There is no difference between gentiles and Jews, parenthetically regarding Torat HaMelekh, whose basic thesis was that there is a difference. By the way, from the standpoint of halakhic sources that’s not absurd, even though I don’t agree with it. But it’s not absurd. From the standpoint of halakhic sources, if you read them, you can definitely see sources of that sort. So in short, there is also no difference between Jews and gentiles. But okay—there are laws of war. And when you go out to war, the whole thing works differently. Now there he doesn’t get into—I’m formulating your question because I really do want to skip it—he doesn’t get into the question: so what are the laws of war? How do we clarify them? And that is very typical of contemporary discussions, modern discussions on this topic. In the end, our halakhic tradition—and we spoke about this—does not deal with how to run a state, how to conduct wars, and so on. There are a few references to the war of the house of David or something like that, but that wasn’t an actual issue in the period in which Jewish law developed. The Jewish people did not wage wars during the period of the Oral Torah. And therefore the halakhic discussions are mainly discussions about murder and preservation of life. Meaning, what am I permitted and forbidden to do as a private person; that is, what am I permitted and forbidden to do when my life is in danger and someone is threatening me, innocent people, and so on.
[Speaker D] But there already was the period of Bar Kokhba and so on, and there was already quite a bit of Oral Torah.
[Rabbi Michael Abraham] Not really. Fine, Rabbi Akiva is the era of the Mishnah, the beginning of the era of the Mishnah, the middle of the era of the Mishnah. But where is it? It’s not in the Mishnah; there’s no developed topic there at all.
[Speaker D] It didn’t trouble them?
[Rabbi Michael Abraham] It didn’t trouble them, it didn’t trouble them—but it wasn’t—there was—
[Speaker D] You had to wait in order to tell Bar Kokhba whether he’s allowed to wipe out this whole city or not?
[Rabbi Michael Abraham] No, there wasn’t a city. That was a war against an army, the Roman army. There weren’t Roman residents here.
[Speaker D] And there’s also the calculation involving your own people.
[Rabbi Michael Abraham] The fact is that there isn’t—meaning, in the Mishnah in general most halakhic topics—not all of them—are not developed in the Mishnah; at most they’re mentioned.
[Speaker E] And there were Hellenistic cities that they didn’t burn down completely; maybe there was no need, fine.
[Rabbi Michael Abraham] Those cities too, yes, no, fine. Good. In any case, what does the contemporary modern halakhic / of Jewish law discussion do? It takes sources that deal with relations between individuals and tries to apply them on the public plane. But here it’s very important how you do that. The question is whether your model is the essential model or the quantitative model, in the terms I talked about earlier. Because that can change phase. We talked about liquidity, which is a property that suddenly appears on the collective plane and has no hint on the private, individual plane. So here too, basically, what Rabbi Yisraeli does is assume the essential model. I’m translating now—he doesn’t write this—but that’s basically what he’s doing: he assumes the essential model. And he says that at the collective level, some new kind of discourse appears. You can’t take the private laws and apply them and just say, okay, now it’s a collective, but it’s still the same form of reasoning, because then it would have been forbidden. And therefore he says that here, at the collective level, something new appears. There are laws of war. Laws of war exist only at the level of a collective; wars are between nations and so on. And since that’s the case, I can’t derive it. After he does a long and exhausting clarification, as I said earlier, in the end he says, fine, but here these are laws of war, and therefore the whole business is not… not relevant. The structure of the responsum is very interesting, but behind that responsum there is actually a very deep conception of the essential transition from the individual to the collective. You can’t take discussions about individuals and apply them to the collective plane. But here too, you can look at it in two ways. On the principled level I agree with the essential model. I don’t agree with what he did with the essential model, and that’s the difference between two ways of relating to the essential model—it’s still the essential model. Meaning, in the essential model you can say: new forms of discourse appear here, entirely new principles on the national collective plane, such as wars. And you can say that you apply all the principles that apply to an individual person, only on the plane of collectives. The collective is indeed a collection of private individuals, and at the level of the collection of private individuals there is no permission to harm innocents in this case. But the collective—when you relate to the collective as the basic entity that is here on the map, that is the basic actor in the arena we’re in—then the result can be different, as I’ll try to show. Notice that here too this is an essential model, because I’m basically saying: the collective is playing here on the map as a collective, not as a collection of private individuals. If it were a collection of private individuals, it would be forbidden. But since the actors on the map here are collectives, look at this through the laws that relate to private individuals—not a new law. The same law. I can show this from the Talmud / Talmudic text and from the medieval authorities (Rishonim) and from every source. Only instead of the X written in the law, where it says this is a private individual, I put in a collective, I put in the Jewish people or the State of Israel, it doesn’t matter. And now I claim that the law can also be applied to corporations, and the corporation functions exactly like any private actor in the halakhic-moral-legal arena. Okay? That too is a way of looking at things that is based on the essential model, because I’m also saying that what’s playing here is not the collection of individuals but the collective. But the difference is that the laws are the same laws. When we relate to a company as a corporation, I think—I’m not very expert in these fields of course, in general and certainly not in law in these areas in particular—but it seems to me that the basic reasoning is the same reasoning as with individual human beings. The big innovation is only that a corporation or company can also be considered a legal entity like an individual, and you can speak to it: you’re liable, you’re exempt, there is a tort claim, there isn’t a tort claim—when the “you” here is a corporation, not any private person. And therefore, for example, if the corporation has no money, even if all its owners are millionaires, as long as you don’t lift the corporate veil there’s nothing to be done, because we sued the corporation. That, for example, is a law of the essential model. It’s an essential view of the corporation—that it is not the collection of people—because if it were the collection of people, then dip into their pockets. The company’s money is the aggregate of the money of the private individuals who compose it. But if you see the company as a corporation, then you say: no, I’m talking to the corporation; I don’t know who the people are who inhabit it. So that too is an essential model. But still, although I relate to the corporation as a certain entity that is not just the collection of individuals that compose it, the laws by which I judge it are the same laws that I apply to a private individual. And in that sense it’s not like Rabbi Yisraeli, because Rabbi Yisraeli claimed that the laws also change, not only that the ontology is different—not only the theory of being, yes, what are the entities I’m talking about that are acting here—but also which laws apply here. And I don’t agree with that transition. Meaning, I think the laws that apply here are the same laws, exactly the same laws, and the only innovation is the innovation that the entities you are talking about are collective entities and not private entities. And in a moment we’ll see the halakhic significance; it has halakhic significance, it changes the result.
[Speaker E] Can this concept explain the law of erasing Amalek? That it’s a law on a collective that we have to wipe out, and we don’t find anything like that regarding individuals.
[Rabbi Michael Abraham] Right, yes, I think so. That’s certainly plausible. What’s the explanation? That the Torah speaks about the collective, not about the collection of Amalekites.
[Speaker E] Yes, but this law has no analogy on the individual level.
[Rabbi Michael Abraham] What do you mean?
[Speaker E] Is there a person who would be liable—
[Rabbi Michael Abraham] Of course there’s an analogy on the individual level.
[Speaker E] Without a trial, without guilt?
[Rabbi Michael Abraham] What do you mean? First of all, there is a pursuer.
[Speaker E] But with Amalek it’s an eternal law, that—
[Rabbi Michael Abraham] Because he is an eternal pursuer. Because he is an eternal pursuer. What do you mean? A spiritual pursuer, a physical pursuer, it doesn’t matter, “who happened upon you on the way.” The whole way of looking at him is as some kind of pursuer.
[Speaker E] But on the individual level there is the possibility of repentance, there is an option to repent.
[Rabbi Michael Abraham] Exactly, that’s the point.
[Speaker E] With Amalek there isn’t that ability to repent?
[Rabbi Michael Abraham] No, so that is exactly the point. Here the corporate model comes in. Here I agreed with you, not on the plane of… that’s exactly it—you were proposing to do as Rabbi Yisraeli did. You see that there too there’s a change in the laws. I’m saying no, they are the same laws, only the laws apply to the collective called Amalek and not to the collection of Amalekites. What does that mean? That if one Amalekite repents, it won’t help, because in the end the factor standing opposite me is the Amalekite nation. What would happen if the Amalekite nation repented? Interesting question. It could be that in fact it would be canceled. The question is whether that could happen or not—I don’t know if it can happen, maybe that’s their character, maybe it’s deterministic for them, I have no idea. It’s a hypothetical question because today there are no Amalekites. But on the principled level, yes, it could be that if the entire Amalekite nation repented then it really would change. But if one individual Amalekite repented, that changes nothing, because he is obligated—like we discussed with the women who are obligated in Hakhel even though it is a positive commandment dependent on time, because the one obligated in Hakhel is the Jewish people, and everyone who belongs to the Jewish people is obligated in it, even though a woman in herself is exempt from time-bound positive commandments, because the addressee to whom this law is directed is the collective. Okay? In that sense I see the essential model there, but not in the sense Rabbi Yisraeli…
[Speaker D] You can relate to both simultaneously. I can relate to this person as part of the collective, like with Maimonides and the city and the person who… yes, clearly, and then weigh it together.
[Rabbi Michael Abraham] No problem. But I’m saying that if I do not recognize his repentance, then clearly this is the essential model. What you’re saying is that even though I relate in the essential model, it could still be that under the individual hat one must also take it into account—and that’s true. For example, “descendants of Haman taught Torah in Bnei Brak,” that’s what they say in the Talmud / Talmudic text, right? They ask there: does it help? After all, they should have been killed. How did they accept them—how did they convert them at all? An Amalekite comes before you wanting to convert—you should have killed him, no? How did they convert them, why did they accept them? Apparently, probably—I don’t remember the discussion right now, maybe it was by mistake—but as far as I remember there are some discussions among the commentators. I need to look up the source, I don’t remember right now. And they argue that if he comes to convert, then yes, he is accepted. Because he… what happens? As a result of the conversion, he stops being an Amalekite. The point is not his repentance—that now there is a righteous Amalekite. A righteous Amalekite would still have to be killed. Rather, the result of conversion is ultimately that he became Jewish; he is no longer an Amalekite, so how can you kill him? Now true, when he comes to you he is not yet. Fine—but he is a potential Jew. He does not want to repent; he wants to leave the Amalekite collective. So if he wants to leave the Amalekite collective, what do you want from him? Then you can’t make claims against him by virtue of his belonging to the collective.
[Speaker E] A line I heard in the name of Rabbi Medan is that he explains the death of Rabbi Akiva this way: Rabbi Akiva, since he was the son of converts, may have been a descendant of Amalek, and even the holiness of Torah did not help him escape that fate.
[Rabbi Michael Abraham] So the Romans fulfilled the commandment of erasing Amalek. What? So the Romans fulfilled the commandment of erasing Amalek? What righteous people. That’s a bit of a strange thing.
[Speaker E] That’s what he… because what is said about Rabbi Akiva? “Be silent; thus it arose in My thought.”
[Rabbi Michael Abraham] That’s such a puzzling answer that you can take—
[Speaker E] it into realms of mystery, into places that are not understood.
[Rabbi Michael Abraham] Yes, but even that doesn’t make sense to me, it’s not more understandable.
[Speaker E] Not more understandable.
[Rabbi Michael Abraham] That’s what I think.
[Speaker E] So it connects something not understood with something not understood.
[Rabbi Michael Abraham] There’s an English expression—we once talked about it—that means explaining one unclear word with ten words that are even less clear. Regarding the obligation—
[Speaker F] through risking one’s life by going out to war—how does that point fit in here? That’s what was hard for me in Rabbi Yisraeli’s approach, right? That basically laws of war are something else. If I take the collective and position it as…
[Rabbi Michael Abraham] I don’t agree at all. That’s the model I’m going to propose. I hadn’t thought of it, but that’s the model I’m going to propose. It’s the essential model, not the quantitative one. The essential one, right? But the essential model in the version I’m talking about, not Rabbi Yisraeli’s. Because all you’re really saying is: I, individually, am forbidden to endanger my life. Very nice. But the public ultimately has to conduct the war. You can’t conduct wars without individuals risking their lives. So how is the public to conduct a war if every individual takes care of himself? So here I say: the individual is permitted to risk his life even though he himself personally is not in danger—he can flee to Australia. But ultimately the public is in danger. When you look at it as a collective, there is an entity here that is in danger, and it is permitted to fight and must fight.
[Speaker F] But how is the public permitted to endanger itself?
[Rabbi Michael Abraham] Ah, that—you’re talking about an optional war. That’s something else. I’m talking about a commanded war. Even “helping Israel against an enemy” even. There too the same question exists. From “helping Israel against an enemy” I go to Australia; no problem, I’m not in danger, so why should I risk my life here? And according to most halakhic decisors, almost all of them except for certain versions of Maimonides that bring the Jerusalem Talmud—and I mentioned this once, I think—he says that I am permitted, or perhaps required, to put myself into a doubt of mortal danger in order to save someone else. According to most halakhic decisors, this is forbidden. So if I can save myself, then what permission do I have to fight and put myself into a doubt of mortal danger in order to save others who are in danger? I’m going to Australia.
[Speaker B] But you’re endangering the collective. What? You’re endangering…
[Rabbi Michael Abraham] Okay, and therefore I say that here we need to arrive… so here I come to this thinking about the collective. That the collective here is threatened, not the individuals. So in fact I need to move to the collective. But after I’ve already moved to the collective, the halakhic patterns or the halakhic discourse I use is the same discourse as with individuals. The innovation is only an ontological innovation, not a halakhic one. Meaning: who are the entities I’m talking about, not the halakhic principles I’m using. Okay? Now, an optional war—that really is an interesting question. I don’t… I don’t have an answer to it.
[Speaker D] The question is whether it is permitted for it to endanger itself; it endangers many individuals, but the question is whether there is a danger here that the whole public will be destroyed, meaning that all…
[Rabbi Michael Abraham] No, in an optional war certainly not. That’s why I say, this is a difficult problem.
[Speaker D] No, I’m saying, maybe there isn’t that danger there. Meaning, you are not endangering yourself. In a commanded war you’re not… now the whole nation will be destroyed if we go out to war.
[Rabbi Michael Abraham] Not me, the private individual. What permission do I have to go out to war? I’m going to Australia. So they’ll be destroyed, won’t be destroyed—that’s their business. I’m not in… I’m not in danger.
[Speaker D] There is a collective here; is that collective also permitted to endanger itself? Forget about you.
[Rabbi Michael Abraham] No, no, talk about the individual.
[Speaker D] That too is a question, because if you say that this collective is one…
[Rabbi Michael Abraham] If he’s not… if he’s not in danger, then certainly he is forbidden to endanger himself, just like a private individual. What’s the difference?
[Speaker D] No, something here poses the question of relating to it like to a private individual, to the collective. Why? Because then there is a collective that does something that a private person is forbidden to do. What does it do?
[Rabbi Michael Abraham] If it’s not in danger, then it really is not…
[Speaker D] then it really won’t fight. No—an optional war. Oh, we’re back to an optional war.
[Rabbi Michael Abraham] Yes, but to a different way of looking at the problem of optional war in theory, never mind. Fine. So… so here I really want to define this point: that the transition is an ontological transition, but the rules of the game are the same rules. Meaning, on the entity… all right, let’s start a bit. And there’s no need to go and invent such… these inventions of “laws of war” are something people always pull out as though… like the last rabbit out of the hat. Meaning: the regular laws didn’t work out for us—boom! There are laws of war. So everything is fine, that’s fine, it’s permitted. What? Yes, that’s it. Because there you don’t… by what standards do you proceed? Where did these laws of war come from? What are the definitions? What does it permit? What does it forbid? There it remains at the simple intuitive level. Rabbi Sheviv wrote an article about this in Techumin, where he talks about the fact that war is basically conducted according to international custom. International practice is what determines it. Meaning, what is accepted among nations, in the family of nations, as something done in the framework of war—that is also what Jewish law allows to be done in the framework of war. That’s one possible approach, and he also tries to show it, since we have no other source. So fine, if we have no other source, then we go back again to the question of custom, or of what the prevalent practice is. And this is not custom in the sense of “do not abandon the teaching of your mother,” but the common practice—that is what determines it. I want to propose a mode of thought that is more systematic, so that halakhically we can move toward an answer. So let’s begin. There are… all dilemmas of this type, almost all dilemmas of this type that I propose thinking about, are dilemmas between two halakhic principles that ostensibly contradict each other. That is basically the point of departure. One halakhic principle is: one must be killed rather than transgress murder. Murder is one of the three severe transgressions, and if someone threatens me with a gun and says, kill so-and-so and if not I’ll kill you, as is well known I am forbidden to kill so-and-so. I must die and not kill so-and-so. Why? The Talmud / Talmudic text says: “What makes you think your blood is redder? Perhaps that man’s blood is redder.” Meaning, your blood is not redder than his blood; why should he die so that your life be saved? That principle is of course a principle of passive omission. You have to understand. For example, what happens if someone throws me off a construction roof? Now I’m on the way down, and I see that I’m about to land on another person. Okay? Now if I fall on him—this is a case, never mind, a hypothetical case—if I fall on him, heaven forbid, he’ll die, but I might survive. He will die and I’ll survive. I can try to veer aside, tilt myself to the side, and then I’ll smash to the ground because he won’t cushion me, and he will survive. Do I have to veer aside? What do you say? Here it is—
[Speaker E] Basically…
[Rabbi Michael Abraham] I’m going to kill him, right? Am I allowed to kill him in order to save myself? Seemingly I should have to veer aside.
[Speaker E] This is the case of the two in the desert with water enough for only one.
[Rabbi Michael Abraham] So why in… why in killing the other is it not like that? Passive omission. Exactly, passive omission. Tosafot in Yevamot brings this case. Tosafot in Yevamot says: in such a situation, you do not have to veer aside.
[Speaker D] The question is whether you are allowed to.
[Rabbi Michael Abraham] Ah? That’s the question of the Haggahot Maimoniyot—whether you are allowed to. But at least you do not have to. According to most halakhic decisors, you are also forbidden to. Once you don’t have to, then it is forbidden. In contexts of mortal danger, the accepted view is—and we discussed this in the context of “do not fear any man”—that it is either forbidden or obligatory. There is no “permitted.” What does it mean, “permitted” to sacrifice your life? Either you are obligated, in which case you’re obligated, or it is forbidden. And if it is “permitted,” then it is forbidden.
[Speaker D] There was a discussion here about organ donation. So it entered there into some place of: you’re not obligated, but the question is whether you’re allowed to do it.
[Rabbi Michael Abraham] In “do not fear” too it enters that way. I said there are halakhic situations in which it enters that way. But I’m saying, the accepted conception is that in the laws of mortal danger it is either an obligation or a prohibition. Meaning, there is no intermediate state. In any case, Tosafot says that in such a situation you do not have to veer aside. And why? Because his blood is also not redder than yours, just as your blood is not redder than his. Neither one here… it’s not that the other person’s blood is always redder than mine; rather there is equivalence here. And equivalence means passive omission is preferable. If there is nothing for you to do, do nothing. The passive omission that is preferable in this case is to fall as I’m falling. That is—not veer aside, not do anything. In this case, by the way, I am the one who survives. Fine, there are no special favors for others. I don’t have to be… this is not altruism, where I have to care for others more than for myself. Rather this is… this is an important point. Meaning, this view—that I may not kill him in order to save myself—is not a view from his point of view. If it were from his point of view, then it would come out that the other is always preferable to me. Why? Just because he is the other, does that make him preferable? He is a person and I am a person. This is a point of view from the point of view of the Holy One, blessed be He. He says: look, I have two human beings; in My eyes they are both My children, neither is preferable to the other. That is the point of view. So from that point of view, even when I survive and he dies, the conclusion is that I survive and he dies. There should be no sentimentalism—not toward myself and not toward the other. I am supposed to look at it from the point of view of the Holy One, blessed be He. Okay? That’s the… okay. So that settles it in that answer. In any case, that is one principle of “be killed rather than transgress” regarding murder. Let’s call it: a person may not save himself with the life of his fellow. Okay? Meaning, I cannot save myself by harming my fellow’s life. It’s the same thing: be killed rather than transgress murder. Maybe I’ll already say the other side before I state the second side, so that the picture is clear. Opposed to this stands the law of the pursuer. Reuven is chasing Shimon. And now the law of the pursuer says that it is a commandment upon me—not merely permitted for me—to kill Reuven in order to save Shimon. Now here I kill one person to save the other. If it’s the pursued himself, then of course this is literally killing someone to save my own life, no? So how is the law of the pursuer permitted? It apparently contradicts the law that a person may not save himself with the life of his fellow. And if it is a third party, not the pursued, then it’s even worse. You’re not even talking about “your life takes precedence,” as in the flask in the desert. Here you’re a complete third party. One man is chasing the other. The pursuer could come to you and say: what do you want from me? “What makes you think that that man’s blood is redder? Perhaps my blood is redder.” Why are you killing me in order to save him?
[Speaker D] He is the wicked one here, because he is pursuing him.
[Rabbi Michael Abraham] Okay, so that’s… that’s the basic contradiction between these two laws.
[Speaker E] For the pursued himself, this is the law of the burglar tunneling in. What? For the pursued himself, it’s an explicit Torah law: “if the thief is found breaking in.”
[Rabbi Michael Abraham] Fine, an ordinary pursuer is the same thing. What’s the difference? An ordinary pursuer is first of all about the pursued himself, and we see that it also applies to a third party. Also with the burglar tunneling in, by the way, it’s the same. Meaning, if someone breaking in enters my house and you see it—not me, not the homeowner—you can also kill him. Okay? Obligated or permitted? Obligated? No. No. Obligated is something else. If… if it were… that would be an interesting practical difference. I also wrote once about the Shai Dromi law. If the assessment that appears in the Talmud / Talmudic text—that this burglar is basically a pursuer because if the homeowner defends himself the burglar will kill him—if that were a realistic assessment, then it seems to me that everyone who saw a burglar entering a house would be obligated to kill him. Because he is basically a pursuer on his way to kill the homeowner. Now to me it’s clear that this is not correct. Meaning, it’s clear that he is not a pursuer in the ordinary sense. The Talmud there offers some explanations, but it’s not… it’s not really the law of the pursuer. The law of the burglar tunneling in is a different law.
[Speaker C] That’s clear, so we need to explain why. What? I said it’s clear that that’s not the law, but we need to explain why it’s not the law.
[Rabbi Michael Abraham] Why isn’t it the law?
[Speaker C] Why is it really clear that it isn’t?
[Rabbi Michael Abraham] Because it’s not true that the burglar will necessarily kill the homeowner. Is that really true? Is that such a simple assessment? The burglar might just run away. And certainly they’re not talking about the guns you have today and all that. He would have had to kill the homeowner with a knife or strangle him, I don’t know, in their days.
[Speaker C] And the homeowner too can kill him.
[Rabbi Michael Abraham] Exactly. That’s the question. It’s not by virtue of the law of the pursuer. My claim is that the burglar tunneling in is not the law of the pursuer, contrary to what people think.
[Speaker C] So then only the homeowner is allowed?
[Rabbi Michael Abraham] No. But then there would be room to say that regarding a third party it wouldn’t be, or not only the homeowner—it certainly wouldn’t be an obligation. For the homeowner it’s certainly not an obligation. He can leave him to steal and that’s that. For a third party, the question is whether there is an obligation on him. And if this were saving the homeowner, then by the law of the pursuer he would be obligated to kill the pursuer. But if that reasoning is not really a factual assessment—it’s not that the Talmud / Talmudic text is really assessing that the probable situation is that the burglar will kill the homeowner, but only using it as a means to permit the homeowner to defend himself—then if so you are not obligated. That’s plausible. If it’s a doubt—but to kill someone over something where he is only maybe a pursuer, you cannot kill him.
[Speaker C] A very small doubt—
[Rabbi Michael Abraham] Yes, such a small doubt—you can’t kill a pursuer over something like that. If it has already materialized, that’s something else. I’m saying, you’re still at the stage where you don’t know. So here there would be room for some hesitation. Therefore I say it’s not certain that it’s obligatory, but it is permitted. In any case it is permitted because this is permission in order to save property—I’m trying to restrain myself—so the permission to kill him is in order to save property, and therefore it is permitted to do so. In any case, back to our matter. So basically there is here an apparent contradiction between these two laws. Of course everyone feels that this is not a real contradiction, but I’m saying: why are these two laws basically the framework around the whole set of these problems, these ethical dilemmas in cases of life and death, in war and so on? Because when I… I’m already jumping straight to the end and afterward I’ll spell it out more. When I see a certain terrorist whom I need to strike because he threatens me, and next to him there are uninvolved people sitting. So if, when I strike him, I also strike them—I send a missile and it finishes all of them off—a targeted killing, as it’s called. Yes? Fairly targeted. A fairly targeted killing. Okay? It’s called a targeted killing—you know, it’s like, what’s the difference, what’s the difference between a gentile and a complete gentile? I told you once. The difference between a gentile and a complete gentile is that a complete gentile is only a Jew, right? Have you ever heard anyone say of a gentile that he’s a complete gentile? Meaning, whenever they say “targeted killing,” what it means is that we’re talking about a non-targeted killing. Meaning, it’s fairly targeted. Let’s say it’s relatively targeted. Like “the United Kibbutz” and “the Union of Kvutzot and Kibbutzim”—that’s when there is no union, and so everyone talks about unity. Meaning, when there is unity no one talks about it, and when there is no unity then it’s the Union and the United and we’re all united and we need to talk about unity and so on and so forth. So “targeted killing” is like that too. In any case, in a fairly targeted killing, the question is basically: how can it be that I am permitted to kill the uninvolved in order to save myself? Him I am certainly allowed to kill—that’s the law of the pursuer. But regarding them, it’s the law of saving oneself with another’s life. Right? These are exactly the two laws. Meaning, regarding him it’s the law of the pursuer—he is pursuing me, I am allowed to kill him—but they are uninvolved. How am I allowed to kill someone else so that I won’t die, if this is one of the cases where one must be killed rather than transgress? So therefore the big question is really how to classify each case. In every case, the ethical dilemma—in almost every case I can think of—the ethical dilemma is basically the question whether the person about whom I have the dilemma, yes, the dilemma whether it is permitted to kill someone or forbidden to kill someone, whether this person falls under the law of the pursuer or whether he is uninvolved, in which case this is basically saving oneself with another’s life. That is the dilemma. Okay, so I’ve closed the circle; now I’m stepping back. All right? I’ll spell it out a bit more. That was just the general picture. So first of all we need to explain what the difference is, why this really isn’t a contradiction. Fine, so here it can be explained in various ways.
[Speaker D] Just one more question before you spell it out. You didn’t talk about the few and the many. Meaning, that parallel kind of topic—we’ll get there?
[Rabbi Michael Abraham] We’ll get there. I’ll get there at the end. First of all I’m trying to explain the… I’m talking right now about individuals. I’m developing the entire halakhic picture on the plane of individuals. When I apply it to the collective, you’ll suddenly see the implications. Okay?
[Speaker D] No, not even a collective—individuals. A group of ten individuals and one individual.
[Rabbi Michael Abraham] On that I may comment later. According to most halakhic decisors, there is no difference. According to most halakhic decisors, there is no difference. The famous trolley problem. So what if it’s an old person and a young person? One has more years, the other fewer years? And what if… but on the basic level, what difference does it make? However extreme it may be. Quantity does not play a role in the dilemma. One and a thousand? According to most halakhic decisors that does not matter; quantity does not play a role. If you are forbidden to kill one person in order to save one, you are forbidden to kill one person in order to save three or ten. Where—at what point the line is crossed—I don’t know. The question of proportionality will always come up. Maybe, I don’t know. But numbers as such do not play a role. This is the famous trolley problem, you know it? There is… in moral philosophy too, and then they also do field studies about what people think about such situations. There is a train traveling, and you are standing by a switch that can divert the train to one of two tracks. Yes? On one track—the track the train is about to go on—there is a person lying there asleep; you won’t manage to wake him in time. Fine, he is going to die. You can divert the train—wait, no, sorry—there are five people lying there. Okay? You can divert the train to another track where there is one person. Would you do it? Because if you had to divert it from five to one, that’s harder. If you had to divert from one to five—the other way around—from one to five, that would be easier. But if you divert from five to one, there would be room perhaps to say: let’s divert it, after all, here one will die and there five will die. On the other hand, that one I killed; those five I merely did not save. Okay? The circumstances killed them. Exactly. So precisely in these trolley dilemmas, all these ethical dilemmas, all of them basically revolve in the end around these questions: passive omission, pursuer, saving oneself with another’s life, and so on. So why does the law of the pursuer not really contradict the law of saving oneself… that a person may not save himself with the life of his fellow? There are several formulations of this. Already in the medieval authorities (Rishonim) you can see it—they don’t address it explicitly, but you can see it from the overall implication of what they say. For example, Rashi’s position is that the permission to kill the pursuer is because by doing so I save him from the transgression of murder. If I kill the pursuer, it is not only in order to save the pursued—also in order to save the pursued—but saving the pursued in itself, it seems from Rashi—again, he says it very briefly—it seems from Rashi there in Sanhedrin, in the passages about the burglar tunneling in and the stubborn and rebellious son, it seems from Rashi that merely saving the pursued does not justify killing the murderer. And why? Exactly because of the principle: who says your blood is redder? But with the murderer, if you kill him you save him from the transgression of murder. Ah, that already tips the scale, because the consideration is that passive omission is preferable. There is life against life; no one is preferable to the other. Once there is some tilt in one direction, then there is already justification to act. Meaning, since here I gain more—I gain both the life of the pursued and also save the pursuer from the transgression—therefore it is fine. What happens when someone threatens me? When someone threatens me, if I kill the other person, I merely commit murder; I do not… I might save him from murder, the one threatening me, but I myself commit murder. The other is the threatener. Yes, so there it is not relevant. So that’s, say, one explanation that emerges from Rashi. But that is murder, because if you permit it then it wouldn’t be murder; only on that assumption do you save him from murder. Obviously. So the permission builds itself. I’m looking for what the permission is, because on the face of it it is indeed murder.
[Speaker E] Obviously you’re transgressing. If you kill the pursuer, you’ve seemingly become the murderer.
[Rabbi Michael Abraham] No, you saved the pursuer. What do you mean? No, this is not the prohibition of murder; that’s exactly the next—
[Speaker E] Wait, here you have to make a fateful decision. Wait—when you count your pressing the trigger, or do not count your pressing the trigger, in the equation.
[Rabbi Michael Abraham] That’s actually an interesting question. Because look, if I examine the case of the pursuer: in the case of the pursuer, what are the two possibilities? Either the pursuer kills the pursued, or I kill the pursuer. Right? In either case a person dies; in either case an act of murder will take place. Okay? A killing.
[Speaker H] A killing, excellent—a killing or a murder.
[Rabbi Michael Abraham] Yes. But it could be that really, in the background, what lies behind this is that my killing is halakhically less severe than the killing he is about to do. Even before I permit it. I’m saying, if the permission builds itself. But I’m saying, even before I permit it—because I am doing it in order to save someone and he is doing it for no reason. Now even if it were forbidden, never mind, but still there is a lesser transgression here, so it is still preferable to kill the pursuer. What happens when he threatens me?
[Speaker E] Self-defense, yes yes.
[Rabbi Michael Abraham] When he threatens me, then it goes like this: either he kills me in order to save himself, and if he kills me then he has committed murder and a life is lost. Now if I kill the other person, then a life is lost and I have committed a reduced form of murder because it was in order to save myself.
[Speaker D] Yes, but he is innocent. You killed an innocent person, so it comes out the same.
[Rabbi Michael Abraham] Ah, right. So what you’re really saying is that even Rashi’s explanation cannot stand alone. You have to add the explanation I’m about to say, and apparently even in Rashi it can’t stand alone. That’s a correct point, really, I think that’s right. What lies behind this—and obviously this is the intuition—is that when a person creates a situation in which I have to decide either your life or someone else’s life—you created the situation, so you cannot claim, who says your blood is redder?
[Speaker D] You proved that it isn’t. Yes.
[Rabbi Michael Abraham] No, no, you didn’t prove that it isn’t. The Torah itself says: since you created the situation and are trying to use that situation as a shield for yourself, the Torah removes the shield. And if you… we talked about this in the context of: if I threaten you with a gun and say, give me a shekel. Fine? Now you can give me a shekel and everything is fine. Are you allowed to kill me? But you can give me a shekel and solve the problem. What permission is there to kill me? I’m not a pursuer, because “you can save him by injuring one of his limbs”—give him a shekel. It is permitted to kill the threatener by the law of the pursuer. Why is it permitted to kill the threatener? Because I do not owe him a shekel. Why should I give him a shekel? Now once he wants to kill me because I didn’t give him a shekel, he is creating an equation—he wants to use that equation that says: after all, you can give me a shekel, you don’t need to kill me. Therefore, from a halakhic standpoint, clearly you should give me the shekel and not kill me. You are using the law as a shield for your vile actions. Once you use the law as a shield, the law freezes that protection. There is no protection in such a situation. By the way, in my opinion that’s also what happens in the burglar tunneling in in the end. You are using the law as a shield so that they won’t kill you, because just let me steal and that’s all—what’s the problem? You don’t need to kill me. And I’m not—the law says it is permitted to kill him; you don’t have to let him steal.
[Speaker F] What if he didn’t create the situation? If he didn’t create the—
[Rabbi Michael Abraham] The situation? That is a dispute in the Talmud / Talmudic text—for example a minor or a mentally incompetent person. There is a dispute in the Talmud / Talmudic text whether the law of the pursuer applies to a minor or a mentally incompetent person. In practical Jewish law we rule that it does. But even when we rule that it does, the claim is that the minor and the mentally incompetent person really did create the situation; they’re just not guilty, but they did create the situation. This is a case where guilt is not required, but if you created the situation, then your bad luck caused it and you have to bear the consequences. For example, where would the practical difference be? What about a fetus that endangers its mother’s life? Yes, the Mishnah in tractate Yadayim—where is it? A fetus that endangers its mother. So is it permitted to kill it?
[Speaker I] Is that the real pursuer? Is that the original law of the pursuer?
[Rabbi Michael Abraham] Not the original one; it is one of the cases in which the law of the pursuer comes up. The Talmud / Talmudic text discusses it there. The Mishnah says that it is permitted to kill it, but if its head has emerged then it is forbidden. So at first the Talmud / Talmudic text understands this as based on the law of the pursuer, and then it says it can’t be, because if it were based on the law of the pursuer, then even once its head had emerged it would be permitted—it would have to be killed, after all, with a pursuer, even if he is a living person it is permitted, one must kill him. If there is a difference between the head having emerged and not having emerged, that is a sign that this does not derive from the law of the pursuer. So why is it permitted to kill it? After all, when it is inside, it is permitted to kill it, and there is no law of the pursuer. And then there is this idea that the fetus’s blood is less red than the mother’s blood—again, there is some kind of identity of—
[Speaker D] Things. He’s a bit more of a pursuer and a bit less of a person.
[Rabbi Michael Abraham] No, the Talmud / Talmudic text doesn’t say that. The Talmud / Talmudic text doesn’t say that. Wait, we’ll see in a second. The Talmud / Talmudic text says not that, but simply that because its blood is less red, there is no “who says your blood is redder?” here; the blood of a fetus is less red than the blood of a living person.
[Speaker J] But here one has to ask the mother?
[Rabbi Michael Abraham] Ask the mother?
[Speaker J] Maybe she is willing to sacrifice herself?
[Rabbi Michael Abraham] It doesn’t matter. Even if she is willing, it is forbidden for her.
[Rabbi Michael Abraham] It does not depend on her.
[Speaker H] Also in the law of the pursuer we do not ask the pursued.
[Rabbi Michael Abraham] So the point is, when the Talmud / Talmudic text explains why there is no law of the pursuer here, it says: “He is being pursued from heaven.” Why is there no law of the pursuer when it is inside, such that it is permitted to kill it? So it is not based on the law of the pursuer. Because if it were based on the law of the pursuer, then once its head had emerged it would also be permitted to kill it, so it is not based on the law of the pursuer. So why? Why really is there no law of the pursuer here—that is what the Talmud / Talmudic text asks. Why is this not the law of the pursuer? And the Talmud / Talmudic text says: because “he is being pursued from heaven.” What does that mean, “he is being pursued from heaven”? This is exactly the point: he did not create the situation; the Holy One, blessed be He, created the situation. And that is not the same as a minor or a mentally incompetent person. A minor or a mentally incompetent person may have no understanding, but when a minor takes a gun in the street and starts shooting, does the law of the pursuer apply to him? He created the situation, so the law of the pursuer applies to him. There is an opinion in the Talmud / Talmudic text that says no—I said that. But in practical Jewish law we rule yes, because he created it. “You created the situation” does not mean he is guilty. This is not a punishment for a transgression. But if you created the situation, then there is preference for the other side in this balanced equation, this equation of blood. “Who says your blood is redder?” The blood of the one who did not create the situation is redder. The one who created the situation has the obligation to remove the problem, because he is the one who created it. Now this is not because he is guilty, it is not a punishment, but because what can you do? You are the source of the problem, so solve it. Do you understand?
[Speaker F] Also if he was… if some third party created the situation?
[Rabbi Michael Abraham] What do you mean?
[Speaker F] For example, there was a famous TV series in recent years with a chemist, a chemist who knows how to do something unique in the world, and his boss for some reason wants to get rid of him, so he brings in—he forces him to strangle someone else who is going to learn this chemical process, and he knows that the moment he teaches him, teaches him this, then he…
[Rabbi Michael Abraham] Would he have been allowed to kill him?
[Speaker F] The second chemist? Obviously not. Not allowed—definitely not allowed? Yes.
[Rabbi Michael Abraham] Why? “What makes you think your blood is redder?” But he…
[Speaker F] Wait, wait, wait… he didn’t create the situation.
[Rabbi Michael Abraham] No, he didn’t create the situation. The one who created the situation is the boss.
[Speaker F] Right, fine, he’s not in the game.
[Rabbi Michael Abraham] No, that’s exactly the point. If someone threatens me with a gun and says, kill a third person—why there? He also created the situation, after all. If he weren’t here, they wouldn’t be threatening me. That’s not called creating the situation. Creating the situation is the one making the threat. On the contrary, that’s exactly someone who did not create the situation, and therefore the rule applies to him that a person may not save himself at the cost of another person’s life. The one who created the situation is subject to the law of a pursuer. That is exactly the difference—whether you created the situation or not. But I claim that creating the situation does not mean being guilty, at least as a matter of Jewish law. There is an opinion in the Talmud that says yes, and then a minor or someone mentally incompetent באמת would not have the law of a pursuer applied to them. But as a matter of Jewish law we rule that even in the case of a minor—a minor who takes a weapon and starts shooting in the street—you’re allowed to kill him. Why? He’s not guilty; what do you want from him, he understands nothing. Or a mentally incompetent person, someone who just flies into a rage—he has no judgment. Fine, but he is still the source of the problem, and that problem has to be solved. The one who has to solve it is him. What can you do? His brain is damaged, not mine. What can you do? So he created the situation. Okay?
[Speaker E] So if, say, you yourself are falling through the air toward someone, who created the situation?
[Rabbi Michael Abraham] Whoever threw me. It’s the same as the one making the threat. So it’s not relevant.
[Speaker E] Here you’re like that mentally incompetent person, someone who lost control.
[Rabbi Michael Abraham] No, it’s not that I lost control; he created the situation, not me. If it were me, then yes. But it’s not me, it’s a third party. It’s like someone threatening me with a gun—so again, what can you do? Now, okay, so that is basically the relationship between these two laws. Why isn’t there a contradiction between these two laws? There’s another point that comes up in the medieval authorities (Rishonim), maybe more in the later authorities (Acharonim), actually. Ayelet HaShachar or Afikei Yam—Afikei Yam, in part 2, section 40, goes on at length about this. We know that with a pursuer, if the pursuer broke utensils, then he is exempt. Reuven is chasing Shimon to kill him, and in the course of that he also, while he’s at it, damages someone’s property. He is exempt from paying. Why? Because of the rule of receiving the greater punishment. Meaning, he is liable to death, and if he is liable to death then one does not both die and pay. Fine, inherently… So if while pursuing someone you can destroy whatever property you like, as far as you’re concerned, there’s no problem.
[Speaker B] If it’s in the same act, during the pursuit.
[Rabbi Michael Abraham] The pursuit is the act. Does it matter…? No, no, the Mishnah—it’s a Mishnah. If he broke a barrel, he is exempt. A pursuer who broke a barrel is exempt. At every moment he is potentially about to die. Meaning, he doesn’t know at which moment he’ll die. We’re not talking about when he kills and then they kill him. Right, he is liable to death.
[Speaker C] But here there’s a special rule in receiving the greater punishment, that it’s—
[Rabbi Michael Abraham] In the same act—not when the two liabilities come at the same time, but when the two liabilities come because of the same act. You are liable to death for this act of pursuit, so if in that same act of pursuit you also broke utensils, then you are exempt because of receiving the greater punishment.
[Speaker B] The greater one.
[Speaker G] Is there no distinction, in this rule of receiving the greater punishment, between criminal punishment and the civil act? Compensation isn’t a punishment you impose on yourself—it’s to compensate.
[Rabbi Michael Abraham] It’s a novelty, a major novelty, that in receiving the greater punishment there is exemption even from money, not only from fines or punishments. Even from payment for damages—or, I don’t know, theoretically, if I borrowed from you in the middle of this, I’d be exempt from repaying. Meaning, even a payment that is ordinary monetary liability, not punishment—the money is what you are exempted from. But the thing that exempts him apparently has to be a punishment. Now with a pursuer, the fact that he is liable to death is not a punishment. After all, when I kill him, it’s to save the pursued person. I’m not a religious court. So how does such a thing exempt him from payment? It’s not a death penalty that he is liable for. Obviously anyone who sees him must kill him in order to save the pursued person, but it’s not that he is liable to the punishment of death and therefore receives the greater punishment, the more severe one. It’s not a punishment. Afikei Yam says—I don’t remember if this is his proof, but it’s one of the proofs that can be brought on this issue—that the law of a pursuer is indeed a punishment. And later authorities afterward repeat this in different variations. The Chazon Ish writes about this that when a person takes the law into his own hands, the person acts as a judge. Meaning, I am basically both a court and the one carrying out the sentence. I am the rescuer. When I see someone pursuing, I sentence him to death and I kill him. What is the idea behind that? After all, behind it there is a simple logic.
[Speaker C] If there were a religious court here?
[Rabbi Michael Abraham] No. Unless it’s possible. If it’s possible, then yes. But if it isn’t possible, then no. Why not? Because what would the strict law have said? The strict law would have said: wait; if he kills him, then he’ll be liable to death as a murderer, take him to a religious court and they’ll execute him. That’s stupid. For the sake of that legal formalism, will you let two people die? So instead the Torah says: you be the judge and executioner on the spot. Don’t wait until he kills the pursued person; he’s on his way to kill him. Carry out the death sentence now yourself. That’s a big novelty, but it has a lot of logic, and this novelty says that you are acting here as a judge. Anyone who is in the situation is the judge; he sentences him to death and kills him.
[Speaker D] Therefore, “by his own life” comes from that.
[Speaker H] Like Pinchas?
[Rabbi Michael Abraham] Pinchas is the law of zealots striking him; it’s not exactly the law of a pursuer. On the contrary, Zimri could have killed Pinchas. Pinchas himself was the pursuer, not Zimri. Pinchas is the law of zealots striking him.
[Speaker D] So basically, isn’t he endangering everyone—everyone dies now because of what he’s doing now, everyone gets killed in the plague—so he’s endangering everyone, the whole…
[Rabbi Michael Abraham] Ah, you mean under the law of a pursuer. Okay. In any case then, yes, so what are we actually saying here? That what makes it permitted for me to kill him—and again, this is the difference between a pursuer and saving oneself at the cost of another’s life—is that he is liable to death. He is a murderer; a murderer is liable to death; a religious court would in any case execute him. The Torah makes him liable to death. So here I killed someone who is liable to death; that is certainly preferable to letting him kill the pursued person, who is innocent. That’s not the same as someone threatening me, right? When I kill an uninvolved third party, I am not killing someone who is liable to death. Therefore I am forbidden to do it. What do you mean—his blood is no less red than mine. But here his blood is less red, because he is liable to death; a religious court would execute him in any case. He is a potential murderer—he hasn’t done it yet, doesn’t matter. The law of the Torah says that I already see him now as a murderer liable to death. I sentence him to death. So therefore it is permitted to kill him, and that is not the same as a person may not save himself at the cost of another person’s life. Okay, so these are basically—there are more nuances, but these are the main directions that explain why there is a difference. Another important point: is there a difference between a Jew and a non-Jew? So in Torat HaMelekh they want to argue that there is, and they have their reasoning with them. Why? Because when one kills a non-Jew, then according to the overwhelming majority of opinions among halakhic decisors, that is not the prohibition of “You shall not murder,” but rather the prohibition of “Whoever sheds the blood of man, by man shall his blood be shed.” It is also a Torah-level prohibition, of course, but it is a different prohibition. It is not “You shall not murder,” and there is also no death penalty for it, no death penalty by a religious court.
[Speaker E] So then what is “by man shall his blood be shed”?
[Rabbi Michael Abraham] “Whoever sheds the blood of man, by man shall his blood be shed”—by Heaven?
[Speaker E] “Whoever sheds the blood of man,” yes—“by man,” by human hands his blood shall be shed.
[Rabbi Michael Abraham] I don’t know, but it isn’t—you’re right, in the language of the verse it really does imply that, but it is not a court-imposed punishment. There is no death penalty for the murder of a non-Jew. I’m saying this without bringing in Meiri and all the other discussions, where maybe one could bring that in, but I’m speaking according to the basic Talmudic law. By contrast, for a Jew there is “You shall not murder,” which is one of the three most severe transgressions, and a death penalty for one who murders, and so on. So you see that the life of a non-Jew, or the blood of a non-Jew, is less red than that of a Jew. So if you face a dilemma and they tell you, kill a non-Jew or we’ll kill you, the people from Torat HaMelekh say: it is permitted to kill the non-Jew. Why? Because there you do not have that balance, that equality in the value of blood. Only where there is equality is there no justification to kill him in order to save yourself, because his blood is no less red than yours. But where the blood is less red, then no. Then it is permitted to kill him.
[Speaker D] But why is the conclusion that the blood is less red? Maybe really it’s not murder, but who says that means the blood is less red?
[Rabbi Michael Abraham] The prohibition is already less severe. Fine, the prohibition against killing him is less severe. But the conclusion is that the blood is less red? Why? Then why is the prohibition less severe? Apparently the life is worth less. Like in Horayot, yes, with the laws of precedence—the laws of precedence in rescue there in Horayot, or in charity, or something like that. There are rules of precedence. First of all one saves a priest, after that an Israelite, a man before a woman, and all the things you’re not allowed to say. Why is that so?
[Speaker D] But in both cases it’s a person, the same blood; blood isn’t proof.
[Rabbi Michael Abraham] No, wait, wait, one second. I’m getting there from one side, and then I’ll come back to what you’re saying. So apparently there, why? Because the number of commandments each person is obligated in is different. The priest is obligated in the most commandments, the man in fewer, and the woman in fewer still. And the number of commandments determines the value—the value of life. And therefore the obligation to save one comes before the other. That is in the duty of rescue. But you are right that as far as the halakhic decisors go, when they write, almost everyone—everyone I know—says that these precedence rules in Horayot do not apply to the laws of “be killed rather than transgress.” Meaning, regarding the comparison of the value of a person, there we do not make this comparison. There too, for example, it is forbidden to kill a woman in order to save a man, or an Israelite in order to save a priest, and so on. So on the one hand there is room for comparing the value of blood, but on the other hand that comes with its own built-in contradiction, because all these things were said regarding the duty of rescue. I see two people drowning in a river—which one do I save, if I can save only one? There I determine that there are precedence rules. But to kill someone in order to save someone else—that is different. There there is no difference. There is no difference in the value of life. So therefore I think that regarding a non-Jew as well, this is a problematic argument. I’ll say more than that. This approach that says “Who says your blood is redder?”—an approach that says that with regard to a non-Jew it’s possible because his blood is less red, less red—is an approach that looks at everything through halakhic glasses. It basically says: look, here there is a prohibition of murder and here there is a prohibition of murder; here a person is going and here a person is going; therefore there is no possibility of preferring one over the other. With a non-Jew the prohibition is less severe, so therefore it is preferable that I violate the lesser prohibition of shedding human blood rather than lose my life and have the prohibition of murder committed with respect to me. But clearly that is not—and there are lots of proofs, I’m not going into all the details of the passages now—but that is not at all the principle of passive omission is preferable; it is not determined by the prohibition at all. It is a question of rights. Every person has a right over his own body. You do not get to decide whether my life is worth less or worth more. You may not kill me in order to save yourself even if my life is worth less, because the prohibition on killing me to save you is not because of the prohibition “You shall not murder.” The problem is not the prohibition “You shall not murder”; there is no murder here, because that prohibition is set aside in the face of saving a life. The prohibition “You shall not murder” is overridden. You are forbidden to kill me because even if your halakhic reasoning leads you to the conclusion that you may kill me—with all due respect to your halakhic reasoning—the only one who determines my life is me. When you come to kill me and you deliberate, you are not deliberating a halakhic question, from your perspective, of which prohibition would be less severe, right? It’s like the example I once brought, my clown of a friend Moishe Weiss—you know him, Alex? So he was one of the teachers in our yeshiva, and once we were sitting around a table and he saw some book by someone. So he says to him: look, there are two possibilities—either to take your book and violate “do not steal,” or leave the book with you and violate “do not covet.” So since in any case I’ll be violating a prohibition, at least let the book be with me. Now, he was a Torah scholar, so he knew what he said wasn’t right; it’s also not right in the precise definitions of “do not covet.” But let’s say he was right, and indeed that reasoning is halakhically correct. So what? Is it really permitted to take the book? Does that reasoning justify taking a book?
[Speaker C] And if that’s so, then is it permitted for me to save my life by taking your object? There too, your object…
[Rabbi Michael Abraham] Okay, that is one of the implications—I’ll get to that in a moment. That’s the implication. Maybe not in a moment; we’ll soon see. But I’ll get to that. There there is a practical difference. So if you make decisions and say, in my halakhic reasoning it’s either “do not covet” or “do not steal,” so in any case I’m going to commit a transgression, so at least let the object be with me. Apparently that’s halakhically sound reasoning. Now, it isn’t sound, never mind—but assuming it is, okay? Your halakhically sound reasoning is not supposed to interest me. That object is mine, and the one who determines what happens with that object is me. And if your reasoning is correct, it’s not because your reasoning is incorrect that you are forbidden to take the object, but despite the fact that it is correct—because it is your reasoning, that’s what I mean. That’s the point. The one who makes the calculations about my objects is only me. It’s not because your reasoning is wrong—this is my whole point. And all the more so, if I can determine what happens with my property, then certainly I can also determine what happens with my life. And as long as I, at least, do not agree—and this is connected a bit to the issue of organ theory that we once discussed—you cannot kill me in order to save yourself. Why? Not because of the prohibition “You shall not murder.” The prohibition is not the issue here. Rather, it is because I am a separate legal entity. And the one who makes decisions about that legal entity—about its property, about its life, about everything that concerns it, about its territory, we once spoke about this in terms of territorial considerations—the one who makes decisions about my territory is only me. And if you made decisions about something that touches my territory, even if those decisions are halakhically correct, it changes nothing. You can make your decisions in your own territory, not in mine. Period. It has nothing to do with it. It’s not that your decision is incorrect; it’s that even correct decisions you cannot make about things that are outside your sphere.
[Speaker D] But a religious court does that.
[Rabbi Michael Abraham] A religious court is something else. A religious court is something else. Because a religious court acts on behalf of the public, and here we come exactly to our point: the religious court acts as the representative of the public, and in particular of me as well—it also acts in my name, the religious court. So of course it can also harm me, because it does so in my name. There is a very—well, I see I need to stop here, so I’ll just finish with an example and continue next time. In Mishneh LaMelekh—I mentioned earlier the Talmudic statement about Zimri—if Zimri had turned around and killed Pinchas, he would not be executed for that; that’s what the Talmud says in Sanhedrin, because it is the law of a pursuer. But Pinchas did an act for which he received the covenant of the Holy One, blessed be He; it was a proper act: one who has relations with an Aramean woman, zealots may strike him. Right, a proper act—but you make your own calculations and I will defend myself, and I will kill you if I want to defend myself. They ask there: after all, he could have stopped sinning, and then Pinchas would not have killed him; he could save himself without killing the pursuer, so there is no permission to kill the pursuer—let him stop sinning. So the Klei Chemdat—I think I once mentioned it—says: fine, but he doesn’t want to stop sinning. Does he owe you something? Zimri wants to sin; that’s his business with the Holy One, blessed be He. You, Pinchas, can’t ask me to stop sinning any more than you can ask me for a shekel. You are threatening my life; I will defend myself, I will kill you. Okay? So you see that my right to defend myself stands even where you are doing an act with permission. What will happen with the blood avenger? Mishneh LaMelekh asks, and Mishneh LaMelekh wants to argue, by logic, the same thing: the blood avenger is permitted to kill the accidental murderer, but the accidental murderer is allowed to defend himself, and if he kills the blood avenger, he is not guilty of bloodshed—the blood avenger is a pursuer. Even though the blood avenger is permitted to kill, and there is a Tannaitic opinion that it is even a commandment—a dispute there between Rabbi Yosei and Rabbi Akiva whether it is a commandment or merely permission in the hands of the blood avenger. Then he continues further: what about an agent of the religious court? An agent of the religious court sentences me to death—I murdered, I desecrated the Sabbath, whatever. The religious court sentenced me to death. There were witnesses, a warning, everything is in order. The court’s agent comes to hang me, the executioner. Am I allowed to kill him? He is a pursuer. Right? He is of course acting with authorization; he is carrying out the verdict. So what? But we already saw that even if he is pursuing me with authorization, that doesn’t mean I can’t defend myself.
[Speaker C] No, but once again, he is acting on behalf of the public—that’s why I brought it up.
[Rabbi Michael Abraham] So why not here? He says no—Mishneh LaMelekh says it can’t be; here certainly not, it can’t be. What is the explanation? What is the idea? What does “it can’t be” mean? Apparently this is like the blood avenger, like Pinchas—what’s the difference? The difference is something else. The court’s agent—the obligation to kill me is an obligation imposed on the public. The religious court is only the institution that implements it on behalf of the public. But the obligation is imposed on the whole public, including me myself. I myself, as part of the public, am also obligated to kill myself as a Sabbath desecrator. So the court’s agent who comes here acts in my name as well. So I am not standing here on the other side of the barricade saying, look, you’re doing a commandment, but that’s your commandment—what does it have to do with me? You do your commandments at my expense and I’ll defend myself. But here the commandment is also…