Individual and Community – Lesson 6
This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
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Table of Contents
- The two principles: the law of the pursuer versus “a person may not save himself with another person’s life”
- An apparent contradiction in Maimonides about a ship, and the distinction between a storm and cargo as a pursuer
- Analogies in property law: damaging the property of a pursuer and dividing responsibility
- David, the stack of grain, and the passage “may one save himself with another person’s property?”
- Rashba, “do not stand idly by your neighbor’s blood,” and the question of financial obligation
- Binyan Tziyon and extending “be killed rather than transgress” to harming another person
- Rabbi Shimon Shkop, “the theory of legal systems,” territory and rights as the basis of the prohibition of theft
- “Be killed rather than transgress” in murder as a consequence of territory, not of the severity of “do not murder”
- A practical difference regarding a non-Jew: prohibition, territory, and Torat HaMelekh
- Targeted killing and a baby as a human shield: pursuer versus third party
- A critique of “laws of war” and a proposal for a structural framework
- Collective pursuer: war between nations as a shift from self-preservation to pursuer law
- Symmetry and limits: proportionality, threat, and the possibility of catastrophe
- Right and left: the metaphysical argument over collective versus individual
Summary
General Overview
The text places the question of harming innocents within a tension between two halakhic principles that seem contradictory: the law of the pursuer, which permits and even requires harming a pursuer in order to save the pursued, versus the rule of be killed rather than transgress in murder, that “a person may not save himself with another person’s life” and “what makes you think your blood is redder?” It sharpens the point that the basic distinction depends on whether the person being harmed is the very source of the threat or an uninvolved “third party,” and it develops this through an apparent contradiction in Maimonides regarding throwing cargo off a ship, through the dispute between Rashi and Tosafot in Bava Kamma over “may one save himself with another person’s property?”, and through Rashba, who grounds a certain permission in “do not stand idly by your neighbor’s blood.” It then proposes a conceptual framework for discussing targeted killings and war that does not rely on “laws of war” as a rabbit pulled from a hat, but rather on the idea of a “collective pursuer,” and argues that the public dispute over harming uninvolved people looks moral on the surface but is rooted in a metaphysical question: whether the reality before us is a collective or an aggregate of individuals.
The two principles: the law of the pursuer versus “a person may not save himself with another person’s life”
The text argues that dilemmas of harming innocents mostly reduce to a conflict between the law of the pursuer and the rule of be killed rather than transgress regarding murder. It explains that in the case of a pursuer, it is permitted and even commanded to harm the pursuer in order to save the pursued, whether by the pursued person himself or by someone else. On the other hand, it is forbidden for a person to kill someone else in order to save himself from a threat, because “a person may not save himself with another person’s life” and “what makes you think your blood is redder than his?”
An apparent contradiction in Maimonides about a ship, and the distinction between a storm and cargo as a pursuer
The text presents an apparent contradiction in Maimonides between the laws of personal injury and damages and the laws of theft regarding a ship at sea threatened with sinking. According to one formulation in Maimonides, when it is necessary to throw cargo into the sea in order to save the ship, one need not pay the owner of the cargo, because the cargo is considered “like a pursuer,” and just as it is permitted to kill a pursuer, so too it is permitted to damage the property of a pursuer. The text brings the Raavad’s objection from a Talmudic passage that implies the financial burden should be shared, and explains that the Maggid Mishneh and Kesef Mishneh reconcile the sources by saying these are two different situations: when the storm threatens and the cargo is thrown overboard in order to survive the storm, the burden is shared; but when the cargo itself is too heavy and threatens to sink the ship, the cargo is the pursuer, and therefore the burden is not shared and there is no obligation to pay. The text formulates the distinction as a general rule: it is permitted to harm the source of the threat itself, but when the harm is directed at an uninvolved third party that merely serves as a means of escape from some other threat, that party does not have the status of a pursuer.
Analogies in property law: damaging the property of a pursuer and dividing responsibility
The text says that if a person’s property threatens other property, for example if someone’s ox is pursuing another ox in order to kill it, it is permitted to damage the property of the pursuer. It raises the possibility of discussing a case where the pursuer’s property is very valuable and the pursued property is worth little, and suggests that there may be questions about compensation or paying the difference, but presents that as an issue open for discussion. The main axis, however, remains the distinction between a pursuer and a third party whose harm is more restricted.
David, the stack of grain, and the passage “may one save himself with another person’s property?”
The text cites the Talmud in Bava Kamma, in the chapter HaKones, about David who longed for water from the well of Bethlehem, and explains that this really refers to a halakhic question sent to the Sanhedrin. The question was whether one may damage another person’s stack of grain in order to save himself from Philistines hiding behind it, and the Sanhedrin answered “forbidden,” in the formulation “may one save himself with another person’s property?” They added, however, that David was a king, and “a king may break through a fence to make a road for himself.” The text states that according to the plain sense of Rashi, this is meant literally, to the point of a concept like “be killed rather than transgress” even with respect to theft, whereas Tosafot argue that one may save himself with another person’s property, but must pay, because be killed rather than transgress applies only to the three cardinal sins. The text adds that the straightforward reading of the Talmud is like Rashi, but that “all the medieval authorities say like Tosafot,” except for Rashi. It cites a remark attributed to Rabbi Lichtenstein that this Rashi is “the mistake of a student,” while the text itself emphasizes that Rashi wrote this explicitly as the plain meaning.
Rashba, “do not stand idly by your neighbor’s blood,” and the question of financial obligation
The text cites a responsum of Rashba that explains the permission to damage another person’s property in order to save oneself on the grounds that the owner of that property is “obligated to participate in his rescue” by virtue of “do not stand idly by your neighbor’s blood.” The text wonders how a duty that belongs to ritual-and-ethical law rather than civil law could create a financial obligation that justifies taking property, and emphasizes that in any case the rescued person must reimburse and pay for the property used to save him. It suggests that Rashba’s novelty is limited to the question of the prohibition involved in the taking itself, because the other person’s duty to save creates a framework in which taking the property is not viewed as theft in the prohibitive sense, even though the obligation to pay remains. The text argues that were it not for this permission grounded in “do not stand idly by your neighbor’s blood,” Rashba himself would imply, like Rashi, that “it would have been forbidden for me to steal the property in order to save myself,” so that Rashba too, on the conceptual level, joins the view that the prohibition of theft is not set aside in life-threatening danger when there is no additional permission.
Binyan Tziyon and extending “be killed rather than transgress” to harming another person
The text cites Binyan Tziyon by the Arukh LaNer as a series of responsa dealing with the principled claim that harming another person falls under be killed rather than transgress, including theft and humiliation. It notes that Tosafot in Sotah understands from the saying “it is better for a person to throw himself into a fiery furnace than to publicly humiliate his fellow” that this too is a case of be killed rather than transgress, and that attempts to explain this as an “accessory of murder” through a physiological image — “the blood leaves his face” — are “an explanation that is really an insult to the intelligence.” The text suggests that the Arukh LaNer’s move is to explain that the problem is not the formal severity of the prohibition, but the very act of harming another person as an intrusion into a domain that is not yours.
Rabbi Shimon Shkop, “the theory of legal systems,” territory and rights as the basis of the prohibition of theft
The text develops an approach attributed to Rabbi Shimon Shkop in Shaarei Yosher, according to which the prohibition of theft is unusual because it rests on a prior framework of property law, which he calls “the theory of legal systems.” The text says that there are almost no biblical verses about the laws of property acquisition, and that a society organizes for itself how ownership is created and how it is transferred; only once such a framework exists can theft be defined. It argues that this is not merely a technical definition of ownership, but also a prior normative prohibition, and cites support from the discussion of stealing from a non-Jew: even where there may be no Torah-level “do not steal,” there still remains a normative problem because a non-Jew can own property. The text formulates this as a principle of “territory”: halakhic considerations of permission and prohibition operate first of all within a person’s own territory, and even if the prohibition of theft is set aside by life-threatening danger, that still does not give someone license to make decisions about property that is not his without a special permission.
“Be killed rather than transgress” in murder as a consequence of territory, not of the severity of “do not murder”
The text argues that the prohibition implied by “a person may not save himself with another person’s life” does not fundamentally stem from the severity of “do not murder,” but from the fact that another person’s life is “his territory,” over which no one else has authority to decide. In the case of a pursuer there is a permission, because the pursuer is the source of the threat and therefore “has forfeited his life” for the sake of saving the pursued; but in the case of a third party there is no justification for taking his life. The text explains that “do not murder” may be the “result” that appears after the system first determines that there is no justification for taking that life, just as “do not steal” only arises after it has first been determined that one has no permission to invade another’s territory.
A practical difference regarding a non-Jew: prohibition, territory, and Torat HaMelekh
The text raises the point that if one grounds the prohibition on killing another person in the severity of “do not murder,” then one might, in principle, distinguish between a Jew and a non-Jew. It cites a claim attributed to Torat HaMelekh that “do not murder” does not apply to a non-Jew in quite the same way, and therefore might be overridden in life-threatening circumstances. The text argues that if the root is territory rather than the formal severity of the prohibition, then there is no room for such a distinction, because a non-Jew has ownership over his property and a right over his own life in precisely that territorial sense. It notes that in the case of David, the Talmud discusses whether the grain stacks belonged to Israelites or to Philistines, implying that the prohibition on damaging the stack exists even when the stacks belong to Philistines, were it not for the special law of a king. It cites Rabbi Shaul Yisraeli on the Qibya operation, according to whom even with respect to non-Jews it would be forbidden to harm their property and lives in order to save oneself, were it not for “laws of war,” and adds the possibility that with a non-Jew’s property this may actually be more severe according to Rashba, because “do not stand idly by your neighbor’s blood” does not obligate the non-Jew toward the Jew.
Targeted killing and a baby as a human shield: pursuer versus third party
The text applies these principles to the issue of targeted killing, where harming a terrorist may also kill uninvolved passengers, and asks whether this is judged under the law of the pursuer or under the rule that one may not save oneself with another person’s life. It sharpens the point with an example of a terrorist holding a baby in one hand and a gun in the other, and asks whether it is permitted to shoot the terrorist when the baby will be killed as well; it suggests that, at least on the face of it, there is no permission to harm the baby itself. The text says that Rabbi Yisraeli rules in practice that in such a case it is forbidden, and adds that he permits it through “laws of war,” but the text criticizes that solution as a baseless claim presented like a rabbit being pulled out whenever needed.
A critique of “laws of war” and a proposal for a structural framework
The text objects to an approach that ends the discussion with a general statement of “laws of war” without specifying what is permitted, what is forbidden, and from what source. It mentions an article by Rabbi Sheviv that tries to derive rules from the practice of the world and the agreement of nations, but expresses reservation about granting permission to kill on the basis of “common sense” without an underlying structural framework. The text emphasizes that even when meta-halakhic considerations ultimately flow into common sense, they still need to operate within a “conceptual framework” and not as shifting gut feeling.
Collective pursuer: war between nations as a shift from self-preservation to pursuer law
The text proposes that in war between two nations, the primary issue is not private individuals but a clash between “two collectives,” and the army is “an arm of the collective.” It argues that once the threat is defined as a “collective pursuer,” even the uninvolved members inside that collective cease to be a “third party” and become part of the pursuer, and therefore it becomes permitted to harm them when that is the only way to remove the threat. The text places one central limitation on this, drawn from the ordinary laws of the pursuer: even with a collective pursuer, “if he can be saved by injuring one of his limbs,” then it is forbidden to kill, and therefore one is obligated to use the minimal force necessary to remove the threat. The text adds a practical implication that strengthens the model: a tourist or journalist who is not part of the collective is not included in the collective pursuer, and therefore harming him reverts to the problem of “saving oneself with another person’s life.”
Symmetry and limits: proportionality, threat, and the possibility of catastrophe
The text admits that the model does not turn decisions into “mathematics,” and that judgments are still required about what counts as a threat, how certain it is, and what counts as neutralizing it. It says that the model makes it possible to understand that the other side too can claim pursuer status from its own perspective if it sees itself as threatened, and that the practical decision depends on the question of “who is right,” not on whether the framework itself exists. It also points out that proportionality is determined not only by the threat but also by the extent of harm done to uninvolved people, and criticizes a discourse in which everything is reduced to “this is proportional and this is not proportional” without orderly reasoning, including the claim that even at the practical level there is no structured framework.
Right and left: the metaphysical argument over collective versus individual
The text argues that the connection between positions on harming innocents and the right-left divide does not stem from a moral disagreement over basic principles, because principles such as the law of the pursuer, the rule that one may not save himself with another person’s life, and the requirement to save by injuring only a limb when possible are broadly agreed upon. It states that the root of the argument is a “metaphysical dispute” over whether the entity standing before you is a real collective or merely an aggregate of individuals. It formulates this by saying that the right tends to see “the Palestinian” as a pursuing collective, and the armed person as a limb of that collective, whereas the left tends to see individuals — wicked and righteous alike — and therefore opposes turning uninvolved people into part of the pursuer. The text adds that this metaphysical disagreement produces an outcome that looks like moral injustice to the other side, but the difference stems from a model of reality rather than a denial of the same moral principles. It concludes by saying that the disagreement does not depend on whether there is “a Palestinian people” in the historical-ethnic sense, but on the existence of “a group that has organized itself in order to pursue,” and that within this framework each person wears both an individual hat and the hat of being a limb in a collective, and the decision has to take both into account.
Full Transcript
[Rabbi Michael Abraham] We were in the middle
[Speaker B] of the discussion.
[Rabbi Michael Abraham] About harming innocents as part of the discussion of collective versus individual. I still haven’t gotten to the connection with the collective-versus-individual part; we’ll get there in a moment, God willing. I just want to finish up from last time so we can continue. I said that dilemmas of this kind mostly boil down to a conflict between two principles that are seemingly contradictory. One principle is the law of the pursuer: if someone is pursuing someone else in order to kill him, then not only is it permitted, it’s even a commandment to harm the pursuer in order to save the pursued person — whether by the pursued person himself or by someone else. That’s one side. On the other side, there’s the rule of be killed rather than transgress in the case of murder: a person may not save himself with another person’s life. If someone threatens me that I must kill somebody else, then I’m forbidden to kill that other person in order to save myself — what makes you think your blood is redder? Meaning, my blood isn’t any redder than his blood. So we spoke a bit about why there isn’t really a contradiction between those two things, but in any case these are the two basic principles standing opposite one another. Maybe I’ll sharpen the point a bit more באמצעות an apparent contradiction in Maimonides. At the end of the laws of personal injury and damages, Maimonides writes that if there is a ship at sea and the waves are threatening to sink it — there’s one ruling of Maimonides in the laws of personal injury and damages, and one in the laws of theft, I don’t remember anymore which one is which, but it doesn’t matter. One of them says that if the waves threaten to sink it and you need to throw cargo into the sea so the ship won’t sink, then you throw the cargo into the sea and you don’t need to pay the owner of the cargo. Because that cargo is like a pursuer after them to drown them, and just as it is permitted to kill a pursuer, certainly it is also permitted to damage the property of a pursuer. That’s Maimonides’ claim. Now the Raavad comments there and objects from a Talmudic passage, where you see that the financial burden has to be divided — the financial burden has to be shared, according to cargo or according to — doesn’t matter, according to lives; there are some disputes there, but somehow the costs have to be shared. What? Does that mean there that you have to pay? What?
[Speaker C] Does it mean there that you have to pay? You have to bear the costs — you have to throw from each person according to what he has.
[Rabbi Michael Abraham] According to what he has, not that you need
[Speaker C] to pay someone else, but rather to divide the throwing.
[Speaker D] No, but suppose only one person has it.
[Rabbi Michael Abraham] Then you have to pay. There’s a contradiction. Do you have to pay?
[Speaker C] Meaning, you have to pay even if all the cargo belongs to just one person?
[Rabbi Michael Abraham] Let’s say, yes. There’s a contradiction.
[Speaker C] Meaning, that’s why they divide it according to what you said, the possibility that there is—
[Rabbi Michael Abraham] They divide it according to cargo. If they divide it according to cargo, then it’s not… fine, what I mean is they divide it in general, whether according to lives or according to cargo. In Maimonides it says they don’t divide it. We won’t go into the details right now; for that I’d have to go into Maimonides and see the precise wording. There’s a clear contradiction there; there’s no arguing about it. That’s what the Raavad points out. So the Maggid Mishneh and the Kesef Mishneh write there, in a similar style, and they basically say that when you read Maimonides’ language more carefully, you see that in these two rulings he’s talking about different situations. What?
[Speaker C] Before you said that in the Talmud it contradicts the Talmudic passage — what do you mean by two rulings?
[Rabbi Michael Abraham] Two rulings in Maimonides — the laws of theft and the laws of personal injury and damages.
[Speaker C] So injury and—
[Rabbi Michael Abraham] and damages is challenged from the Talmud in Bava Kamma, but the Raavad himself already noticed that Maimonides, in the laws of theft, brings that same passage from Bava Kamma. So it’s really a contradiction within Maimonides. And then the Maggid Mishneh and the Kesef Mishneh and the other commentators all say something along the same lines, because really, when you read Maimonides with more precision, you see that he’s speaking about different situations. There’s one situation where there are waves threatening — a storm is threatening to sink the ship — and we throw off the cargo in order to save ourselves. In that case, the burden is shared. That’s what Maimonides writes — that you share it with the owner of the cargo. Then there’s another situation where the cargo itself threatens to sink the ship — not the storm. Yes, not the storm. The cargo itself is too heavy; the ship can’t handle it. In that case, they don’t divide it. What’s the difference? When the cargo threatens the ship, then the cargo is the pursuer. So once it’s a pursuer, just as a person who is pursuing someone has, in effect, forfeited his life — his blood is permitted, yes? his blood is permitted — then certainly property is entirely permitted, and you can throw it overboard because it is the pursuer; its fate is permitted, so to speak, subordinated to solving the problem it created, just as we discussed in the ordinary law of the pursuer. But if the storm is pursuing me, and lightening the load by throwing off cargo is just to save myself from the storm — then what did the cargo do? The cargo isn’t pursuing me.
[Speaker C] What do you mean? If I throw off the cargo, if throwing off the cargo makes it easier, that means the storm is only pursuing me because I have cargo.
[Rabbi Michael Abraham] No, the storm is pursuing the ship; I’m just throwing off the cargo in order to save myself from the storm.
[Speaker C] So what do you mean “in order to save myself”? But without the cargo it wouldn’t be in danger.
[Rabbi Michael Abraham] So what? Somebody points a gun at me and says: “Kill him, and if not, I’ll kill you.” Without him, I wouldn’t be in mortal danger — so is he the pursuer? No, he isn’t the pursuer. Why not? Because the one creating the problem is the other guy. Never mind that the storm isn’t an intelligent agent; I’m speaking on the conceptual level. So the storm is threatening me, and I can save myself by throwing off the cargo — but that doesn’t make the cargo a pursuer after me. In that case the cargo isn’t a pursuer; it’s a third party. Now since this isn’t a human life but property, then of course the property is permitted to be used — but that property is not a pursuer. Let’s say, by analogy in cases of life and death: if someone threatens me, then of course I may kill him and there’s no problem, because he is a pursuer. But if someone says to me, “Kill him, and if not I’ll kill you,” then I’m forbidden to kill that person, because that person isn’t threatening me. Killing him is only a way of escaping a threat from somebody else. Meaning, he is a completely uninvolved factor. In that case I’m forbidden to kill him — or, in property terms, if I throw his property away I have to pay. That’s the principle.
[Speaker F] Is there an analogy to this not in a case of death, but in a case of financial loss? Meaning, if his cargo is now pursuing me in the sense that I’ll suffer a monetary loss — not at the level of dying, but at the level of losing money — then if I get rid of his cargo, it’s no longer pursuing me? Would that be the same thing?
[Rabbi Michael Abraham] Are you asking me whether there’s a source? I don’t remember a source right now that deals
[Speaker F] with this, but the principle of comparing between—
[Rabbi Michael Abraham] Sure, it would be the same thing. It would be the same thing. Sacrificing property for the sake of property.
[Speaker F] Right. So why sacrifice that property for property? Because his property is pursuing me.
[Rabbi Michael Abraham] No — if the property is pursuing me, then of course I may damage that property. If someone’s ox is pursuing my ox in order to kill it, am I allowed to kill the pursuing ox? Yes, certainly. Even though this is all property, the ox will die. Again, you’re asking me—
[Speaker F] It depends whether there was negligence or intent and all those things, doesn’t it?
[Rabbi Michael Abraham] What suddenly? No. His ox is about to kill my ox.
[Speaker F] I don’t know, maybe it wandered into some place.
[Rabbi Michael Abraham] Fine, the ox… I’m not talking… it’s innocent, but it’s also not at fault, like a minor who is a pursuer. He’s not at fault. I’m not talking right now about whether I was negligent and thereby got myself into the problem — that’s something else. I’m talking about a case where innocently I’m going about my business, I wasn’t negligent, and his property comes and threatens my property. There’s no question that I’m allowed to damage his property. There might be room to discuss what happens if, say, his property is worth a great deal and mine is worth little — maybe I would need to let it live, but he’d have to pay me, say, or I’d have to pay him the difference, I don’t know, something along those lines. So this really sharpens the distinction between the two situations — between the situation of the law of the pursuer and the situation of saving oneself with another person’s life. The difference is basically the question whether the person I need to kill in order to save myself is the one who created the problem, or whether he’s an uninvolved third party. Once he is an uninvolved factor, I’m forbidden to harm him — and I’m now talking about life, not property — I’m forbidden to harm him in order to save myself, because he isn’t threatening me. I think we talked about Rashi in Bava Kamma regarding saving oneself with another person’s property?
[Speaker G] Not in this context, but… with David, who was—
[Rabbi Michael Abraham] Not in this context. So I’ll mention that too. I’ll mention that too because it’s important for us for other aspects as well. The Talmud in Bava Kamma, in the chapter HaKones, brings there: David longed for water from the well of Bethlehem, and sent the three mighty men to bring him water. The Talmud expounds this to mean that David actually had a halakhic question and sent them to the Sanhedrin. “To bring him water” means — water is none other than Torah — to ask a halakhic question. And the question was: what happens if the Philistines, against whom he was fighting, were hiding behind a stack of grain, and the question was whether he was allowed to damage that stack of grain, to burn that stack in order to save himself from the Philistines. We’re talking, of course, about a stack that is not involved; yes, if the stack itself were threatening him there’d be no question. We’re talking about a stack that is not involved. So the Sanhedrin sends back: forbidden. “May one save himself with another person’s property?” — that’s how the question is formulated. So the Sanhedrin answers: forbidden, but you are a king. And “a king may break through a fence to make a road for himself.” As king, you have a special privilege; a king can expropriate property. A king can make decisions even about other people’s property. But were you not a king, a private individual would be forbidden to do such a thing. Now Rashi’s view there, at the bottom of the page, literally in three words, is that this means exactly what it says. Meaning: there is a category of be killed rather than transgress with respect to theft. Meaning, if, say, someone threatens me with a gun so that I should rob someone, I must die rather than rob. Now it’s obvious that if the property is threatening me, then of course I may damage it — that’s what we spoke about before. But if the property is an independent factor, then it’s forbidden. Tosafot say that I may do it, but I have to pay. Meaning, when it says that a person may not save himself with another person’s property, Tosafot says it cannot mean be killed rather than transgress with respect to theft. There are only three cardinal sins for which the rule of be killed rather than transgress applies. Therefore, Tosafot says, the meaning of the Talmud is that when he takes it — when he burns the stack — he’ll have to pay. Meaning, if the stack itself is threatening him, then he is exempt from payment. If the stack is only a means of saving himself, then he has to pay. The plain sense of the Talmud is like Rashi. But all the medieval authorities say like Tosafot, meaning everyone except Rashi. Once I heard from the Rabbi — I think it was Rabbi Lichtenstein — that this Rashi is “a mistaken student,” meaning, it can’t be, which is always the standard thing people say when something just seems completely — unimaginable, meaning, you just can’t say such a thing. But what do you mean, Rashi, the plain meaning? That is the plain meaning of the Talmud, and Rashi writes it explicitly.
[Speaker F] Straight according to the straightforward sense?
[Rabbi Michael Abraham] Be killed rather than transgress with respect to theft? Aren’t there only three? Are there more than three prohibitions for which one must be killed rather than transgress? There are three.
[Speaker F] Yes, but if you think of cases where, say, a person is sick with an illness and needs an expensive operation, and he’ll go steal from some billionaire? In a moment we’ll see, in a moment we’ll see.
[Rabbi Michael Abraham] I’ll note that.
[Speaker F] What Rashi is saying — he would steal from—?
[Rabbi Michael Abraham] No, in a moment we’ll see.
[Speaker F] Fine, it just doesn’t sound so reasonable that it would be permitted.
[Rabbi Michael Abraham] In any case, that’s what it says there in the Talmud. Tosafot pays a heavy price, because it basically means, say, the side — the Talmud itself is uncertain whether a person may save himself with another person’s property or not. Tosafot explains the side that says he may not, because that’s the conclusion. What does “may not” mean? It means he may, but he has to pay. And what does “may” mean? That he can take it even without paying? We’re talking about an uninvolved factor. Completely unreasonable.
[Speaker C] Again, how? The assumption is that if the stack hides the Philistines, then it isn’t really uninvolved, because it prevents me from—
[Rabbi Michael Abraham] Why is it involved? What do you mean not uninvolved? The stack — no, the owner of the stack. The stack itself isn’t the point. There are Philistines here threatening me, and in order to save myself I need to damage the stack.
[Speaker C] But it’s not damaging the stack in order to damage the owner’s property by damaging the stack; rather, the owner’s property is interfering with my ability to defend myself.
[Rabbi Michael Abraham] No, it’s not interfering with me. I burn it in order to harm the Philistines. Not that it’s interfering with me.
[Speaker C] Why do you need to burn it? Because they’re hiding there, right? If the stack weren’t there, I could kill them.
[Rabbi Michael Abraham] Obviously, but it’s a means of harming them. It’s not that it’s interfering with something and therefore I move it; it’s a means of harming them. I’m simply burning the stack. So according to Tosafot it comes out that there is a side in the Talmud — not the final halakhic ruling, but there is a side in the Talmud — according to which you wouldn’t even need to pay for it. That’s another interpretive price that isn’t simple for Tosafot’s approach. But that is the view of most of the medieval authorities, apart from Rashi’s view. But in a responsum of Rashba, he writes there — he explains why a person is allowed to damage someone else’s property in order to save himself: because the owner of the property is obligated to participate in his rescue — “do not stand idly by your neighbor’s blood.” If you see a person in danger, then you are obligated to spend from your property in order to save him from danger. So you certainly can’t complain when I damage your property — you should have given it to me on your own initiative, and therefore I’m also allowed to take it. That is Rashba’s explanation. Now that is a very interesting explanation.
[Speaker C] Is that an explanation of the permission, or an explanation of the permissive side that said you wouldn’t have to pay?
[Rabbi Michael Abraham] It’s an explanation of why I’m allowed to damage the other person’s property. Okay? But of course I have to pay. But why am I allowed to? Even stealing with the intention of paying back, or damaging with the intention of paying, is forbidden. But why? In any case, he should have given it to me. But then the question really arises: first of all, the question is that he does not owe me this money. This is a commandment in ritual-and-ethical law — “do not stand idly by your neighbor’s blood” — it is not a legal, civil obligation; he is not financially obligated to me with this property. Now if somebody doesn’t want to save me, that’s his account with the Holy One, blessed be He; I cannot sue someone to save me. Yes, by the way, this is related to rights discourse. I think we talked about this one of the previous times — the fact that today everyone has rights: the right that the state should support him, the needy and the elderly and the poor and the young and this one and that one — everyone has rights, the state has to support him, he has rights. A warped conception. Meaning, the more reasonable conception is that the state has obligations, not that you have rights. We want to behave properly, so that there won’t be a person here living in an unworthy way, but you don’t have rights. They’re not your rights; you can’t sue me that I should do this. I, out of moral obligation, need to decide to do it. Never mind. For our purposes here too, Rashba argues that your duty to save me, the duty of “do not stand idly by your neighbor’s blood,” justifies my taking your property. That’s a very strange thing. Because that duty belongs to ritual-and-ethical law, not to civil law. But even after this novelty, what does Rashba write? One way or another, what is written there — maybe before I… what really stands behind this? It seems to me that what stands behind it — maybe this really is what Arik remarked earlier. Because after all, we’re talking here about taking and paying back. The whole question is only why I may take it. It’s obvious that afterward I have to pay. So it really comes out that the whole dimension of taking is not really a dimension of theft in the sense of depriving you of money, but only the prohibition of using your property. That prohibition isn’t there, because after all you yourself already have a prohibitive obligation to contribute the property in order to save me.
[Speaker D] By force of the case in the area of prohibitions.
[Rabbi Michael Abraham] Exactly. And in any case, even when you spent money on your own initiative to save me, I have to reimburse you for the money you spent to save me. If you contributed money to save me, I have to pay you back for that money, okay? Because in the end, why should you suffer? If I was saved, then I should pay for it. So if I take the money too, I have to pay. So the whole point isn’t whether I’m allowed to take the property, but only whether I violated the prohibition. I did not violate a prohibition, because in any case you already have a prohibitive duty to give me the property. So maybe that’s the explanation. But for our purposes, bottom line, what Rashba is really saying is that were it not the case that you were obligated toward me — if you were not obligated, if there were no Torah law of “do not stand idly by your neighbor’s blood” — then it would be forbidden for me to take it even with the intention of paying, and I would have to die. So basically Rashba also goes with Rashi. On the conceptual level, Rashba too is in Rashi’s camp. Rashba just says that because this obligation exists — he takes this ritual-and-ethical obligation as something that permits what would otherwise be prohibited as theft — and that Rashi doesn’t accept. But on the conceptual level, if there really were a prohibition of theft here, and there were no special permission, then Rashba also joins Rashi in saying that it would be forbidden for me to steal the money in order to save myself. Otherwise why do you need to get to the point that there is no prohibition of theft because he is obligated? There is a prohibition of theft, and it should be set aside by life-threatening danger. Rather, Rashba too shares Rashi’s basic view that the prohibition of theft is not overridden by life-threatening danger. At least even the prohibition of theft with the intention of paying back — notice, that’s a tremendous novelty. Even the prohibition of theft with the intention of paying back is not overridden by life-threatening danger. Okay? Only here, there is no prohibition of theft because of “do not stand idly by your neighbor’s blood.” And there are other medieval authorities like that. In Tosafot it seems more radical, but there are other medieval authorities who go like Rashba, and so I don’t think Rashi’s view is all that unusual. On the conceptual level there are other medieval authorities in his party as well. How are we to understand such a thing? Tosafot asks, quite rightly: we don’t find be killed rather than transgress except with the three cardinal sins. Why didn’t they say this too? Here — and we really did speak about this — there is a series of responsa by the Arukh LaNer, called Binyan Tziyon. The Arukh LaNer wrote novellae on the Talmud; Binyan Tziyon is his responsa. There is a series there of some six or seven responsa on this subject, where among other things he deals with exactly this issue, and his basic conception is that harming another person is be killed rather than transgress. Any harm to another person, not only theft. Harming another person is be killed rather than transgress. Humiliating another person is be killed rather than transgress. Now Tosafot says this — Tosafot in Sotah, I think, says this. It says there in the Talmud, “It is preferable for a person to throw himself into a fiery furnace rather than humiliate his fellow in public.” So Tosafot says that it sounds as if this is be killed rather than transgress, yes? They bring several examples for this.
[Speaker I] Tamar, and then from the three? Yes.
[Rabbi Michael Abraham] So Tosafot asks: but how can that be? There are only three cardinal sins. So he says this is an accessory of murder. And there are these dubious explanations that when a person is humiliated the blood leaves his face and so on, and draining the blood from the body is like murder — an explanation that is really insulting to the intelligence. Forgive me for saying so about Tosafot — Tosafot writes it — but it just can’t be said. It simply cannot be said except as one of those astonishing midrashic statements; this Tosafot is incredible. But Binyan Tziyon offers another explanation. He basically wants to argue, because of this same principle that we also see here in Rashi in Bava Kamma, the same principle. Basically — I’ll translate it into my own language, because I think that makes it sharper, clearer; I think this is what he means — he basically wants to say the following: the prohibition of theft is indeed overridden by life-threatening danger. Obviously. All prohibitions except the three cardinal sins are overridden by life-threatening danger. But what forbids you to take another person’s property or damage another person’s property is not the prohibition of theft. The opposite: the prohibition of theft exists because it is forbidden for you to harm him. Let’s say it this way. Unlike pork — why is it forbidden for me to eat pork? Because the Torah forbade eating pork. In theft, the logic is the reverse. Why did the Torah forbid theft? Because it is forbidden to take someone else’s property, because it belongs to someone else. The prohibition is derived from a prior state of affairs. In ordinary Torah prohibitions, the state of affairs is a product of the prohibition. After the Torah determined that pork is forbidden, it is now forbidden for me to eat it by force of that prohibition. In theft, the Torah prohibits because there is a prior situation in which this is already not allowed. There is a reason why the Torah forbids it. Meaning, it was really forbidden even before the Torah prohibition. And this is the famous Rabbi Shimon Shkop, who says in several places, throughout Shaarei Yosher, that the prohibition of theft is a unique prohibition, and its basis is really what he calls the theory of legal systems — there is some meta-halakhic infrastructure that precedes the commandments of the Torah and arranges the laws of property, what belongs to whom.
[Speaker H] The laws of property — why isn’t that true of all interpersonal prohibitions?
[Rabbi Michael Abraham] In a moment we’ll see. In a moment we’ll see. For now let’s talk about theft. Binyan Tziyon here extends it further. Right now I’m illustrating it with theft. So Rabbi Shimon Shkop basically wants to argue that the prohibition of stealing is based on the fact that the money belongs to the other person. What determines whether money belongs to me or to the other person? That is arranged by the laws of property acquisition. Now the laws of property acquisition are not a product of commandment. There are hardly any verses that deal with the laws of property acquisition. The laws of property acquisition are what he calls the theory of legal systems — it is a social arrangement. We determine — every society arranges for itself — how ownership is established, how people become owners of things, how ownership is defined, what you own, what you don’t own, and how ownership is transferred, all the laws of property acquisition. After the laws of ownership are arranged, now it is possible to define the prohibition of theft. When you take something that is owned by someone else and not by you, you are a thief. Okay, so in order to define the prohibition of theft, there has to be a prior framework of property law. And therefore Rabbi Shimon Shkop asks: where does that framework come from? We have to say that when the Torah commands “do not steal,” it already presupposes the existence of that framework. That framework already exists beforehand. Now usually people understand Rabbi Shimon Shkop to mean that the Torah only defines what belongs to whom, but that the prohibition on taking it is a Torah prohibition.
[Speaker C] That the legal framework is only defining.
[Rabbi Michael Abraham] Yes, meaning the legal framework defines who owns what, but were it not for the commandment of “do not steal,” it would be permitted for me to take property that is yours. It only defines that it is yours, for purposes of — the definition, I have no idea. But that’s how most of the people I know understood him; I had bitter arguments with several people over this point. There are clear proofs that this is not correct, apart from the conceptual argument. There are clear proofs that it’s not correct. Rabbi Shimon Shkop means to say that there is also a prohibition on the legal level. A prohibition on taking another person’s property, even without “do not steal.”
[Speaker C] For example, is that prohibition a divine prohibition?
[Rabbi Michael Abraham] Yes, a meta-halakhic prohibition. The Holy One, blessed be He, will come to you with claims: why did you do this? A moral prohibition? A moral prohibition or a meta-halakhic one, whatever you want to call it, yes. Legal, it’s all legal, it doesn’t matter. For example, gentiles: even according to the view that the prohibition of stealing from a gentile is not Torah-level, that “you shall not steal” does not apply to a gentile, Rabbi Shimon Shkop says that this prohibition still exists vis-à-vis a gentile, because property law certainly recognizes that a gentile can own things, right? Therefore property law certainly applies among gentiles too. And once he owns something, taking it from him is a legal prohibition of theft. Even if the halakhic prohibition of “you shall not steal” does not exist there. Okay, that’s one of the proofs that Rabbi Shimon Shkop is clearly speaking on the normative plane too, not only about definitions; there are more proofs, but never mind. He says simply—Rabbi Shimon Shkop asks right at the beginning: perhaps you’ll say, what is the obligation to obey such a command if the Torah never commanded it at all? And to that he answers: because reason obligates one to obey the entire Torah; the same mouth that forbade is the mouth that permitted. Meaning, if reason obligates this too, then this too must be obeyed, yes. That’s his answer, which I mentioned once. But I’m saying: his question is interesting. If this is really only a definition within property law, then what is there for me to obey? I don’t need to obey anything. I obey only “you shall not steal.” Property law only defines where “you shall not steal” applies and where it doesn’t. So what is the question, why do I have to obey something the Torah did not command? There is no dimension of obedience here. We are forced to conclude that he means to say that there certainly is also a prohibition against taking money that isn’t mine; it’s not merely a definition, not merely a pure property-law definition. What is the basis of this? The basis of it—and I once spoke about halakhic territory, in this context I spoke about it and said that there is a meta-halakhic conception—now I’m not speaking in exactly the same sense as Rabbi Shimon Shkop, but more generally: from the standpoint of Jewish law, the only one who determines what happens with things that concern me is me. And therefore even if you have no prohibition against taking, say, something of mine, or damaging something of mine, you still can’t do it. You can’t do it. Not because it is halakhically forbidden for you—even if you have an excellent halakhic justification—but apply your justifications to your own property. As for my property, the one who makes decisions is me. This is not a definition; you are not refraining from taking it because of the prohibition of “you shall not steal.” You don’t take it because you cannot extend your hand into territory that is mine. What is your hand doing here? Now, I’m not claiming that you are a criminal, that there is a prohibition of “you shall not steal”—that’s not the point. On the contrary: because the territory is mine, the Torah wants to reinforce that, so it also places the prohibition of “you shall not steal” on it. But now you are in a life-threatening situation—I’m returning to our discussion. You are in danger to life. Danger to life overrides “you shall not steal.” So you have a justification. “You shall not steal” is overridden. Very nice, you have a justification—but your justifications don’t interest me; this money is mine. Now true, I have to save you—“do not stand idly by your neighbor’s blood”—and that’s my account with the Holy One, blessed be He. I want to be wicked. I don’t want to save you. Fine? That’s it. Decisions about my money are made only by me.
[Speaker F] But that’s not in the halakhic sense, that’s in the normative sense.
[Rabbi Michael Abraham] But Jewish law demands it.
[Speaker F] What does “Jewish law” mean? Halakhically I’m fine.
[Rabbi Michael Abraham] The Holy One, blessed be He, expects this of you.
[Speaker F] The Holy One also demands the moral principle, but that’s not Jewish law.
[Rabbi Michael Abraham] Jewish law takes it into account; it sees it that way. You can call it whatever you want.
[Speaker F] But halakhically I’m fine.
[Rabbi Michael Abraham] Halakhically, in the formal sense, you’re fine. The Holy One, blessed be He, will come to you with claims. Call it whatever you want, it doesn’t matter. Bottom line, it’s forbidden to do it.
[Speaker D] Bottom line, it’s forbidden to do it.
[Rabbi Michael Abraham] Now what Rabbi Shimon Shkop is essentially claiming is that beyond the prohibitions—and this is a major novelty—beyond the prohibitions that determine what one may and may not do, there is a system of territorial definitions that says: up to where does my sphere of control extend, and where does it end. And the halakhic considerations that tell me what I may and may not do deal only with my territory. They do not touch…
[Speaker C] But why, among the medieval authorities (Rishonim)?
[Rabbi Michael Abraham] After all, there are
[Speaker C] laws that say that if a person sells too cheaply, you can force him to stop.
[Rabbi Michael Abraham] If Jewish law says not, then not—no problem. If Jewish law says to kill a Sabbath desecrator, what gives the religious court the justification to kill me? My life is my territory. No—obviously Jewish law can also say, in certain cases, I expropriate the other person’s territory; you may make calculations. Usually it’s a religious court, not a private person, never mind. But Jewish law can infringe the rights of another. But if there is no clear halakhic determination regarding this, and all you have is a justification that there is no prohibition of “you shall not steal” here—that is not enough. A justification that there is no prohibition of “you shall not steal” is not enough. There also has to be permission to make calculations regarding something that lies in someone else’s territory. And that is really the point, and this we have not found. And since that is so, there is essentially “be killed rather than transgress” in this situation—but not regarding the prohibition of theft. Tosafot’s question is no longer difficult now, because Tosafot asked against Rashi: why didn’t they define “you shall not steal” too as one of the four grave transgressions? Because “you shall not steal” is indeed overridden for the sake of danger to life. It is not the halakhic prohibition that is not overridden; rather, it is the territory. You cannot—remember my neighbor, my friend from Bnei Brak, who says “you shall not covet.” This was really not long ago, I think—you remember I asked Alex, because he knows him too. Yes—where he says: I think I’ll violate “you shall not steal” and it’ll be with me, or I’ll violate “you shall not covet” and it’ll stay with you. So even if that consideration were correct, I would still be forbidden to take that object. Forbidden, because valid considerations I make about my own property, not about someone else’s property. So these are really territorial considerations. Now, the Arukh LaNer expands this to any harm to another person—he defines it as interpersonal commandments. That’s an unsuccessful definition in my opinion, because he clearly does not mean commandments like charity or helping another person. There is no such thing as “be killed rather than transgress” with respect to helping another person.
[Speaker C] It’s prohibitions, not
[Rabbi Michael Abraham] Not because of the prohibitions, but because of the infringement of the other person’s rights. It’s not a question of prohibition or positive commandment; it’s infringement of another person’s rights. In a place where you infringe another’s right—for example, the right to honor, if you shame him—that is infringing his right; it’s not your prohibition. You entered his territory. Your prohibition is a product of the fact that he has a right to preserve his honor. You can’t—what are you doing here? Okay? So the prohibition is a product of my right. That’s the difference between a right and an obligation: here the prohibition is the result of my right. Therefore when the Arukh LaNer speaks about prohibitions of “be killed rather than transgress,” he means prohibitions that belong to Choshen Mishpat, prohibitions whose foundation is my right, and therefore you are forbidden to violate my right—and for that you must be killed rather than transgress. Why? Because you cannot enter territory in which the rights are mine. In a place where you have to, say, help me—I do not have a right that you help me; rather, you have an obligation to help me. In such a case, whether it is a positive commandment or a prohibition doesn’t matter—in such a case you do not have to be killed in order to fulfill it. Yes, is that clear?
[Speaker E] It’s obvious this doesn’t hold water. I mean, there are so many more cases where it’s obvious this can’t be the Jewish law. For example, I’m driving on the road, a car comes toward me, and if I don’t… swerve hard into the cars standing on my right—there’s nobody in them, no human life is endangered—I’ll have a crash with lethal risk to me. Am I forbidden to steer my car into my fellow’s property?
[Rabbi Michael Abraham] That’s what Rashi says. What are we talking about? Forbidden.
[Speaker E] I have to wait in the car and die?
[Rabbi Michael Abraham] Yes, according to Rashi. Yes. That is the view I’m explaining. Now, in practical halakhic ruling we do not rule that way. All the medieval authorities (Rishonim) disagree with Rashi, but at least some of the medieval authorities who disagree with Rashi explain it by saying that the other person is also obligated to save your life.
[Speaker E] If it’s the Arukh LaNer, does he think this is the practical Jewish law, or is he just explaining Rashi?
[Rabbi Michael Abraham] I don’t remember at the moment regarding the sugya of one who steals, and he claims—I think so, yes—I think he claims that this is the Jewish law.
[Speaker E] In that situation he would wait?
[Rabbi Michael Abraham] That’s what he claims. Yes, yes, that’s what he claims.
[Speaker C] Wait, and according to this logic, if it’s a gentile’s donkey?
[Rabbi Michael Abraham] Wait, one second, I’m getting there. So really the point is that a person may not save himself at the cost of his fellow’s life. It’s not only his fellow’s life; according to Rashi it’s even his fellow’s property. Now even according to the medieval authorities who say—again, the practical Jewish law is not like that, the practical Jewish law is not like that—but I’m saying, even among the medieval authorities who rule not like Rashi, still from the reasoning you can see, like the Rashba I brought earlier, that their principled conception is indeed like Rashi’s. And in that sense it is important to understand. Now with regard to life, there it is much clearer. Because now the point is much stronger, and one could elaborate on this—I won’t get into all the proofs now, I have several proofs for it—that the prohibition against killing another, say when they threaten me in order to kill someone else—forbidden. A person may not save himself at the cost of his fellow’s life. People usually attribute this to the severity of the prohibition of murder. In my opinion that’s incorrect. It’s not because of the severity of the prohibition of murder; it’s because the other person’s life belongs to his territory. I cannot make decisions about his life unless he is a pursuer. If he is a pursuer, meaning he himself is creating the threat against me, then he has forfeited his life in order to save me.
[Speaker D] That doesn’t fit the Talmud’s reasoning, “is your blood redder,” and so on. Why?
[Rabbi Michael Abraham] “What makes you think—”
[Speaker D] “—that your blood is redder?”
[Rabbi Michael Abraham] Yes, but on the other hand the Talmud also doesn’t say “because of the prohibition of murder.” It doesn’t say that either, so the question is how to interpret it. Among the medieval authorities there are different formulations; there are several proofs for this. I think it is not because of the prohibition of murder. There may also be a prohibition of murder here, but the prohibition of murder is the result. Meaning, after all, what is the prohibition of murder? And to destroy my own life—is that not a prohibition? The Holy One, blessed be He, doesn’t care whose life is taken, right? Fine, so that’s why there is the consideration of passive omission—we already discussed this. Once there is passive omission, if now you go and kill the other person, it may be that you also violate the prohibition of murder, but that is only after the halakhic consideration—the consideration that asks whether there is justification to take a life—says there is no such justification. Once there is no justification, then the prohibition of murder also arises, just as with “you shall not steal.” That is to say, one could have said that the prohibition of “you shall not steal” is overridden in the face of danger to life; still, I am forbidden to take it because of territorial considerations. But now that I am already forbidden to take it because of territorial considerations, then the prohibition of “you shall not steal” will also be present here, because in the end when I take property without justification, then perhaps there is also a prohibition. But not because the prohibition was not overridden—the prohibition arises. The prohibition here is a result. Okay? So in that sense, perhaps here too there will be a prohibition of murder, but it is the result, not the reason. I’m saying: it depends somewhat on the formulations of the medieval authorities.
[Speaker E] What about public property?
[Rabbi Michael Abraham] What do you mean?
[Speaker E] A chevra kadisha vehicle—more severe, less severe?
[Rabbi Michael Abraham] What—damaging it in order to save myself?
[Speaker E] Damaging it in order to save myself.
[Rabbi Michael Abraham] I don’t think there’s any difference on the principled level. If that is forbidden, this is forbidden too. In any case, okay, so that’s a first point: it sheds stronger light on why I am forbidden to save myself at the cost of my fellow’s life, or perhaps even according to some views, at the cost of my fellow’s property. By the way, that Maimonides—about the fact that I may throw cargo into the sea and pay for it—that’s a big question, how exactly this fits. It may be that Maimonides belongs to the camp of medieval authorities who say that one may save oneself at the cost of another’s property if one pays. And that’s the point, although—I don’t know—there may also be some certain element here too; meaning, certainly when they share the loss, then it may really be that the owner of the property is also saved in some sense, and so he too is a partner in the situation.
[Speaker C] He’s saved in some sense because it’s his ship. What? If he’s on the ship? If he’s on the ship, then how are they sharing? Ah, meaning if he placed…
[Rabbi Michael Abraham] He may not be on the ship; he may be on the ship; but even if he’s not on the ship, he put the cargo on the ship, so he also has some interest in the ship not sinking. Fine, there may be some room there to distinguish a bit, but on the principled level it doesn’t matter. It may be that Maimonides follows that view among the medieval authorities which says that one can pay and save oneself.
[Speaker D] In any case, at that moment the property isn’t worth anything? What?
[Rabbi Michael Abraham] If they don’t throw it into the sea, the ship will sink anyway. So this is basically like a broken vessel that is already broken—in any case it is about to sink, yes, indeed. Now another point, what Arik noted earlier: what happens if it is the property or the life of a gentile? If the consideration is the consideration of the prohibition of “you shall not steal” or “you shall not murder,” then there would be room—yes, Torat HaMelekh—there would be room to say: regarding gentiles there is no “you shall not murder”; rather there is “Whoever sheds the blood of man, by man shall his blood be shed.” And if only the prohibition of “you shall not murder” prevents me from killing another person in order to save myself—here there is no prohibition of “you shall not murder,” so killing a gentile in order to save myself would be permitted. There, that’s a practical difference.
[Speaker C] The prohibition of murder regarding a gentile—that the prohibition of murder does not refer to a gentile, but only “Whoever sheds the blood of man”? That’s in the Talmud. Is there an explicit Talmud that “you shall not murder” does not apply to a gentile?
[Rabbi Michael Abraham] Yes. Also, one is not executed for killing a gentile—there is no death penalty under “you shall not murder”; it is under “Whoever sheds the blood of man.” In any case, if the consideration is one of prohibition—“you shall not murder” is one of the three severe transgressions and therefore one must be killed rather than transgress—then with a gentile, this is what they claim there in Torat HaMelekh, with a gentile there is no “you shall not murder,” there is “Whoever sheds the blood of man.” That is a different prohibition, and that prohibition is overridden in the face of danger to life. But if, as I said earlier, that is not correct—because the reason I am forbidden to do it is that it lies outside my territory. It’s not because of the prohibition; the prohibition is the result, the reverse. Once it is outside my territory, if I enter there I have violated the prohibition of theft, the prohibition of murder, or whatever it may be. But essentially this begins not on the halakhic plane; it begins on the meta-halakhic plane. Just as I said earlier with Rabbi Shimon Shkop, also regarding property the meta-halakhic prohibition certainly exists, and certainly also with respect to gentiles, since they own property just like Jews. Right? And they certainly also have a right to their lives; the life is theirs, it is not my territory, I cannot take his life—it does not belong to me in any way. Therefore even if the prohibition against killing him has weaker halakhic force, there would still be “be killed rather than transgress” here if that is the conception. And “be killed rather than transgress” is not a product of the severity of the prohibition—that is exactly the point—but of territory. And there you have the implication of the whole move I made earlier. If it is a result of “you shall not murder,” there is room to distinguish; but if not, then there is no room to distinguish. And so it comes out that really, even regarding gentiles—and indeed there in the Talmud, in Bava Kamma too, there is an entire discussion, Chronicles versus Samuel, there is a contradiction there—the Talmud there discusses whether these were Israelite barley fields, or Israelite haystacks, or Philistine haystacks. And it seems to me that the Talmud’s conclusion there is that even with Philistine haystacks—which he had, or haystacks of someone else, it doesn’t matter—you are forbidden to damage them were it not for the king’s law and “the king breaches a fence to make himself a way.” Meaning that this applies also to gentiles. Now I mentioned Rabbi Yisraeli’s responsum about the Qibya operation, where Rabbi Yisraeli says that indeed, even regarding gentiles, one is forbidden to harm either their property or their lives in order to save oneself, were it not for the laws of war.
[Speaker F] Maybe specifically with a gentile, because he isn’t obligated…
[Rabbi Michael Abraham] Exactly. Now I’ll say more than that—that’s a correct point. With a gentile, it could be even more severe. Because with a gentile perhaps even the Rashba would agree with Rashi in practical halakhic ruling. Because why does the Rashba say that I may harm another person’s property to save myself? Because the other person is obligated to sacrifice his property in order to save me; he has the obligation of “do not stand idly by your neighbor’s blood.” But that obligation exists only toward your fellow. A gentile is not obligated toward me in an interpersonal commandment. So if he is not obligated to sacrifice his property for me, it could be that the Rashba would agree with Rashi’s view that here I am forbidden to take the gentile’s property even if I die. Meaning that with a gentile it comes out more severe than with a Jew. Okay? The whole picture really gets turned on its head. Meaning, the level of prohibition may be lower—that is disputed—but the ability to take the property when my life is in danger is less, regarding a gentile.
[Speaker B] By the law of “do not stand idly by your neighbor’s blood.” What? By the law of “do not stand idly by your neighbor’s blood.”
[Rabbi Michael Abraham] No, the opposite—because the gentile does not have “do not stand idly by your neighbor’s blood.” Yes. Rabbi Yisraeli, by the way, writes this too, I think—he writes it in that responsum. So that is really the map. Okay. Now let’s return to our discussion. When we now discuss harming innocent people—say, a targeted killing, okay, a somewhat targeted killing—so you fire a missile at a car in which a terrorist is sitting; there is a tangible danger coming from him toward you, but in the car there are also uninvolved passengers, or a bus, or a car, no matter, with other people traveling with him. So in such a case the matter will depend on the question whether this is a case of the law of a pursuer or the law of saving oneself at the cost of another’s life, right? If I am harming a pursuer, no problem, certainly it is permitted and even a commandment. But if I am harming someone uninvolved in order to save myself, then seemingly that is saving oneself at the cost of another’s life. So harming the terrorist is no problem—but what permits harming the uninvolved because the terrorist threatens me? More than that: the terrorist who is holding a baby in one hand—we discussed this, yes—and a gun in the other hand, okay? Am I permitted to shoot him in self-defense? The baby is uninvolved. Am I permitted to kill the baby in order to save myself? The fact that the terrorist is also there with him doesn’t help, because the baby as such I am forbidden to kill. So the terrorist I may harm—but why does that justify harming the baby? The baby I may not harm. And then it comes out that I really have to die and not shoot him. Why?
[Speaker I] A pursuer. A pursuer who is holding a baby—you can’t kill him?
[Rabbi Michael Abraham] Seemingly not. The pursuer I may kill, but he’s holding the baby, so how may I strike him?
[Speaker I] There’s some idea here of a pursuer of his fellow.
[Rabbi Michael Abraham] Fine, so there, regarding the fetus, we said that a fetus may be killed because it does not have full life-value. But in principle, if she is holding a baby that has already emerged head first, then it is forbidden. Seemingly. That is what Rabbi Yisraeli writes as practical Jewish law; that is his conclusion. He only argues that under the laws of war this is the rabbit— we talked about how in the end they always pull this rabbit out of the hat, yes—but under the laws of war it is something else. Now, here I already said that I don’t like this solution of the laws of war, because it has no source. It’s some kind of invention… where did it come from?
[Speaker J] What kind of rabbit is that? Why in war are there different laws?
[Rabbi Michael Abraham] Where is it—where do these laws appear?
[Speaker J] That in war it is permitted to kill?
[Rabbi Michael Abraham] Of course—the one who threatens me. Of course. The one who threatens me.
[Speaker J] On an ordinary day it’s forbidden to kill?
[Rabbi Michael Abraham] No—the one who threatens me.
[Speaker J] If I go out to war…
[Rabbi Michael Abraham] The one who threatens me! Listen, even someone who threatens me—I’ll go out to him outside the house and kill him.
[Speaker C] But if you go out to conquer, it has the status of war…
[Rabbi Michael Abraham] Then that is an optional war; that is something else. An optional war is something else, because there in very specific cases the Torah permits an optional war.
[Speaker C] It’s really a big question—in certain cases there is permission, as though you can conquer lands just to expand the borders of Israel.
[Rabbi Michael Abraham] Doesn’t matter. In those cases, if the king decided in order to expand the borders of Israel, he is allowed. Fine, so what? So what? But does that mean that in war it’s permitted to do all kinds of things? Every case has to be judged on its own. Tell me what is permitted and what is forbidden. Is it permitted to harm uninvolved people in such a case? People not involved in the war? Who says? In other words, the claim that “these are the laws of war” exempts you from bringing justifications. Laws of war and everything is fine. It’s always when you get stuck with the halakhic accounting that you pull out this thing of…
[Speaker F] But the laws of war do have a source, and it’s the same kind of source as ownership or territory, as you call it. That’s just how the world is; it’s the form…
[Rabbi Michael Abraham] So as I said, I only brought Rabbi Sheviv’s article last time, where he really wants to derive from the laws of war, yes, and make it into something more detailed, more concrete, and learn it from common practice in the world.
[Speaker F] It doesn’t matter what common practice in the world is. I mean it does matter, but the idea is to say that the answer here is whatever straight common sense says. That’s the source.
[Rabbi Michael Abraham] Here the source… Shlomo, but the claim is… he wants to give it some justification. Common sense, with all due respect. But to kill on the basis of common sense?
[Speaker F] If the world is now corrupt in an unreasonably extreme way…
[Rabbi Michael Abraham] No, it doesn’t have to be. Then I don’t care; then it’s the agreement of the civilized world.
[Speaker F] So it doesn’t matter whether common sense…
[Rabbi Michael Abraham] What seems moral! Doesn’t matter—but still… Is there some legal basis here for saying that here we go by reason? Because the fact that you can kill someone because your reason tells you something—that has to be backed by some meta-halakhic infrastructure, I don’t know exactly what. So I said: the laws of war are an agreement of all the nations, that they enter war under certain rules, with certain justifications, and that binds us too.
[Speaker F] Even in laws outside war, in the end that’s how it is too. What do you mean? Just as you forbade me to kill, or in the case of theft to take his things, or to kill a person because it’s his territory, and that’s not at all a question of…
[Rabbi Michael Abraham] Of course I forbid you—but here I permit you. What? Here I permit you, not forbid you.
[Speaker F] Doesn’t matter. By the same principle you forbid, and here by that same principle you permit.
[Rabbi Michael Abraham] Not the same principle—it’s the opposite principle. Why are you entering my territory and killing me? I’m uninvolved.
[Speaker F] The principle of whatever seems moral to you!
[Rabbi Michael Abraham] No, no, that’s problematic. It seems so to me and not so to him and yes so to me…
[Speaker F] That’s exactly how you worked, the same way Shaarei Yosher worked regarding money.
[Rabbi Michael Abraham] No, no, it’s not like that. There is a definition that says that when you have territory, I cannot make decisions regarding that territory.
[Speaker F] Where does that definition come from? It’s a definition you built because it seems to you that this is the right thing.
[Rabbi Michael Abraham] Of course, but I’m saying no, it’s not like that, because this definition is a definition that can be tested. You can examine it; you have rules for how to apply it. But if you tell me: here it seems right to me and here it doesn’t, and everyone will do whatever he wants and say “it seems to me this way” and “my common sense”—it doesn’t work like that. A legal system, a halakhic system, cannot work like that. You need to justify it with some shared logic that can stand before the common sense of many people. So I’m saying: these are always meta-halakhic justifications that converge into common sense, but even common sense does not mean “that’s how I do it because that’s how it seems to me, period.” It has to stand within some structural framework, meaning within some conceptual framework. Never mind. In any case, that is what Rabbi Sheviv tries to suggest. I myself am really torn on this issue, because if that is really so, then we’ve gone back again, okay, so let’s see what international law says, or what the agreement of the nations says—and it’s not at all certain that all of us always agree to follow exactly what the law… Just pulling “laws of war” won’t satisfy us; beyond the fact that I don’t really like it because it’s a sort of little rabbit that gets pulled out as needed. It also won’t really provide an answer.
[Speaker C] Maybe—wait—but from the laws of war one could learn from what the Rabbi mentioned earlier, that in Sanhedrin they said to him: for David it was forbidden, but for you it is permitted, because “the king breaches a fence to make himself a way.” Okay. One could say the same here—what does that mean? Since this is a law, since—that is, we see that kingship has, assuming the government has the authority of a king,
[Rabbi Michael Abraham] Then to expropriate property, yes—but what about to kill? To kill innocent Palestinians—does the government have authority? Innocent? Uninvolved?
[Speaker F] If you prevent
[Speaker I] the killing of many Jews, yes?
[Rabbi Michael Abraham] So what? And not—
[Speaker I] harming, so what?
[Rabbi Michael Abraham] They’re uninvolved. What does that have to do with it? Solve your problems with yourself—why are you harming me? That’s the logic of “a person may not save himself at the cost of his fellow’s life.”
[Speaker F] It depends how many.
[Rabbi Michael Abraham] Fine, and here begin all the proportionality talk and these amorphous concepts that are very hard to fit into a pattern.
[Speaker F] And it will always remain that way.
[Rabbi Michael Abraham] No, it won’t always remain that way. I’m trying to offer a more orderly conceptual framework. Of course, as I said, it won’t solve all the problems and turn this into mathematics, into a closed algorithm. But it will give some somewhat more systematic mode of thinking around this issue. Obviously in the end we will still need common sense and proportionality and so on. But today it’s all—you ask people in this field, “this isn’t proportional and that is proportional,” and nobody justifies anything. It seems so to me and not so to me, and that’s it. You feel there’s no room for discussion; you can’t talk. That is the price of not formulating an ordered doctrine on this matter. I also spoke with Menachem Finkelstein, who was Military Advocate General, altogether around this issue. I was astonished to discover that there is nothing organized except “this is proportional and that isn’t proportional.” They don’t operate with… there is no orderly conceptual framework for how to handle this kind of problem. Even at this level of understanding: there is the law of a pursuer and there is saving oneself at the cost of another’s life—two things that contradict one another. You have to decide in each case whether it belongs here or belongs there; that is an initial framework. Now I’ll continue further. Look, I think that instead of saying “the laws of war”—and this is really the intuition behind the laws of war, in my view, but for that you don’t need to reach the laws of war—it is this, and here I come to the collective question. What stands before us is really not private individuals. In the situations I’m speaking about right now—in other situations too, but in the situation I’m speaking about right now—it’s not private individuals. We are dealing with a war between two peoples. Okay? Two groups, two collectives. Now true, on each side there are some who carry weapons and there are civilians who do not participate in the war. That is a division of labor each people makes within itself. We too have people who are obligated in military service and are in service, and others who are civilians. It’s a rotation. But in principle, what you really have here is an arm of the collective. The army or the fighters are the arm of the collective. Once you understand that there is a struggle here between two collectives, the war is really a war between two collectives and not between private individuals, the situation changes completely. Why? Because now, when I need to harm the terrorist and there are several other people sitting with him in the car who are not carrying weapons, they stop being a third party and become the pursuer. Why? Because my pursuer is not the terrorist; my pursuer is the Palestinian people. Right now I am fighting them. That is the people I am fighting against. Now once I define the pursuer standing against me as a collective, the whole picture changes. Because if the collective is pursuing me, then my pursuer is not the person holding the gun but the people who sent him. This individual is the hand or the limb of the collective that is holding the weapon. Just as I would not say that a person’s hand is the pursuer and therefore I am forbidden to strike his leg, the individual person. Now what I really want to argue is that there is…
[Speaker E] Then do you permit atomic weapons? What? The weapon…
[Rabbi Michael Abraham] No, no, wait. Let me complete the picture and then… then we’ll see.
[Speaker G] But then you also go to atomic weapons?
[Rabbi Michael Abraham] That would also justify their missiles. One second, one second, just a moment. Right, right. Now, so now the point—I just haven’t finished the… I’m trying to show here a more orderly scheme. I’m not really solving every question mathematically. But now, so there is here a collective pursuer. Once there is a collective pursuer, the status changes. We moved from the principle of saving oneself at the cost of another’s life to the principle of the law of a pursuer. Right? Because now, what stands before me no longer has the status of a third party, because what I see before me is not individuals, but a collective.
[Speaker D] So there are no uninvolved people.
[Rabbi Michael Abraham] There are no uninvolved people. But—now all the qualifications, yes? After all, clearly… with regard to a pursuer, I am forbidden to harm the pursuer… if I can save him by injuring one of his limbs, right? Even with an actual pursuer. A private pursuer, a private person. If I can shoot him in the leg and thereby save myself, I am forbidden to kill him. The same is true with a collective pursuer. Notice: I can derive all the laws from the private case; we don’t need any laws of war. Everything proceeds in a completely systematic way. Of course, the metaphysical assumption is that there is a collective and it has standing in this discussion; the collective is really what stands here. Beyond that, everything continues as usual with the law of a pursuer, entirely normally. No need for any rabbits out of the hat. The law of a pursuer—just as with a private pursuer you cannot kill him if you can harm one of his limbs and save yourself, so too with a collective pursuer. Therefore, if you can strike the terrorist without striking uninvolved people, that means you remove the threat from yourself by harming this individual. Then you have no justification for killing the collective in that situation; you have no justification for harming other limbs. You must inflict the minimal possible harm needed to save yourself. Okay? Just as with a private person, so too with a collective. So on the one hand, these people have the status of a pursuer, and if I need to strike them in order to save myself and there is no choice, then I will strike them. But if I don’t need to strike them—not because this is saving oneself at the cost of another’s life. It remains the law of a pursuer. It’s just that even under the law of a pursuer, I am forbidden to kill someone if I do not need the killing in order to save myself. So I am not retracting my definition of all of them as a pursuer—a collective pursuer. But that still does not mean that it is permitted to harm innocent people, because harming innocent people means harming the pursuer when you can save him by injuring one of his limbs. That is forbidden to do—not because they are not a pursuer.
[Speaker E] If the only way to stop him is to harm someone innocent?
[Rabbi Michael Abraham] Then yes, then it is permitted. That’s exactly the practical difference. Then it is permitted.
[Speaker E] Just as when he’s in a bunker under a hospital, same thing.
[Rabbi Michael Abraham] Correct, permitted. Yes, that’s exactly what I’m saying. The claim is that there is really a collective pursuer here. What—so have we still reached catastrophe? I said, I said, I’ll get there in a qualified way. I’ll arrive at a place where in order to solve the threat posed to me I need to kill the collective standing opposite me—the collective is a pursuer.
[Speaker C] But it’s always like that—what do you mean? If you’re conducting a war, you can’t—you have ten thousand terrorists—you
[Rabbi Michael Abraham] can’t avoid, you can’t—
[Speaker C] kill them one by one without destroying the collective,
[Rabbi Michael Abraham] you have to destroy all of them. No—you made a conceptual leap, you made a conceptual leap, and it’s incorrect. It’s not always like that. It’s always impossible to avoid harming uninvolved people, but it’s not true that there isn’t even one uninvolved person whose harm can be avoided. No—but most of the collective… no, what do you mean most of the collective? That’s not true.
[Speaker C] In today’s reality?
[Rabbi Michael Abraham] Those people whom you need to harm in order to defend yourself.
[Speaker C] But in today’s reality, you have tens of thousands of enemy fighters or terrorists, whatever we call them, spread throughout the population. Maybe, maybe.
[Rabbi Michael Abraham] You’re asking whether in today’s reality the situation is that you cannot remove the threat—and this is a big question, what does “remove the threat” mean—but if you cannot remove the threat without harming the entire Palestinian population, then on that basis it is permitted to harm the entire Palestinian population.
[Speaker C] But that is the reality of war.
[Rabbi Michael Abraham] No, that is not the reality of war. The question is what counts as a threat, how certain it is. The general question is whether such a thing counts as a threat that justifies killing people, or whether it has to be someone now holding something that threatens me concretely. That is not a simple question, and I have no sharp answer to it. But it is not true that we immediately reach catastrophes. It is true that we can reach catastrophes. True, and possible. If it depends
[Speaker E] on the person, then why does the collective become the pursuer? What? If it depends on the concrete person with the weapon in his hand, then why—how?
[Rabbi Michael Abraham] No, it doesn’t depend on that. I’m saying: if the collective sent him, it’s the collective. If a Swede were threatening me now, I would be forbidden to kill all the Swedes.
[Speaker E] Only
[Rabbi Michael Abraham] if the Swedes sent him, if he is acting on their behalf.
[Speaker E] Wait, now if… and if the Swede is in the car with a group of other Swedes? Again? Then also no. A group of Swedes sitting in a car
[Rabbi Michael Abraham] and one of them is a terrorist on his way to carry out an attack.
[Speaker E] Also no, simply no, under no circumstances.
[Rabbi Michael Abraham] What difference does it make whether they are Swedes or not Swedes? Only if he is the representative of the Swedes in threatening me—only there is it permitted, certainly. Otherwise it is forbidden; it has nothing to do with it.
[Speaker C] Wait, now what if there is a tourist in Gaza?
[Rabbi Michael Abraham] Ah, that’s… right, another implication that comes out of this model: if there is a tourist, for example, in that car, then I would not be able to strike that car. That is another implication.
[Speaker D] Because he is not part of the collective.
[Rabbi Michael Abraham] He is not part of the collective. I have no justification for killing someone uninvolved—this time he really is uninvolved. He is not a pursuer whom one cannot save by injuring one of his limbs; rather he is… saving oneself at the cost of another’s life. That is forbidden, even with gentiles.
[Speaker G] Is he considered uninvolved when he is there? What if he is there?
[Rabbi Michael Abraham] He’s a tourist, what? Now he has…
[Speaker G] No, what does that mean? A journalist?
[Rabbi Michael Abraham] A journalist too. A journalist too shouldn’t go in there.
[Speaker K] You can say, I can tell everyone now: it is forbidden to enter, don’t go in there.
[Speaker G] A journalist too. Fine, but what if there is a journalist who harms me because he reports in their favor? Let him report.
[Rabbi Michael Abraham] No, that’s another discussion. I’m saying beyond that—even if he reports in their favor, that still doesn’t mean… I told you not to go in there. But I’m saying: if you write, “Look, friends, I am now informing the entire world…” I’m at war there in Gaza. Whoever goes in there takes a risk. If a journalist enters there now, or a tourist, one may strike him, no problem. He cannot enter there and then prevent me from defending myself—that’s obvious. But if a tourist goes in there and then suddenly such a situation arises, then according to this model it is forbidden to kill him. Now unless they pull rabbits out of the hat—war—and I don’t know exactly what. But I’m saying there is a model here, I think, much more orderly for thinking about these kinds of problems. Now I’m not saying it solves all the problems, because now you have to decide what counts as a threat. To what extent does it justify harm? Is it specifically a terrorist now aiming a missile at a concrete house, or someone who manufactures missiles?
[Speaker D] Like the story of the Americans in World War II: listen, if we don’t drop those two atomic bombs there, the war with the Japanese will continue another year and we’ll have another two hundred thousand dead.
[Rabbi Michael Abraham] To that I have no answers. I don’t know exactly. Here I can no longer avoid common-sense considerations, but I think that those common-sense considerations at least now lie within a more orderly conceptual framework. At least you know what the rules of the game are.
[Speaker F] But if you speak of it
[Speaker K] as a collective, after all here you can have people—perhaps even a majority—who are
[Speaker F] even against it.
[Rabbi Michael Abraham] It doesn’t matter. I brought Maimonides—it doesn’t matter. Who is this collective? Who created it?
[Speaker K] You’re saying that anyone who belongs to the Palestinian people—even if it’s a minority that opposes him and is willing to live with him in peace—that doesn’t matter at all, it doesn’t matter at all, and it may even be by force within that framework.
[Rabbi Michael Abraham] No, no, those are two different things. Rabbi—but there is a situation where, like Maimonides, we talked about the people of Shechem. Maimonides, regarding the people of Shechem, writes that the justification for Shimon and Levi killing the people of Shechem was that they did not enforce justice in Shechem. Because of what was done to Dinah, they violated the commandment of laws. Then Nachmanides, I think, or several commentators ask Maimonides: what do you want from the ordinary citizen? Is he supposed to judge his king because he robbed Dinah? And the answer to that may be that the ordinary citizen could not do it. We talked about Stalin, remember? It was in that context. So maybe he couldn’t judge him—but all the citizens together can. And ultimately, if the Palestinian people cannot overcome these phenomena that emerge from within them and in their name, then they bear collective responsibility, even if they oppose it—that’s my claim—even if they oppose it. Again, I’m saying: if there’s some private individual here and everyone says, he doesn’t represent us, but he seizes power by force and does it—that’s something else. And again, the boundary is not sharp. But on the principled level, you are a partner in this course of action, you give it some backing, you do not fight against it—you have a problem. I should not have to bear these consequences; you will bear these consequences. This is what comes out of your collective. If you don’t bear the consequences, if you don’t deal with these problems, then bear the consequences. What am I guilty of? I’m certainly not guilty of there being a threat against me from Gaza. I’m certainly not guilty of that, right? Absolutely not. So who is going to bear the consequences now—me, or the civilians there who may oppose this but are not doing enough to prevent it?
[Speaker C] What was the case with the Israeli soldier
[Speaker G] who murdered someone without justification—you don’t have to go that far. Rabbi, that’s no longer law.
[Speaker C] A pursuer—everyone.
[Rabbi Michael Abraham] Guilty, because we sent him. Not all of us are guilty—only if there is really a danger that it will continue. And if so, then yes, of course. Meaning, this is not about punishment. I’m not talking here about punishment; I’m talking about prevention. This is the law of a pursuer.
[Speaker C] That all of us didn’t enforce justice on him, or let’s say not all of us.
[Rabbi Michael Abraham] No. Maimonides is talking about punishment, and there you need a religious court. I’m talking about the law of a pursuer, based on the same reasoning—not about punishment. I’m not talking about punishing the Palestinian; I’m talking about the law of a pursuer, to prevent the threat.
[Speaker C] According to Maimonides’ reasoning, that’s according to
[Rabbi Michael Abraham] Also laws, yes—but for that you need a religious court and so on. I’m not entering that category.
[Speaker G] But doesn’t this argument complicate things a bit? Because then you’re basically dropping the law of a pursuer altogether, since the Palestinians will now use exactly the arguments you’re making, and they’ll say, listen, they—
[Rabbi Michael Abraham] They won’t use them? They do use them. What?
[Speaker G] No—and the fact that we’re not okay, that we’re firing rockets at you, that still doesn’t mean you even have moral justification to fire a rocket at him because he’s a pursuer—not him at all.
[Rabbi Michael Abraham] What do you mean? Of course I have moral justification. The question is whether I think I’m right or he’s right. If I’m right, then he is the pursuer. If he’s right, then I am the pursuer. Then we have a war.
[Speaker K] Yes, but then on that level you can’t use this strong argument that we stand behind all the time, and supposedly we expect the whole world to stand behind us on: what, are you now firing rockets at civilians? So I’m saying: we are a collective together with our army—so are they allowed to fire rockets at us?
[Rabbi Michael Abraham] So I’m saying: in a place where there is clearly a threat to him, as he perceives it—I disagree with him—but there is a threat to him, and he cannot deal with that threat without harming civilians, so again, assuming all that is true—I don’t think it is true, but assuming it—then I have no claim against him. He is right according to his own view.
[Speaker K] Leave aside now whether it’s really a threat or not a threat. You said that once two peoples go to war, the entire people becomes a pursuer, obviously. So here you stop distinguishing between
[Rabbi Michael Abraham] an innocent person and a pursuer, because
[Speaker K] you said everyone becomes one block, no?
[Rabbi Michael Abraham] Not completely. And again, if you can strike him and not one of his limbs, then there is no justification for harming an innocent person.
[Speaker K] I understand that, but—you’re now making the distinction of whether I can save myself or not save myself, but in general you just said: the whole people, all of us in Haifa and in Jerusalem and everywhere. Obviously. What’s the question? Is it justified in principle to fire at us? Unequivocally yes!
[Speaker D] Unequivocally yes! No, no—not at them, not at them—at whoever is firing at you. If you have a position and you know there are a few more civilians inside that position, inside the position it is permitted to fire at them.
[Speaker K] They see the whole thing as a collective.
[Rabbi Michael Abraham] No, again, that’s not the issue. No, no, that’s not the issue. Again, no, that’s not the issue. Even if all of us are pursuers, there is no justification for killing us. That’s not the point. You have to focus on neutralizing the threat. If in order to neutralize the threat you have to harm civilians, then yes. We are exactly the same. We also do not harm Palestinians because they are a pursuer. We harm uninvolved people where neutralizing the threat requires it. Now, yes, it’s completely symmetrical. The argument is over the question of who is right. I think they are mistaken, that their reasoning is false. That’s what I think. But that is what they think, so from their perspective, of course that is their reasoning. What’s the question? I think that if they signed a contract with me they would achieve much better results and would prevent all the threats they think they have from me. But they claim otherwise. So I think they are wrong, but from their perspective that is their justification.
[Speaker D] No, it’s not symmetrical in practice, because when they fire rockets at Rishon LeZion, they’re not firing in order to neutralize a threat.
[Rabbi Michael Abraham] They claim that they can’t deal with the army, and therefore they fire at civilians. That’s what they claim.
[Speaker D] So that’s how they conduct—
[Rabbi Michael Abraham] Neutralize a threat? Yes, yes, because the army knows it doesn’t start up with them, because otherwise civilians will be harmed—and it works.
[Speaker F] Why?
[Speaker D] It works very well—it works in reverse.
[Rabbi Michael Abraham] What do you mean? They are deathly afraid of wars.
[Speaker D] Yes, but when they fire at our cities, then they get hit with two thousand rockets.
[Rabbi Michael Abraham] So they get hit, but we are now afraid to fire at them. If they didn’t fire, they wouldn’t get hit. But we are afraid to fire at them. It works the other way? No, it works directly. It works excellently. They are achieving their goal one hundred percent. In that sense they are right, great. We are deathly afraid of wars much more than they are.
[Speaker D] We don’t fire at them? No? What happened in the last war a year ago?
[Rabbi Michael Abraham] Fine, wars—
[Speaker J] Those were not wars.
[Rabbi Michael Abraham] We did a few little toys and that was it, nothing significant.
[Speaker D] On Gaza? Why? Why? What did they do to you in Gaza?
[Rabbi Michael Abraham] Fine, never mind—what did they do to you in Gaza that year?
[Speaker D] I think it was—they’re constantly working on their stockpiles. I’ve got a serious struggle here.
[Speaker K] Fine, never mind, it’s an argument—
[Rabbi Michael Abraham] Let’s not get into that, it doesn’t matter.
[Speaker K] What I just want to say is that in the end you’ll still get to the laws of war. When you start analyzing that very—
[Rabbi Michael Abraham] I said: I can call it the laws of war, but I have some conceptual framework within which this is conducted. I’m not pulling some rabbit
[Speaker K] out of a hat and it solves all my problems. When you get to the specific analysis—whether that particular limb threatens you or doesn’t threaten you—then it’s a shame to bring in
[Rabbi Michael Abraham] this collective
[Speaker K] and turn it into the enemy.
[Rabbi Michael Abraham] But it’s not a matter of “that’s a shame.” What do you mean, a shame? That’s the truth. I’m not doing it because it helps me. I think this is the correct theory—not because it solves problems for me, but because this really is the correct understanding of the situation.
[Speaker D] But in my opinion the conduct really is exactly like that, even if they don’t do the exact calculation. What does my staying power mean? They look and say: listen, he fired there at that, he’s firing at us, and he’ll kill and they’ll be killed there… Sometimes it comes down to that and sometimes it doesn’t. Fine, but this was a very significant threat, there was no choice.
[Rabbi Michael Abraham] And proportionality, for example, enters into this.
[Speaker D] It was impossible to save him by injuring one of his limbs.
[Rabbi Michael Abraham] Do you blow up a bus if the terrorist is inside it, or only his private car when there are two or three others riding with him?
[Speaker D] Depends how valuable he is… if that bus has explosives in it—
[Rabbi Michael Abraham] No, there’s nothing, nothing—there’s a terrorist whom you need to eliminate. That’s all. The question is what level of terrorist he is.
[Speaker G] Today that’s called disproportionate.
[Rabbi Michael Abraham] But the proportionality here is not because it isn’t a threat, but because there are many civilians. It is quantitative; proportionality is often a quantitative consideration. It’s not only that kind of consideration. Fine, the quantitative consideration is also important. I’m not denying that. I’m only saying: fine, I can’t replace all the considerations of common sense, but I do think this needs to be placed within some orderly conceptual framework. And it seems to me that this is the orderly conceptual framework. Now I haven’t even had time to get to what I’ve already been trying to get to for the second or third time. Left and right… yes, exactly. But still, in a few sentences. Look, the argument really—I started by saying that the argument over harming innocents somehow is usually conducted along the lines of left and right. Usually, not always, but there’s a high correlation. The question is why. What does this have to do with it? This is a moral principle, and this is a political, security, ideological principle, whatever.
[Speaker I] As if the left says
[Rabbi Michael Abraham] that it is forbidden to harm innocents and the right says yes? But the left also wants to defend itself against terror, yes? That’s obvious. And the right does not just kill people for no reason. So ostensibly everyone agrees on the moral principles. The difference between them is an ideological-political difference: what is the way to solve the problem. But somehow, in the end, even the moral arguments are fought along the borders of left and right. And the question is why that happens. What I want to argue is that the dispute—the dispute here is not a moral dispute. It is a mistake to see it as a moral dispute. Its implication is moral. The dispute is a metaphysical dispute. That is the dispute. The dispute is over whether what you see standing opposite you is a collective or individuals, a collection of individuals. The dispute is over the essential model or the quantitative model. If you see that what stands opposite you is a collective—and you hear this in the discourse all the time—the right says: what stands opposite us is the Palestinian, not the wicked and the righteous and Abu Mazen is like this and Abu Not-Mazen is not like that. What stands opposite us is the Palestinian. We are at war with them, and we need to face reality. That’s what the right says. And the left says no, there are wicked people and they need to be dealt with, and there are righteous people and they must not be touched, innocents and so on. Everything operates with individuals, and you may not harm innocents. And the difference is not a moral difference; the difference is a metaphysical difference. At its root, the left sees the collective model as a quantitative model. For it, what exists in the world is private individuals. I’m talking about the contemporary left, not communism—I’ll soon have to make a few remarks about the relations here, it’s very complicated, yes. But I’m talking right now about what is called the left today in this context, which goes a bit with economic issues, but not always. So the left—I want to suggest the definition now—the left is someone who sees the world as something composed of individuals. And that is a metaphysical view, not a moral one—a metaphysical one, which has moral implications, but it is a metaphysical view. The right disagrees with the left not in a moral dispute. Both the right and the left agree to all the moral principles I have said up to now except for the last one—except for the last one, which is not a moral principle but a metaphysical one. All the principles—that if there is a law of a pursuer, you may kill the pursuer—are agreed upon by the left, agreed upon by the right, agreed upon by everyone. The principles that you may not harm a person in order to save yourself are agreed upon by the right, agreed upon by the left, agreed upon by everyone. The two principles that determine the rules of the game are agreed upon. That if you can save yourself by injuring one of his limbs—all agreed. So what is the difference? The difference is the question whether you see the one standing opposite you—wait, wait—whether what stands opposite you is a collective pursuer. If the right perceives that what stands opposite it is a collective, then once that is so, the people riding in the car with the terrorist belong, in its eyes, to the category of pursuer and not to the category of someone saving himself at the cost of another’s life. So consequently, according to the principles that are also accepted by the left, it says that it is permitted to kill them. It is not because of a moral dispute. On the moral level everyone agrees about everything. The dispute is a dispute about the metaphysics of the matter. And the left says: what are you talking about? These are private individuals. Some are uninvolved, some oppose it—all the arguments from earlier are typical left-wing arguments. Again, I’m not trying to classify everyone; let everyone classify himself however he wants. But typically, on the principled level, these are arguments that in essence are left-wing arguments, because they basically see people as a collection of private individuals. The collective is a fictitious definition meant to serve the private individual, but you do not see collectives standing before you—it is a fiction. What you see before you is people, and you cannot harm one person in order to save yourself from a threat coming from another person, because a person may not save himself at the cost of another’s life. And the person who sees the situation that way is right according to his own view. He sees the right-wing position as a moral injustice, but he does not understand that his dispute with the right-wing person is not over morality but over metaphysics. Of course it has a moral implication: my different metaphysics leads me to do something that in his eyes is a moral injustice. But it is a moral injustice not because of a different moral principle, but because the metaphysics he sees before him is different. That is basically what I want to argue.
[Speaker E] Is there anyone who claims that they are not Palestinians as they define themselves? What?
[Rabbi Michael Abraham] What does “they are not Palestinians” mean? But they define themselves as a Palestinian people, and from my perspective they have created here a collective pursuer.
[Speaker E] No, but there is
[Rabbi Michael Abraham] the claim that there is a historical Palestinian people… For purposes of the law of a pursuer, this group of people, this group—
[Speaker D] this group of people—
[Rabbi Michael Abraham] it does not matter whether they are a people or not in the ethnic sense. There is a group of people here. Not true—he agrees there is a group of people organized under a common government, which sends people on its behalf to murder us. What difference does it make how far back their ethnic roots go? Whether it goes back to the Philistines or whether it was created thirty or forty years ago—it doesn’t matter.
[Speaker C] Does someone who says there is a Palestinian people mean that it goes back thousands of years? He says there is a Palestinian people because they defined themselves as a people, and therefore they are a people if they define themselves that way. Fine. It doesn’t matter. And someone who claims there is a Palestinian people… and someone who claims there is no Palestinian people…
[Rabbi Michael Abraham] Someone who claims there is no Palestinian people says that this people does not deserve rights to the land. But for the purpose of defining it as a collective, what’s the problem? Of course yes—why not? There is a group here that organized itself to pursue me. You call it the Arab people and not a separate Palestinian people—so what? There is a group here that organized itself in order to pursue me. What do you mean? No one disputes that. The question whether they are a people in the sense that they now have the right to claim sovereignty over the territory—that’s another question. I claim they do not, let’s say; it doesn’t matter. But clearly there is a group here that organized itself against me to pursue me. Those holding the weapons are representatives of that group, so from my perspective this is a collective pursuer. And that’s all. It has nothing to do with the question of whether there is or is not a Palestinian people.
[Speaker J] It could be a village, and it could be—yes, right.
[Rabbi Michael Abraham] A group that organized itself, with different ethnic origins, a gang of robbers—but when they are together pursuing me.
[Speaker K] Then you’re also allowed to kill their children?
[Rabbi Michael Abraham] Certainly, certainly. And you—no, if it is in order to save—
[Speaker K] This is called—you’re now, that’s it, but now you’re going back again into the considerations of whether it is one of his limbs, right. But then you are already exactly within the considerations of the left. No. Certainly yes, because if you now come to check, let’s say even if you said that—
[Rabbi Michael Abraham] I didn’t understand. Right now, in the car with the terrorist, there are several innocent civilians.
[Speaker K] When you now come to examine whether you want to, whether you can—
[Rabbi Michael Abraham] I’m giving you that situation—what do you do with it?
[Speaker K] And in that situation both sides, both the right and the left—I hope also the right—will come and examine the question whether that pursuer, which includes also the civilians and that one, whether I need in order—
[Speaker D] It is impossible to save otherwise.
[Speaker K] whether I can carry it out?
[Rabbi Michael Abraham] No, it is impossible to save otherwise. This terrorist—you cannot kill him unless you now send a missile at him. What do you say? So the fact is that at least part of the left opposes actions like that. Yes. In targeted killings, there were pilots who refused to fire. What do you mean? Now I’m not saying that this is the whole left. Of course there are shades, and on the right too there are shades. But broadly speaking, the division is indeed a division between left and right.
[Speaker K] There is—when we talked—that’s not true, that there is agreement.
[Rabbi Michael Abraham] That’s not true, absolutely not true.
[Speaker K] To come and say that a collective also includes all the families who are not connected to—wait, one second. Is that definition not artificial, to come and say that this is metaphysical? In my opinion it is moral. It is a moral distinction. When you turn a collective—yes, even if there is a collective that rose up against a collective—you take from within that collective families, children, women, and turn them into that same collective? That is a moral question and not a metaphysical one. What do you mean “turn them into it”? They turned themselves into it. They defined themselves. It’s a question—look, these are the lives of thousands of people living there because they live there; they didn’t join
[Rabbi Michael Abraham] anything. It’s a question of terminology. I—it’s just a question of terminology.
[Speaker K] You are very much emphasizing
[Rabbi Michael Abraham] the—no, so I’m emphasizing the distinction in order to explain, but I’ll explain what I mean. Obviously, if I do this, a person who does not see the metaphysics as I do sees this as a moral injustice. I said that before too. Obviously. Of course there is a moral dispute here in the bottom line. I only claim that the roots of the dispute are really metaphysical roots. If you break down the bottom line and ask what leads to this decision, then I say: there is a pile of moral principles—the law of a pursuer, saving him at the cost of another’s life, if you can save yourself by injuring one of his limbs, all of these—and there is the metaphysical question. Okay? Now under this definition there is no dispute at all between us regarding moral principles. No dispute whatsoever. All the moral principles are completely agreed upon. Only the metaphysical principle is in dispute. Now obviously, in the bottom line, because my metaphysics is different, you will say that I am doing something immoral. Obviously. I’m not arguing about that. I just want to define philosophically that the dispute is really fought on the metaphysical plane.
[Speaker F] The result—you can’t define it and say that Kush is not a human being, so it’s not a moral question, it’s a metaphysical question.
[Rabbi Michael Abraham] What are you saying? It’s not wordplay. I want to explain.
[Speaker F] Fine, I understand, but I don’t think this dispute changes anything if you call it that.
[Rabbi Michael Abraham] No, it changes a great deal, because then you can understand exactly why the moral dispute is connected to the dispute between left and right. It changes a great deal. If you ignore this distinction, then you don’t understand.
[Speaker K] I don’t think, for example, that Begin in his time would have gone in the direction of the right-wing definition you’re talking about. Obviously he would have.
[Rabbi Michael Abraham] No. Fine, okay. So it may be that Begin wasn’t right-wing. That could be. No, no—
[Speaker K] he was not the right wing of today, that’s true.
[Rabbi Michael Abraham] No, not of today—it has nothing to do with today.
[Speaker E] And according to your approach, why should I stop him by injuring one of his limbs if he currently has a weapon? I can stop him by injuring any of his limbs, right? If someone is threatening me—that’s what the right-wing position says.
[Speaker D] I can grab the hand
[Speaker E] of the—on the principled level that’s true.
[Rabbi Michael Abraham] On the principled level that’s true. But once you have two options—either shoot the one holding the weapon or shoot someone who is not holding a weapon—wait. Now there is also the individual dimension. After all, we talked about the combined model. That means every person wears two hats. There is his hat as a private individual, and his hat as an organ within the collective. I do not subordinate one to the other; I take both into account. So I say: once these two possible courses of action stand before me, I see.