Doubt and Probability—in Halakha, Philosophy, and Beyond—Lesson 38 – Rabbi Michael Abraham

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[Rabbi Michael Abraham] Right. Right. I’ll go back for a moment—I’ll return to the boat case later—but first I want to finish the discussion here. Now what exactly was the claim? My claim was that in a case like the one Maimonides brings in chapter 5 of the Laws of the Foundations of the Torah, law 5—following the Jerusalem Talmud in Terumot, also chapter 5, law 5—where it says that if gentiles besieged a city and said to the community inside the city, “Give us one of you, and if not we’ll kill all of you,” then it says they should all be killed rather than hand him over. Okay? What happens if they single out a specific person—not just “one of you” in general, but a particular person? Even then, it’s also forbidden to do it, even if it’s a specific person. If he was liable to death by the kingdom, then maybe yes, and even then perhaps it would be an act of piety not to hand him over; there’s some additional story there about an act of piety. Now the question that comes up there is this: even in the case where they didn’t point to someone specific—or certainly if they did point to someone specific—why not hand over one of them in order to save the rest? What do you mean? In the end, why don’t you hand him over? Because there is the rule of “be killed rather than transgress” in the case of murder: you’re not allowed to kill him in order to save yourself. “Who says your blood is redder than his?” But as the Kesef Mishneh asks there on the spot, that reasoning of “who says?” is completely irrelevant in a case like this. The reasoning of “who says?” speaks about a case where they threaten me with a gun and say, “Kill so-and-so, and if not we’ll kill”

[Speaker C] “you.”

[Rabbi Michael Abraham] But here, if you do nothing, both of them die—they both die. In such a case I can’t kill so-and-so to save myself, because my blood isn’t redder than his. But in this case the alternative is that both of them die. In the ordinary case it’s either so-and-so dies or I die. So my blood isn’t redder than his. But in this case, if I don’t hand him over, all of us die, including the one whom I would have handed over. All of us die, whereas if I hand him over, he dies anyway, but at least the others will be saved.

[Speaker J] Yes, the example—but what’s the reasoning here? Besides that.

[Rabbi Michael Abraham] Give me a second,

[Speaker J] How does that

[Rabbi Michael Abraham] fit with the example of the Gibeonites and Saul? In just a moment, one second. The example I brought for this was someone standing on the roof of a burning house, okay? Now, sorry, before I get to the example of the roof of a burning house, I’m saying: I claimed that clearly, in such a situation, the reasoning of “who says?” doesn’t apply. Fine—not me; the Kesef Mishneh already says that the reasoning of “who says?” doesn’t apply. So the question returns: then why not? There are all kinds of forced answers there. The Kesef Mishneh invents some idea that the reasoning of “who says?” is not really the basis for “be killed rather than transgress” in the case of murder. Right, exactly.

[Speaker E] It doesn’t seem so; that’s exactly right.

[Rabbi Michael Abraham] Okay, in my opinion that is exactly not right. But never mind, that’s a different discussion. There are all kinds of forced answers there. The Lechem Mishneh says there that this is only in a case where there’s a chance they’ll survive—not certain that they’ll die. Each one squeezes in a different way. I think all these forced answers are unnecessary, because the context of this law is a context of sanctifying God’s name. And in Maimonides, as is well known, the location where a law appears matters. That means you can learn about the nature of a law from the place where Maimonides chose to put it. Now in this case we’re talking about sanctifying God’s name. What does that mean? It means that from the standpoint of the laws of preserving life—murder and preserving life—clearly you can hand over one of them. The reasoning of “who says?” doesn’t exist here. Clearly you can hand over one of them. But what, then? Here, since if you hand over one of them that is a desecration of God’s name, because you are submitting to the demand of the gentiles, then in such a case everyone is obligated to give up his life because of desecration of God’s name—not because of the prohibition of murder. In other words, this is not a law in the laws of murder and preserving life; it is a law in the laws of sanctifying and desecrating God’s name. That’s the claim. By the way, I didn’t invent this; Hanecker proposed this interpretation in an article, and it seems completely correct to me, also from the context of the law in Maimonides. Where is the practical difference? The practical difference is—wait, wait, let me finish the line of thought and then we’ll talk. The practical difference is in a place where, for example, we’re talking about fetal reduction. When in a woman’s womb there are many fetuses—three, four, I don’t know how many—and a situation arises such that clearly all of them will die if we don’t reduce them. Yes, that’s the euphemistic language used in these cases. “Reduce them” means to kill one or two of them and leave the others there so they can survive. Now, if Hanecker is right—or what I suggested earlier—that Maimonides is talking about the laws of desecrating and sanctifying God’s name, not the laws of murder and preserving life, then in the case of the fetuses in the woman’s womb there is no submission to a gentile threat here, right? There it’s not a question in the laws of sanctifying and desecrating God’s name, but in the laws of murder and preserving life. And in the laws of murder and preserving life, yes, you can hand over—indeed you should hand over, not only can—you should hand over the one in order to save the others. So that’s the practical difference. For example, in fetal reduction it is permitted to reduce the fetuses because from the perspective of the laws of preserving life, you can kill someone who in any case would have been killed, in order to save at least the others. Yes, that’s basically the claim. So that’s the practical difference. But for our purposes, what the claim is basically saying is that in the laws of murder and preserving life, clearly you can hand over one of them. That’s really the claim. Now, the question that arises here, of course, is whom? Wait, Rabbi—

[Speaker F] Before that, after all—

[Rabbi Michael Abraham] you want to hand over someone—no, no, let me finish the line of thought because otherwise it’ll just stop the discussion. I want us to keep our heads with this line of thought. So the question is whom to hand over. Okay? And here the question comes up: yes, how do you decide? Anyone you tell, “Hand over him,” will say, “What do you mean? Why is your blood redder than mine?” The question is whom to hand over. So this was argued to me by, I think, Mordechai Halperin also said this to me: fine, I understand the idea that one person has to be handed over, but there’s no one to choose. זיל הכא קמדחלי, זיל הכא קמדחלי—wherever you turn there’s equal pressure. Anyone you want to hand over will tell you, “Hand over yourself—what do you want from me?” So I said to him: what do you mean? Let them draw lots! Let them draw lots, and everything is fine. Once they draw lots, then what happens here? This is where the logic of the lottery comes in. What’s the logic of a lottery in such a situation? There are two kinds of lotteries. I have an article about this; we’ll see whether we get to it or not. But there are two kinds of lotteries in Jewish law. There are lotteries whose job is to reveal truth. For example, the lottery done in the case of Achan—yes, who violated the ban? That’s the question. And there the lottery is meant to reveal the truth. In such a lottery it is obvious that this is not a random matter, not an accidental matter; rather, the assumption is that if you conduct a lottery, the Holy One, blessed be He, will use it. He will guide the lottery so that it falls on the right person. He will help us reveal the truth. There are lotteries in Jewish law whose purpose is not to reveal any truth. For example, if I want to divide a courtyard between two partners or between two brothers who inherited, and I want to know who will get the right side and who the left side, I hold a lottery. Now here there is no truth. It’s not that the right side belongs to someone and I want to clarify to whom. There is no truth at all in that context. So why do they do a lottery there? What is the lottery for? The role of the lottery there is basically that in a place where I can’t divide the—let’s talk about another case for a moment. A courtyard too small to divide. You can’t divide it; each one would be left with a very tiny portion. The father who died left a small courtyard, and now his two sons inherited it together. Now to divide it between them would be a Sodom-like trait—in fact not just a Sodom-like trait but a death sentence of Sodom, because it leaves each one with something tiny that has no use at all. What do you do in such a case? Either buy me out or I’ll buy you out. That is, they do a lottery to determine who gets the—no, that’s not “buy me out or I’ll buy you out.” They do a lottery to determine who gets the courtyard. So what is that lottery doing? In a place where I can’t divide the asset, I divide the chances of winning the asset. That’s all. That is, instead of dividing the gain, I divide the expected gain. But it’s the same thing. In other words, the purpose of the lottery is not to reveal who the true owner is of the right side of the courtyard or the left side of the courtyard. The purpose of the lottery is to keep the division fair. But what can I do? I can’t divide the courtyard itself because it isn’t divisible. So in a place where I can’t divide the courtyard itself, I divide the chances of winning the courtyard. Now in the end only one of them will get the whole courtyard. But both of them had an equal chance of getting that courtyard. In that sense this is still considered a fair division, because I didn’t divide the asset, but I divided the chances of winning the asset. By the same idea, when you divide also between—Is that the actual law? I can’t hear.

[Speaker K] Is that actually the law, that they draw lots?

[Rabbi Michael Abraham] Yes. Now also in division by directions—say the brothers inherit and divide the courtyard into the right side and the left side—again, this is basically a lottery meant to create fairness, so that each one has the same chance of receiving the right side. I can’t give both of them the right side. One will get the right side and one will get the left side. What I can do is give both of them the same chance of receiving the right side. I divide the chances instead of dividing the asset itself. Therefore, the idea of lotteries of the second type is not lotteries whose role is to serve as an instrument of the Holy One, blessed be He, to reveal truth to us; rather, on the contrary, they are lotteries whose purpose is that the Holy One, blessed be He, should not be involved, and it should be as random as possible, as fair as possible. Then I am basically distributing the chances in the most equal way, which is really my goal. Now if that really is the goal, then what I’m doing in the case—I return to the case of Maimonides or the Jerusalem Talmud—where gentiles surround the city and say, “Give us one of you,” setting aside the considerations of sanctifying and desecrating God’s name, from the perspective of the laws of murder and preserving life—from the perspective of the laws of murder and preserving life, I said you should hand over the one in order to save the others. Whom should you hand over? Draw lots. What kind of lottery is it? If the gentiles wanted the person guilty of some crime—the king is looking for him—we could draw lots to clarify which of us is guilty, because everyone denies it. That would be a lottery of the first type. But if the gentiles don’t want that—rather, they just want to kill a Jew, they simply feel like killing a Jew right now—and so they say, “Give us one of you and we’ll kill him, and the rest will be saved,” then we are talking about a lottery of the second type. What does that mean? We can’t have each of us die, say there are ten people there, each one die ten percent. There is no such thing as dying ten percent. Either you die or you live. So instead of dividing the death, I divide the chance of dying. What I do is hold a lottery so that the division of the chance of death will be fair. But it’s the same idea as dividing by directions. And therefore my claim was that in principle they should have drawn lots there, were it not for the considerations of sanctifying and desecrating God’s name, which tell me that it is forbidden to submit to such a threat because that is a desecration of God’s name. But in fetal reduction, or in situations where it is not a threat but some other cause, then in such a situation I claimed that one should draw lots. Now I make the same claim also about Siamese twins. In the case of Siamese twins too, you can’t divide that heart in two. Half a heart and both die. What you can do is divide the chance of receiving the whole heart. Exactly like a courtyard that cannot be divided. If you do a fair lottery, then you divide the heart. How? Because each one has a fifty-percent chance of getting the whole heart. He doesn’t get half a heart; he gets half of the chances of getting the whole heart. But that is the fairness available here: if you can’t divide the heart itself, then let’s divide the chances of getting it. Therefore this is a lottery that is really very similar to the lottery used in partnerships and all sorts of things of that kind. Now, but then people tell me: first of all, we’re talking about children—they can’t agree to a lottery, they can’t be involved—fetuses, not children, babies. Actually not fetuses, but babies. They can’t agree to a lottery. So I said, fine, then the religious court is the guardian of orphans or children, and it will conduct the lottery for them, or the parents will conduct the lottery for them. It doesn’t matter—someone will conduct the lottery for them. Why? Because I have a clear presumption that if I could ask them when they were older, clearly they would agree. Why would they agree? Because the lottery at least gives each of them a fifty-percent chance of staying alive. If you don’t do the lottery, then he certainly dies. So clearly both sides would agree to hold a lottery. Even if they can’t speak now, I assume they would agree to such a thing. Yes, just as the Talmud says in “These Found Objects” regarding returning an object by identifying marks—that even if identifying marks are not Torah-level but only rabbinic, then what permits returning by identifying marks? After all, maybe the object doesn’t belong to the person with the marks, and the real owner would object. So the Talmud says no: owners of lost objects in general would want us to return them by identifying marks, because if we did not return them by identifying marks, then in any case they would not get their object back, since they’d have no way to claim it. If it is returned by identifying marks, they at least have a chance to get it back, even if it isn’t a full chance. So often we make an assessment of what the reasonable person thinks, and with regard to the person standing before us—or not standing before us, but unable to speak—we make the judgment in his place. This is what the reasonable person would want. In this matter, like—here comes the example I started to mention earlier—a person standing on the roof of a burning house. Now he is wondering whether to jump down. If he jumps down, there’s a fifty-percent chance he’ll die—he’ll crash and die—and a fifty-percent chance that somehow he’ll remain alive, break his legs or something, and stay alive. Is he allowed to jump? Or if he wanted to jump? Obviously yes, right? Because if he stays on the roof, he will certainly die. Okay? If he jumps, there’s a fifty-percent chance he dies and a fifty-percent chance he doesn’t, so in jumping he is not killing himself. He is as good as dead anyway. By jumping he gains a fifty-percent chance of remaining alive. And obviously the simple presumption about a person is that he would want that. I have the same presumption regarding the babies. Clearly the babies would want this—if I could ask them, each one would agree to this lottery, because it leaves him a fifty-percent chance of staying alive. This is not a killing lottery; it is a saving lottery, because the alternative—if I did not hold a lottery and I did nothing—both would die. Like with the city besieged by gentiles, both would die. So therefore this lottery is basically the means by which each one gets a fifty-percent chance to live, and therefore they would agree. Now there is a little room for hairsplitting over the question: okay, so we conducted the lottery now, but what permits the killing? Now I am also killing someone. So here I argued that this is not killing at all; it is an act of rescue. When I kill that one person, he was going to die anyway—he is a dead man walking. I am basically saving the other. There are such arguments in the Chazon Ish in several places—sort of straightforward, commonsense arguments, without overly complicated Talmudic analysis—but I think in this context it is simple enough that it is also permitted to perform the operation after the lottery. As long as the lottery was fair and gave equal chances to both sides, certainly one can also carry out the results of the lottery.

[Speaker E] Rabbi, Rabbi, Rabbi. Yes. Okay. First of all, the Rabbi is assuming something that is not agreed on and in my opinion not true: that life is the supreme value and the goal. And therefore we do accounting—better that one should live, or that one should not die—and then the accounting becomes simple arithmetic, and that’s not true. Who said life is the supreme value? Not at all. The content of life and its meaning are what matter. And if we live by killing someone, then all that life is meaningless. So all this accounting and this logical structure just doesn’t hold water.

[Rabbi Michael Abraham] It doesn’t hold water.

[Speaker E] You kill a dead man walking. But you kill a dead man walking, Shmuel.

[Rabbi Michael Abraham] What? You kill a dead man walking. You’re not killing anyone; you’re killing a dead man walking.

[Speaker E] No, in practice, first of all, you shorten his life somewhat—the Rabbi will admit that—even if it’s a minute or a moment or a few months. But suppose—it’s clear that in the twins case you shorten his life; he might survive a few more months. Temporary life.

[Rabbi Michael Abraham] But what?

[Speaker E] Temporary life. Even temporary life matters.

[Rabbi Michael Abraham] True, but against full life, no? I’m saying temporary life versus full life.

[Speaker E] Perhaps. But life that comes by killing someone—someone will come and say…

[Rabbi Michael Abraham] No, this isn’t killing someone; you’re not killing anyone, you’re killing a dead man walking.

[Speaker E] Rabbi Akiva stands up and says, “All my days I was troubled: when will this matter come to my hand?”

[Rabbi Michael Abraham] Better to live temporary life—better to live temporary life.

[Speaker E] Life is not the supreme value if you transgress murder—but there is no transgression of murder here. Since the Rabbi called it that—

[Rabbi Michael Abraham] But in reality you take one child, one baby, whose heart is

[Speaker E] beating and who feels—

[Rabbi Michael Abraham] perfectly fine right now.

[Speaker E] The Rabbi

[Rabbi Michael Abraham] says: no problem, right now—even under anesthesia—we rip out your heart and you die.

[Speaker E] We come along here and the Rabbi says let’s not call it killing, let’s call it rescue, and everything is fine.

[Rabbi Michael Abraham] No, not “let’s call it”; it really is rescue. What do you mean?

[Speaker E] Because you’re killing a dead man walking. He isn’t a dead man walking; he is fully alive right now. No—what do you mean “right now”? He’s going to die in a moment. That’s temporary life. And in temporary life there’s no fear? Same thing with Ben Petora: surely the Rabbi would say there too, he’s a dead man walking. What did I take from him? There’s no discussion at all—Ben Petora is not even understandable. What’s the logic? In the end he dies anyway, so I’m not doing an act of rescue. So what is this semantic move? I don’t understand. What does this have to do with Ben Petora? I don’t understand. There too the Rabbi would say, after all, either both of us die, so he’s already dead. From the perspective of the dead person, that temporary life is meaningless. So obviously I’m not obligated to give it to you; I’ll take it.

[Rabbi Michael Abraham] Not true. But not both of us die—the flask is mine, I’ll drink it and I’ll live. What do you mean?

[Speaker E] No, if both of us drink—right now both of us are with that same flask. If both of us drink, then both of you die.

[Rabbi Michael Abraham] Then both of you die—that’s exactly what Rabbi Akiva says: your life takes precedence.

[Speaker E] Correct, but Ben Petora says otherwise, and Rabbi Akiva is difficult here, and it’s not entirely clear at all.

[Rabbi Michael Abraham] Okay, so it’s difficult—but it is ruled that way in Jewish law, what can I do? It’s not difficult at all; it’s basic.

[Speaker E] Take any case—take any case of comparing the laws of saving life to sanctifying God’s name—it’s also not true. All of life is sanctifying God’s name. All the laws in Maimonides are sanctifying God’s name, and Maimonides says that. And when Maimonides describes sanctifying God’s name there, he’s not speaking only vis-à-vis the gentiles, but also among ourselves.

[Rabbi Michael Abraham] The Rabbi is once again giving wedding-speech homilies here. I’m talking to you now about the laws of sanctifying God’s name, and you’re telling me stories about sanctifying God’s name in life and all those homilies.

[Speaker E] Maimonides says it there.

[Rabbi Michael Abraham] Of course he says it there—so what? What does that prove? So I should die for that? That it’s sanctifying God’s name in a sense that obligates me to die for a life of sanctifying God’s name? Nonsense. Obviously, obviously. You are killed only for the three severe transgressions. That is the sanctifying God’s name for which people are killed—nothing else.

[Speaker E] A life in which you—suppose the gentiles don’t—

[Rabbi Michael Abraham] Only the three severe transgressions, that’s it. All the rest of life is sanctifying God’s name, but one is not killed for it.

[Speaker E] The gentiles come and say, “Hand over one and we’ll save the rest of you.” If we go and take a person and hand him over, that empties all Jewish life of meaning, and all Maimonides’ laws are irrelevant here.

[Rabbi Michael Abraham] But right—that’s what Maimonides says, and I agree.

[Speaker E] Not because of sanctifying God’s name vis-à-vis the gentiles—it’s not about the gentiles here; it’s also among ourselves.

[Rabbi Michael Abraham] Fine, okay, so we disagree.

[Speaker A] No, but what does that have to do with it? We were talking about something else. Okay, you’ve now gotten into an argument that isn’t related to the actual issue we were discussing. Here we’re talking about saving one person by means of an operation. Shmuel, you’re talking in more value-laden terms about another issue, but from the standpoint of probability and doubt and legal probability, in order to save a person, can we divide or not? And the Rabbi says we can divide, and gives reasons for it.

[Rabbi Michael Abraham] This isn’t—

[Speaker A] connected now to what we set up as the highest value; it’s not connected to value at all. Not “can”—“must.” Yes, you have to divide, and he gives reasons for that. Certainly yes. What Maimonides says—not, no, no, no, not technology. What Maimonides says—if the whole of Jewish law is morality, then—

[Speaker E] Of course it contradicts morality.

[Speaker A] But it—

[Rabbi Michael Abraham] It does not contradict morality at all. It really does not contradict morality. And I also think Jewish law is not morality, but that’s another disagreement we have. But here we don’t need to get into that disagreement, because this does not contradict morality at all; it’s exactly what morality says. But fine, we can repeat ourselves.

[Speaker A] No, in principle this also happens when there are several children. Shmuel, as a doctor you should know this: when there are several children in their mother’s womb and when there are—

[Speaker E] They are still not considered full living beings; you have to start from some point, they still aren’t.

[Speaker A] Yes, but that child who is considered the weakest and parasitic, who may drain life from the second child—him they don’t leave alive. It’s a medical situation.

[Speaker E] So why from the moment they’re born, from the moment they come out—

[Rabbi Michael Abraham] of their mother’s womb, then Jewish law no longer. In fetal reduction the decisors usually justify the permission on the grounds that these are fetuses. Exactly. And I claim that even with living babies there is permission. As long as this is not a desecration of God’s name but only a matter of the laws of murder and preserving life, then even with living babies one should draw lots and send one to his death in order to save the rest—and that is the case of Siamese twins. In the case where they—

[Speaker E] are equal, this whole reality of one over the other, this whole recurring refrain of one giving up his life for the other, is basically not logical.

[Rabbi Michael Abraham] Giving up his life for the other when he is going to die anyway. For what? What sacrifice? Just in order to stay with him? A life of meaning that sends two people to their death—is that a meaningful life? That is the stupidest meaning I can think of. What exactly are we talking about? There is no prohibition of murder here at all. You are killing a person who is going to die anyway, and at least the other one will be saved.

[Speaker E] We are all destined to die. By the way, Maimonides says this in the Laws of Repentance: all of us live temporary life. Every person in the world lives temporary life. The question is what he will do with that life. It is a life of a moment compared to eternity. And you are going to sacrifice all of life—one moment—

[Speaker D] We’re getting here—they still haven’t gotten yet to the homiletical world. This isn’t homiletics at all, Rabbi; this is the essence. Fine, maybe, maybe we should continue. Okay, maybe let’s continue.

[Speaker K] What the Rabbi said—wait, wait—what the Rabbi said, first of all, is a very, very great novelty. I think that according to the exposition of Ben Petora there, the one who disagrees with Rabbi Akiva and does not expound וחי אחיך עמך (“and your brother shall live with you”) to mean that your life takes precedence, then basically we say that it is better that both of them die, right?

[Rabbi Michael Abraham] Yes, but you can explain that in many ways.

[Speaker K] Meaning that without the exposition that your life takes precedence, I explain it—

[Rabbi Michael Abraham] as a situation in which there is no ownership, because it’s a prohibition of theft, and the prohibition of theft is set aside in the face of saving life, or something like that. Okay?

[Speaker K] Why is the prohibition of theft set aside?

[Rabbi Michael Abraham] Why is the prohibition of theft set aside?

[Speaker K] I didn’t understand. Yes, so if both of them die according to Ben Petora, who doesn’t expound that rule that your life takes precedence, then he says it’s better that both die because I have no reason to prefer one over the other. Okay.

[Rabbi Michael Abraham] So I see—

[Speaker K] and there is an owner of the flask.

[Rabbi Michael Abraham] Why doesn’t the owner of the flask take precedence? So he says because ownership is nullified in such a situation.

[Speaker K] Fine, right.

[Rabbi Michael Abraham] Fine, so what?

[Speaker K] So we see that even in a case where two will die, we also say that it’s better that two die, because if we have no reason to prefer one person, it’s better that two die than that one die. Fine—that’s Ben Petora. So what? I didn’t understand. So I said: Ben Petora says both should die. Correct, but even Rabbi Akiva, who disagrees—that is only where there is a specific person, you versus the other, but where it’s two other people—then if there’s no priority, then it’s better that both die…

[Speaker E] If the flask belongs to both of them—that’s what the Rabbi means.

[Speaker K] If the flask is in the possession of both of them. Right.

[Speaker E] And I—

[Rabbi Michael Abraham] claim that one should draw lots and take the flask.

[Speaker K] But from the Talmud it sounds like without that exposition of וחי אחיך עמך, that your life takes precedence, we say that it’s better that both die.

[Rabbi Michael Abraham] No, I claim that Rabbi Akiva would also say in such a situation to draw lots.

[Speaker E] Then why didn’t the Talmud mention the more novel case?

[Rabbi Michael Abraham] It wasn’t dealing with that.

[Speaker E] No, but he’s asking a very good question. It should have said that—even if the flask is in both their hands…

[Rabbi Michael Abraham] So it didn’t say it. What do you want? If it had said it, you would ask why it spoke about that. It chose what to speak about. I don’t see the great difficulty. Fine, let’s move on.

[Speaker K] In general, this law of a lottery—let’s say it everywhere, in every case of doubt—after all, there is the rule of “what did you see?” In every place where we have two doubts and we don’t know… No, in every place where it’s symmetric.

[Rabbi Michael Abraham] In every place where the situation is symmetric, you decide it by a lottery. When the life is mine, I don’t draw lots with you.

[Speaker K] Yes, no—I’m asking about completely different cases. For example, there is a law that if forbidden food got mixed with permitted food, and we don’t know which is the permitted one and which is the forbidden one—

[Rabbi Michael Abraham] That’s not relevant. Because there you want to know what is forbidden.

[Speaker K] It’s a lottery whose role is to clarify the truth. This is not a lottery of the second type.

[Speaker K] It’s not relevant to the issue at all. Rabbinically there is a rule that we can attribute, but when we have two equal things we do not attribute because of “what did you see?” like in the case of the two paths there. The story of the two paths is where we say “what did you see?”

[Rabbi Michael Abraham] Again: if there is a symmetric situation, we decide it by lottery. If it is not symmetric, we don’t draw lots. Why should we draw lots? I don’t understand.

[Speaker K] So I’m saying that even in a situation of symmetry we never say to draw lots. There are many cases in Jewish law, because we see in many places in Jewish law—this is brought up a lot regarding issues like the two paths and two people washed away… What does the two paths have to do with it?

[Rabbi Michael Abraham] Good grief.

[Speaker K] In the case of the two paths, one of them has impurity.

[Rabbi Michael Abraham] In one of the paths there is impurity. You need to know in which of the paths there was impurity. Do you want to draw lots to determine in which of the paths—

[Speaker K] No, I’m talking about two people who walked on the two paths. Okay, fine? Yes. One went on the impure path and one on the pure path. We don’t know who. Okay. So we have two people.

[Rabbi Michael Abraham] Correct. So we say it is impossible to permit—

[Speaker A] both of them, because one of them is certainly impure. Right.

[Rabbi Michael Abraham] But which one should we declare impure?

[Speaker K] We can’t choose one specific person because of “what did you see?”

[Rabbi Michael Abraham] Correct. But because one of them really is impure, how is a lottery relevant here?

[Speaker A] What does a lottery have to do with this? What does a lottery have to do with this?

[Rabbi Michael Abraham] Excuse me, how would a lottery help here? A lottery cannot prefer one for us. Fine, let’s move on for a moment. So the claim basically, in the end, in my opinion at least, there is no doubt about it—I really am convinced of this—that one should draw lots in these situations. Now, one claim that came up at the end—again Mordechai Halperin said to me: yes, but the decisors say there is no permission to draw lots over life. We do not draw lots over life. Where do we know this interesting secret from? The source usually brought is Sefer Hasidim. Sefer Hasidim writes in section 761—I’ll share it for a moment. Here it is. “People in a ship, and there was a storm wind, are not permitted to cast lots, so that if the lot falls on one of them he should be thrown into the sea. One should not do this as they did to Jonah son of Amittai. If even reliance on a mere contingency does not acquire in monetary matters, all the more so in matters of life, that they should not rely on the lot. And regarding what is written, ‘And Saul said: cast the lot between me and Jonathan my son, and Jonathan was taken’—there there was the ark, and ‘every judgment is from the Lord,’ and they knew in what way to cast lots. But now one should not rely on a lot, as it says, ‘And I will cast lots for you here before the Lord our God.’ And even in monetary matters one casts lots only when dividing equally, but one does not place two portions against one portion unless they are equal…” Not important right now. In any event, there are rules that the lottery must be symmetric and fair. Okay, which, incidentally, I think itself—

[Speaker A] I don’t understand the two qualifications, by the way.

[Rabbi Michael Abraham] Well. So what?

[Speaker A] Two qualifications—that’s a complete lottery.

[Rabbi Michael Abraham] Right, so what? I didn’t understand. Yes, when they divide equally. You hold a lottery when they divide equally, when they are equal in height, weight, and value—that’s right, the Mishnah says so there—then you hold a lottery. Meaning, even when you already conduct a lottery, you do so only when the chances are equal, when it is fair. Incidentally, if one really understood the lottery as the rod of the Holy One, blessed be He—through which He tells us what the truth is—then it seems to me there would be no necessity at all for it to be equal and fair. What difference does it make? In any event, the Holy One, blessed be He, will determine the result of the lottery. All these legal requirements—and they recur elsewhere too—all these legal requirements that the lottery must be fair specifically hint that there is no divine involvement here. But that’s only a side remark. In any event, here in Sefer Hasidim it seemingly says—and many decisors bring it this way—that there is no permission to draw lots over lives. We do not draw lots over lives.

[Speaker K] Yes, but this is different. Why? Because here it’s just a matter of deciding between two cases where in any case they’ll die, and it only serves to resolve “what did you see?” No, I didn’t understand. Here they’ll die anyway.

[Rabbi Michael Abraham] In the ship case, you mean?

[Speaker K] No, not in the ship—here, in the case the Rabbi spoke about. Okay, in the first case, where they are going to kill two people, there one can cast lots.

[Rabbi Michael Abraham] But in the ship too everyone will die, I don’t understand. In the ship everyone will die, and you draw lots in order to throw one overboard so that the rest will be saved.

[Speaker A] By the way, can I ask a question about that?

[Speaker E] Why didn’t the Rabbi accept Sefer Hasidim?

[Rabbi Michael Abraham] Wait a second, in just a moment. Yes.

[Speaker A] I want to ask a very fundamental question in general regarding legal statements from various books: on what basis do we accept rulings—

[Rabbi Michael Abraham] No, no, don’t ask me that question—I agree with you, okay? Never mind. The decisors bring Sefer Hasidim as a source. I completely agree with you that if my reasoning says otherwise, then it would really not bother me that Sefer Hasidim says such a thing. But on the other hand, it was clear to me that this couldn’t be right, and for some reason many decisors—later I saw that Rabbi Ovadia also comments on this in one of his responsa—there is another section in Sefer Hasidim where it says the opposite. “People traveling by sea, and a storm wind arose against them to break the ship or sink it in the sea, while the other ships pass safely—it is known that there is someone on the ship who is liable. And they are permitted to cast lots, and on whomever the lot falls three times in succession, they are permitted to throw him into the sea. And they pray that it should not fall on the innocent but on the guilty, as it says…” and so on, “Lord God of Israel, grant innocence,” “and the lot fell on Jonah.” So the question is: how does one deal with the contradiction against section 761, which we read above? There too he says not to do as they did to Jonah in the ship, and here he brings the case of Jonah in the ship as the source that one may draw lots. Now when you look at these two sections a little more carefully, you see that Sefer Hasidim is actually excellent evidence for what I’m saying. Why? Because in these two places Sefer Hasidim is talking about different cases. Notice what case it deals with here: “People traveling by sea, and a storm wind arose against them to break the ship or sink it in the sea, while the other ships pass safely.” What does that mean? This is based on a midrash, a midrash on the book of Jonah, which explains that the storm at sea struck only Jonah’s ship. Around it there were other ships sailing peacefully on calm waters. Okay? It attacked only that ship. In the case discussed above in section 761: “People in a ship, and there was a storm wind”—there is nothing there about other ships without storms; there was a storm on the ship. That is a completely different case. Why is it a different case? Because in the first case there is really no logic in throwing someone overboard, because there is no reason to assume that there is someone on the ship because of whom the storm came. Meaning, even if you throw him overboard, who says it will help?

[Speaker H] So therefore there is no logic—

[Rabbi Michael Abraham] in drawing lots and throwing someone into the sea. On the other hand, if you say that there is a storm at sea that strikes only this ship while all the other ships travel safely, that is a sign that from Heaven there is someone here who is liable to death. And since that is so, one may draw lots to find who that person is who is liable to death. And why here? Because there is a chance that this will actually save the ship, for the whole storm is only on his account. In a place where the lottery can bring rescue, then yes, one draws lots over lives. You do not draw lots over lives in a place where the lottery is irrelevant—it won’t help. There is no prohibition against drawing lots over lives. There is a prohibition against drawing an unnecessary lottery and simply throwing a person into the sea. But if there is a lottery that can save someone, then certainly we conduct a lottery. Why not conduct a lottery? And therefore I think that even if we were to regard Sefer Hasidim as a binding source—and in Sefer Hasidim itself it says that one may draw lots over lives—but what then? Do it in the place where it is relevant, where the lottery will actually bring rescue. Not in a place where, on your own whim, you decided there is probably someone on the ship who is liable to death, and you hold a lottery and count on the fact that this lottery will identify the person liable to death and save everyone. There is no basis at all for such an assumption. Then don’t conduct a lottery.

[Speaker K] What’s novel about that? That’s obvious.

[Rabbi Michael Abraham] The novelty is that one does not engage in metaphysical speculation. In the eyes of many people that could definitely be a very great novelty, because people think that when there is a storm at sea, then obviously the Holy One, blessed be He, is looking for someone on the ship—because after all everything comes from Him. This notion that everything comes from Him—take it one not-very-large step further, and it really does mean: okay, so apparently there is someone on the ship whom the Holy One, blessed be He, wants to drown; so let’s draw lots, throw him overboard, and at least we’ll be saved. I think in the eyes of many people that would be a very great novelty indeed. And the novelty is that this storm was not caused by the Holy One, blessed be He, and it isn’t because someone on the ship is liable to death or anything like that. Storms happen—that is the way of the world. So therefore I think one cannot derive such a principle from Sefer Hasidim. I’ll say more than that: I don’t understand—even if Sefer Hasidim said it, and suppose Sefer Hasidim were Maimonides and the Shulchan Arukh combined, with full legal authority, wonderful—what is the source of this prohibition? There is no prohibition against drawing lots over lives. Common sense.

[Speaker E] Common sense is intuition, a basic emotion.

[Rabbi Michael Abraham] Okay, fine, maybe a basic emotion. Intuition—not at all. But fine, okay, apparently our intuitions differ. In any event, the claim in the end is that yes, one can and one can, and therefore in my opinion one should also draw lots over lives. Now the claim—and therefore I also say that even in theocratic—

[Speaker K] Couldn’t it be that there it’s different entirely, because there we’re talking about a deciding lottery?

[Rabbi Michael Abraham] Right, so what?

[Speaker K] Meaning a lottery that clarifies for us who that person is whom the Holy One, blessed be He, wants to kill. So what? The Rabbi isn’t talking about that. Because there, there is some specific person whom the Creator wants to kill, and we supposedly need to help Him kill that person. What’s more, because we need to help—

[Rabbi Michael Abraham] help the Holy One, blessed be He?

[Speaker K] Yes. That’s what it says in Sefer Hasidim. I understand the difficulty, but that’s what it says there. That’s what it says there. It says that the role of the lottery is to determine who the person is because of whom the storm was caused. No, it’s clear that that is the role of the lottery,

[Rabbi Michael Abraham] But the permission to hold a lottery doesn’t depend on its role. You could also have held a lottery of the second type.

[Speaker K] It’s as if the lottery determines who the doomed person is, the one who has to be killed.

[Rabbi Michael Abraham] And again, you’re explaining to me that there’s a difference between types of lotteries, but I opened with that distinction. I agree with that distinction. My only claim is that, regarding the permission to hold a lottery, there’s no reason at all to distinguish between the two types. What’s the difference? If it’s permitted to hold a lottery because it will save lives, then you can hold a lottery of the first type and of the second type as well. What’s the difference?

[Speaker E] Exactly the same thing. In general, Rabbi, just a broader kind of question, a question about the reason. If God really wanted to kill Jonah and the whole thing was divine intent, then He’ll kill dozens, maybe hundreds, of innocent people in order to kill one person, and that’s okay?

[Rabbi Michael Abraham] No, no, I didn’t understand. So no—He was counting on them making a lottery and throwing him into the sea.

[Speaker E] No, He was counting on our making a lottery?

[Rabbi Michael Abraham] Apparently. He doesn’t need to count on it. If He does everything, then He also caused us to make the lottery, not only caused the ship and the storm. Meaning, He does everything. So with that you can get anywhere you want. In short, don’t ask me to defend positions that I don’t agree with. That’s not good.

[Speaker A] Rabbi, do you remember Schwarzkopf? What? Schwarzkopf—do you remember the general?

[Rabbi Michael Abraham] The general? And what about him?

[Speaker A] That they asked him about Saddam Hussein, right?

[Rabbi Michael Abraham] No, no, I didn’t understand.

[Speaker A] That he should be forgiven, that the Holy One, blessed be He, should deal with him. So he said: our role is to help the Holy One, blessed be He, meet him.

[Rabbi Michael Abraham] I know a different version. I mentioned it, I think—that those guys want to receive seventy-two virgins in heaven, and our job is to help them get that as quickly as possible. Okay, same idea. With matchmaking. With matchmaking. Yes, exactly. Anyway, so now I’m going back to the discussion of the ship. That was just a remark about the role of lotteries in Jewish law, and whether you can hold a lottery over life and death or not. As for the ship—if we return there now—then really the conclusion is that, in principle, what should have been done was indeed a lottery. Meaning, the demand made of the person to hold a lottery is a justified demand. Except that one question remains: why is this natural lottery, which made me stronger, not a legitimate lottery? That’s really the question we asked earlier. So maybe I want to open with a certain reflection. Suppose I’m standing before this dilemma—and this is always a useful lesson: before immediately looking for answers, first stop and ask what the meaning of the question is. What does this question actually mean? Suppose I couldn’t find an answer. Okay, I have no explanation. What would I have been supposed to do in such a situation? Yes, like with paradoxes. What would I have been supposed to do in such a situation? On the face of it, there’s some consideration that sounds reasonable—I can’t quite put my finger on what is unreasonable about it, let’s put it that way—which says that there was a lottery here, and therefore that person who threw the people into the sea acted properly. And on the other hand, intuition recoils from this. Intuition says that something here is unfair, that it was wrong to act in that way. When we have a dilemma between a logical consideration and intuition, that’s actually the case in very many kinds of paradoxes. And here there’s a dilemma—we spoke about this, now I remember where we spoke about it. We spoke about it when we discussed statistical proofs in court, right? Remember, with the prisoners in the courtyard and all sorts of things like that? There we discussed the question: assuming we find no explanation at all for why one should not convict a person on the basis of statistical proof—but our intuition tells us that that is right, that we do not convict on the basis of statistical proof—what would we do in practice? Would we say: fine, then intuition misleads us, because in fact we have a logical consideration that says yes, we should rely on these proofs? Yes, a one-in-a-hundred proof is better than the probability that witnesses are mistaken in what they saw, and yet eyewitnesses we do rely on. So there I spoke a bit about this issue: what do we do when we face the dilemma itself? On the one hand we have a logical consideration; on the other hand intuition says that the conclusion is incorrect. That’s a kind of paradox, really. So in such a situation, I have no general recipe, and it’s a matter of judgment. Meaning, the question is: what is the likelihood that there really is a bug in the logical argument that I haven’t noticed, as against the likelihood that—yes, I had an intuition, but it’s apparently not correct; here is a logical consideration showing that this intuition is wrong, and we should follow it. Therefore this is a question I don’t know how to answer. I’m only saying that, practically speaking, if I hadn’t found a solution, it’s an interesting question what we would actually do.

[Speaker J] There too it can be solved very easily, because statistically there are lots of logical arguments that were proven wrong—whether it’s Kant, whom the Rabbi himself has refuted several times, and many other logical structures that were refuted—which means that the chance here that the logical argument is not correct… intuitions were never shown

[Rabbi Michael Abraham] to you not to be wrong?

[Speaker J] Yes, but there’s at least a ten percent chance that this logical structure is not correct.

[Rabbi Michael Abraham] And what’s the chance that an intuition is incorrect?

[Speaker J] There’s also a chance. I don’t know what percentage it is, but… Right, but I don’t know. What the Rabbi says is true, that intuition also is not necessarily correct, but since logic may be incorrect, that means I don’t have a certain proof here. Even if I have a logical argument, I still don’t

[Rabbi Michael Abraham] necessarily get to say that the intuition is wrong. There is no certain proof here, and not there either. But I still take logical considerations seriously; I don’t throw logical considerations in the trash in a place where my intuition does not recoil from them, right? A logical consideration has weight, even though I sometimes make mistakes in logical reasoning. So that remains.

[Speaker J] That’s true as long as we’re proceeding probabilistically. Then arguments that fit with our intuition have a much higher probability of being correct than arguments that completely contradict intuition, which in the end statistically will be refuted.

[Rabbi Michael Abraham] Obviously, but that’s not the relevant comparison. Zeno’s arguments—that’s the question here. You’re making a comparison between arguments that fit intuition and arguments that oppose intuition; that’s obvious. Arguments that fit intuition are more likely to be correct. But here the dilemma is different: I have an argument that does not fit intuition, versus intuition itself—not versus an argument that does fit intuition, but versus intuition itself. So I don’t know how you decide between them.

[Speaker J] I don’t need to decide between the two. I decide through passive omission as long as I have no certainty. I don’t necessarily decide in favor of intuition, just as I don’t kill someone on the basis of an argument that is not certain.

[Rabbi Michael Abraham] Fine, I’m not arguing with that. Fine. In short, what I’m saying—so I made that remark. Next time I’ll propose the solutions. Basically, you were circling around them in the previous comments; I just want to formulate it in a more orderly way, and with that—and then we’ll move on to the last part of this series. Okay, that’s it for now. Any comments or questions? Okay, Sabbath peace, goodbye. Thank you very much, Sabbath peace.