Uncertainty and Statistics – Lecture 20

Table of Contents

• [0:00] The Liverpool ship and pushing people into the water
• [2:02] Mertzbach – the claim about a natural lottery
• [3:22] The example of “whoever is stronger prevails”
• [5:03] Critique of the interpretation of “whoever is stronger prevails”
• [8:08] Lotteries as a fair solution
• [10:29] A courtyard that cannot be divided and a lottery
• [16:02] A lottery as revealing the will of God
• [17:24] The Entebbe story and a lottery
• [24:56] The rope analogy and dependence
• [25:57] The heart case in Siamese twins
• [29:40] A lottery over the heart – a fifty-fifty chance for each
• [30:40] Sefer Hasidim and the prohibition on drawing lots over lives
• [32:00] The prohibition of “do not practice divination” and its connection to lotteries
• [34:23] Dividing chances instead of dividing property
• [35:23] The timing of the lottery – before or after?
• [39:49] The role of intuition in a logical dispute
• [44:27] Personal identity – genetics as part of the person
• [53:31] The boat and a lottery over physical condition
• [56:27] A lottery by names – resh versus shin

Summary

General overview

The lecture returns to the case of “the ship from Liverpool,” where a person pushed others into the water in order to save those who remained, and formulates the defense claim as though this were a kind of natural “lottery,” in which the stronger person got to survive. The speaker rejects the attempt to justify brute force as a legitimate lottery, distinguishes between different kinds of lotteries in Jewish law and in morality, and insists that the moral intuition against a “genetic lottery” deserves respect but also requires a principled formulation explaining why it is invalid. He moves toward a solution according to which the main problem is an “ad hoc lottery” tailored after the fact to the desired outcome, and concludes with distinctions between an act of rescue and an act of killing, along with implications for parallel cases such as a canteen of water, Siamese twins, and handing over individuals to save the many.

The ship from Liverpool and Siamese twins

The speaker presents a situation in which there is not enough room in lifeboats for everyone, one person pushes others into the water, and the pusher argues that otherwise everyone would drown, so the death of a minority saves the majority. He compares this to separation surgery in Siamese twins in which one will die and the other will be saved, and says that in his view such surgery is not merely permitted but obligatory, because one of them “would die anyway” if they were not separated. He presents the counterclaim that even if one must choose who will die, one may not choose arbitrarily, and therefore what is needed is a “fair lottery,” not a decision by the stronger party or by the one saving himself.

The claim of a “genetic lottery” and its critique

Eli Mertzbach is cited as suggesting that the lottery has already been carried out by nature, because whoever is stronger was “chosen by lot” to be stronger, and therefore pushing someone into the water is merely implementing a natural lottery. The speaker describes this claim as intuitively outrageous, yet not easy to explain immediately what exactly is flawed about it, and he presents this as the central question: why a “natural lottery” is not a substitute for an artificial lottery like a coin toss or dice. He sharpens the point that the parties’ consent is not a necessary condition for a fair lottery in a rescue situation, because even if one person refuses a fair lottery, that does not obligate the other to die together with him.

“Whoever is stronger prevails” in Bava Batra and the Rosh’s interpretation

The speaker cites the Talmud in tractate Bava Batra 34 concerning a dispute over ownership of a ship in the river and the rule “whoever is stronger prevails,” and presents Mertzbach as seeing this as a source for the idea that force is a “natural lottery.” He argues that if force were a halakhic substitute for lotteries, then it should replace all lotteries in Jewish law, such as the division of the Land, the priestly lottery, or the division of a courtyard between partners, which seems absurd. He brings the Rosh’s interpretation, according to which “whoever is stronger prevails” is intended to clarify who the true owner is, because the one to whom it really belongs will struggle more forcefully, so this is a procedure for clarifying the truth, not a mechanism for dividing chances; and therefore it cannot be compared to rescue cases in which there is no “true owner” of life.

Two kinds of lotteries: revealing versus deciding

The speaker distinguishes between a “revealing lottery,” whose purpose is to clarify one existing truth, and a “deciding lottery,” whose purpose is to arrive at a fair solution when there is no right answer and the matter cannot be divided. He illustrates this with a courtyard that has no law of division, where it makes no sense to divide the land itself, and so instead one divides the chances of winning the property, defining the chance itself as an asset, similar to buying a lottery ticket. He objects to applying the idea of a “lottery that reveals the will of God” to deciding lotteries, and argues that if every result is in any case the will of God, then there is no point in demanding a fair lottery or preferring a fair coin over an unfair one.

Critique of the “will of God” conception of lotteries and Havot Yair

The speaker points to a difficulty in the claim that lotteries are “the staff in the hand of the Holy One, blessed be He,” and mentions Havot Yair, who insists that the coin must be fair, and asks why fairness is required if the Holy One, blessed be He, can tilt any result. He cites a little saying from Rabbi Shach about the Entebbe operation: opposition based on a small probability is not refuted by the fact that the operation succeeded, because even ten percent “comes true” in some cases, and therefore success is not proof. He uses this to argue that an unfair coin that lands on the rare side is not a “manifest miracle,” and concludes that there is no logic in demanding fairness of the coin if the lottery is viewed as direct heavenly guidance.

“Whoever is stronger prevails” as judicial withdrawal, not as law

The speaker presents an inquiry among later authorities (Acharonim) as to whether “whoever is stronger prevails” is a ruling of the religious court or the court’s withdrawal due to inability to decide, and explains a practical implication regarding the stability of the winner’s possession: if it is a ruling, the other side has no right to come back and seize it; if it is a withdrawal, the struggle can continue. He argues that even if one does not follow the Rosh, this still should not be understood as a genetic lottery, but rather as an expression of the fact that the religious court is not saying what to do, and even “go fight it out” is a metaphor that leaves the parties with various options, such as division, sale, or a lottery.

Extreme examples: a rope, paratroopers, mountain climbers, and symmetrical Siamese twins

The speaker gives a comic-book-style example in which one person is holding a rope and another is hanging from it, and a situation in which a lottery cannot be carried out because the upper person cannot “choose” himself to die instead of the other. He adds a story from Philadelphia in 1976 about Siamese twins among religious Jews, in which the parents turned to Rabbi Moshe Feinstein and the doctors to a priest, and he describes how the considerations and analogies used by both were similar, including paratroopers and mountain climbers in which two people are hanging on a means of rescue that cannot support both of them. He emphasizes that what interests him is specifically a symmetrical case in which there is no clear natural ownership of the shared organ, and he argues that in symmetry the obvious solution is a lottery that divides chances for life rather than “dividing” something that cannot be divided.

Sefer Hasidim, “do not practice divination,” and the mistake in attributing a prohibition to a lottery over lives

The speaker describes a claim raised against him in the name of Sefer Hasidim, saying that it forbids drawing lots over lives, and notes that it can be shown that this is not what it says there. He analyzes that the connection to the prohibition “do not practice divination” belongs, if at all, to revealing lotteries that try to determine truth through randomness and metaphysics, not to deciding lotteries whose purpose is the fair division of chances when there is no other solution. He argues that applying “do not practice divination” to a deciding lottery is “nonsense,” based on the mistaken assumption that deciding lotteries also come to reveal the will of God.

Methodology: moral intuition versus rational argument

The speaker describes a dilemma between an intuition that feels that force is not a fair lottery and a rational analogy claiming that there is no difference between one kind of lottery and another. He rejects two simplistic responses—both throwing out the intuition and throwing out the reasoning—and chooses instead to give intuition “respect” as a trigger for searching for an explanation that connects it to other intuitions and creates coherence. He acknowledges that even a moral explanation ultimately rests on intuitions, but argues that there is value in a formulation that strengthens a whole web of considerations.

Attempts at explanation: timing, personal identity, and external randomness

The speaker first proposes an explanation based on “timing,” according to which the lottery should be conducted after the need arises and not at birth, but rejects this by means of an example of a lottery held before boarding the ship, when it is already known in advance that the number of lifeboats will not be enough. He examines an explanation based on personal identity, according to which genetics is the person himself and therefore is not an “instrument” for a lottery between people, and compares this to the discussion of “wrongful life,” in which a person cannot sue over his very existence because without the act he would not have existed as a plaintiff. He shows that this explanation alone is insufficient, because one can formulate similar cases of external “luck,” such as one’s position in the boat, where there is still a sense of unfairness about deciding by force.

The distinction between force as implementing a result and force as the criterion of decision

The speaker gives an example in which a decision is made according to the letters of a person’s name, and clarifies that force can be legitimate when it is only a means of enforcing the result of a fair lottery, such as pushing into the water the person who lost the coin toss. He argues that the problem on the Liverpool ship is that force is not merely enforcement of the result, but becomes the criterion itself, replacing the lottery. He emphasizes that using force after a fair lottery is different from defining force itself as the lottery.

“An ad hoc lottery” as the main explanation for rejecting the “genetic lottery”

The speaker advances the argument that deciding on the basis of genetics or strength is an “ad hoc lottery,” because one could just as easily have established the opposite rule, according to which דווקא the weak remain and the strong are thrown overboard, and the choice of the rule is made according to whoever benefits from it. He argues that when the stronger side chooses the criterion that justifies its own survival after it is already known who will benefit, this is not a genuine division of chances but rather tailoring the mechanism to the result, and therefore it is not a lottery. He states that this point turns the “genetic lottery” claim into a conceptual mistake, and says he will develop this further in the next lecture.

Closing questions: genetic engineering, the instinct of self-preservation, positive action and passive omission, and a canteen of water

The speaker is asked about “wrongful life” even in a case of deliberate genetic engineering, and replies that the child still cannot be a tort plaintiff because without the act that same person would not have existed, though there may be moral claims or even a criminal route on the part of the state. He distinguishes between an instinctive act that perhaps is not actionable and a principled discussion of responsibility, and emphasizes the difference between saving oneself through cleverness or position and actively pushing someone, which is defined as murder. In the name of the Hazon Ish, he cites a distinction between an action that is inherently defined as an act of rescue and an action that is inherently defined as an act of killing, and compares this to the question of a canteen of water, in which taking hold of the canteen for one’s own survival is perceived as an act of rescue and not as killing. He concludes by addressing the question of handing over individuals to save the many, and cites Maimonides, Laws of the Foundations of the Torah, chapter 5, law 5, based on the Jerusalem Talmud, Terumot, presenting the prohibition there as based on desecration of God’s name, even though from the standpoint of saving lives one might have thought otherwise.

Last time we started discussing the problem of the ship from Liverpool. Right, an American ship sailed from Liverpool, hit some iceberg, broke apart, and the people got into the lifeboats. Now, since there were too many people for the boats—that is, there wasn’t enough room for everyone in the boats—someone pushed a few people into the water, they died, and the rest were saved. And then in the end—meaning, when they reached shore—they put this fellow on trial. They said to him, “Why did you push them?” So he said, “Because otherwise all of us would have drowned. What, is it better that all of us drown? Those who drowned would have drowned anyway, but at least the others were saved.”

I connected this to the example of Siamese twins, right, where I perform a separation surgery and send one of them to die, and I give the shared organ to the other so he can live. And halakhic decisors usually forbid that, as I mentioned. And I think this is not only permitted but obligatory—to do the separation surgery—because that one whom I’m sending to die would have died anyway. Meaning, if I didn’t do it then both of them would die, so at least this way I send one to die but the other will be saved.

But then the objection was raised against him, against that man on the ship: “Fine, but why are you pushing them? Make a fair lottery among everyone, and whoever comes out can be pushed. But you can’t decide on your own to push the other person and keep yourself there.” Exactly as with Siamese twins: I can’t decide to perform a separation surgery, give the heart to one and leave the other to die. I need to make a lottery between them, and that will determine who gets the heart and who is going to die, because there has to be some fairness here. And therefore the charge against that man on the ship was: “Why didn’t you make a lottery?”

Now one of the explanations Eli Merzbach gives in his book for why there is no need to make a lottery here is that in fact a lottery was made. Genetics is the lottery. Meaning, I came out stronger than they were, and I pushed them into the water, so that genetics, by which I happened to be stronger, is also a kind of lottery. Why does a lottery have to be by dice specifically? I can make a lottery on the basis of any other parameter; in this case, the parameter is who is stronger. And therefore his claim was: “Basically I did make a lottery—what do you want from me?”

But the basic feeling when you hear a claim like that is that it’s outrageous. Something here doesn’t seem reasonable, doesn’t seem proper, doesn’t seem ethical. But when you think a bit about how to explain it—meaning, what exactly is the problem here—fine, there was a lottery, only we didn’t do it with dice, it happened through some other natural process, so what? What difference does it make? So it’s really not so simple to explain. What exactly is wrong with this argument about a natural lottery? That’s what I explained last time. That’s really the question I want to deal with.

Now, one of the examples that came up there in the discussion—that is, in the exchange between Yuzvitz and Merzbach—was “whoever is stronger prevails.” What happens? I see a ship floating in the river, and two people on the shore are arguing about whom it belongs to. Each one says the ship belongs to him. The rule is, in the Talmud in Bava Batra 34, the rule is: “whoever is stronger prevails.” Let them fight; whoever wins takes the ship.

Eli Merzbach says, “Here we have an example. What do you mean? What is this forcefulness?” So he says, “The explanation is that this is basically a kind of lottery, only it’s a natural lottery. Whoever happened to receive the stronger genes was allotted ownership of the ship, and therefore what we’ve done here is really a lottery.” So here is a source from the Talmud showing that a natural lottery is a good substitute for an artificial lottery—a lottery with dice or a coin toss or something like that.

So, Rabbi, is it even meaningful to call it a lottery when it was done many years earlier, at the people’s birth? Can you still call that a lottery for this moment? I’ll get to that in a minute. That’s a point I’m going to address, okay? I just first want to finish the issue of “whoever is stronger prevails.”

Basically, this interpretation of the rule “whoever is stronger prevails” seems to me very problematic. I’ll give a few reasons, a few arguments. First: if, from the standpoint of Jewish law, forcefulness is really a legitimate lottery—that is, a substitute for a lottery with dice or a coin toss—then I would expect “whoever is stronger prevails” to replace all lotteries in Jewish law. Say partners who want to divide a courtyard they inherited from their father: divide it in half and then go beat each other up. What’s the problem? Why do we need a lottery with slips of paper or a coin toss or something like that? Basically, a natural lottery is fine. Here “whoever is stronger prevails” is really telling me that a natural lottery is just like a regular lottery.

The division of the land could have been done by people beating each other up. The Temple lottery—the selection among the younger men, and likewise among the priests for different roles in the Temple—in all places where Jewish law defines a lottery procedure, the question arises: what do we need that for? Why not rely on the natural lottery? Let the stronger one win. That’s the first thing.

Second—that is the first reason why I don’t accept this interpretation of “whoever is stronger prevails.” It is not a natural lottery. Second, the Rosh offers an explanation for “whoever is stronger prevails,” well-known, and he basically argues there that the one to whom the boat actually belongs will naturally fight harder. And therefore “whoever is stronger prevails” is really a procedure that will help us decide who is right, who is the true owner of the ship. That is what the Rosh claims.

Now if that really is the explanation, then of course it does not fit the claim that this is a natural lottery—quite the opposite. This is a procedure whose purpose is to clarify who the true owner of the ship is. I’ll tell you more than that. According to the Rosh at least, the purpose of “whoever is stronger prevails” is basically to determine who the true owner is. There is one true answer; two people are arguing over what that true answer is—am I the owner or are you the owner?—and the halakhic procedure is supposed to try to determine which of them is right, who the real owner is.

In the case of the Liverpool ship, for example, there is no one who is right and one who is wrong. There isn’t someone who deserves to be saved and someone who ought to die. We need to make a lottery because not everyone can be saved, but this is not a lottery whose purpose is to determine who is right. It is a lottery whose purpose is to distribute the chances. Therefore there is no basis at all for comparing it to “whoever is stronger prevails,” at least according to the Rosh’s interpretation.

According to the Rosh, “whoever is stronger prevails” is really a procedure meant to reveal to us what the correct answer is. The lotteries I’m talking about—like on the Liverpool ship, or between two brothers, or the lottery for dividing the land, or things of that kind—those are not lotteries intended to reveal what the correct answer is. There is no correct answer. There is no one who deserves to be saved and someone else who does not deserve to be saved. But what can you do? We can’t save everyone, so we need some way to decide who will be saved and who will not. That is a completely different kind of lottery. It is not a lottery whose purpose is to determine who is right; it is a lottery whose purpose is to decide who gets it.

Say, for example, that with the ship it didn’t belong to either of them, but both of them want it and both of them have use for it, and neither one claims it had been his. There it would make sense to make a lottery to determine to whom we give the ship, because there is no true owner of the ship there. I want to give it to one of them; I can’t give it to both; so I make a lottery between them and whoever wins gets it. There the lottery’s purpose is to find a solution where I have no fair or obvious solution.

But in the case of “whoever is stronger prevails” there is a true owner. The purpose of this ruling is to reveal who he is, so how can you talk about a lottery? A lottery does not determine who the true owner is. This is a point I’ll come back to in the next part of the series—that is, after we finish the issue of the Liverpool ship—because there is a claim among medieval and later authorities (Rishonim and Acharonim) that lotteries are basically a tool for revealing the will of God. When you make a lottery, as with Achan for example, or something like that, it’s a tool to reveal what the Holy One, blessed be He, really intends. Or with Jonah on the ship, making a lottery to find out on whose account this great evil has come—whom the Holy One, blessed be He, is after. So I make a lottery because I assume that through randomness God will guide us to the right answer.

Fine. But that is all with lotteries of the sort that are meant to determine what the right answer is. But there is another kind of lottery—and by the way, most halakhic lotteries are not of that kind, but of the second kind. A type that says: there is no right answer here at all. The lottery is not coming to tell me what the right answer is. The lottery is coming to find a solution where I have no other solution.

I think I mentioned last time that, for example, in a courtyard that cannot be divided between partners or heirs—they inherited a courtyard that does not have four by four cubits. A courtyard smaller than four by four cubits has no point in dividing into two parts; you would get a very tiny piece of land, there’s nothing you can do with it. This is called a courtyard that does not have the law of division. What do you do in such a situation? You make a lottery. Fine, let’s say you make a lottery, or “buy me out / sell me out,” or you make a lottery—who gets the courtyard. Let’s leave “buy me out / sell me out” aside for the moment; let’s say we make a lottery over who gets the courtyard. It’s just easier for me to explain, even though “buy me out / sell me out” is the same idea.

You make a lottery over who gets the courtyard. What is the meaning of that lottery? Why suddenly make a lottery over who gets the courtyard? Once again, there are those who explain that it reveals the will of God. That God will steer the lottery so that the one who gets the courtyard is the one who really deserves it. Why does he deserve it? He isn’t the true owner; there is no true owner here. He deserves it because he’s righteous and the Holy One, blessed be He, wants him to have a good life for one reason or another. And once again, the rationale behind this—or the sources behind this bizarre claim—are sources that speak about a lottery whose purpose is to clarify what the truth is.

And with lotteries whose purpose is to reveal what the truth is, there may perhaps be room to say that the Holy One—although I don’t think so, as you know my view of providence is different—but there the claims are that God directs the lottery in such a way that it truly reveals the truth to us. But there is another kind of lottery that is not trying to determine the truth at all. Why assume that the result of the lottery is the will of God? The result of the lottery is what came out by random chance.

But there is fairness in this. Even though only one person gets the land and the other does not, there is fairness in it. Why? Because dividing the land itself is impossible. So what is the fairest solution you can make if you can’t divide the land? The solution is to divide the chances of winning the land. Let’s divide equally—yes, equality of opportunity exactly. We divide equally the chance of winning the land, and that is the only thing we can divide. Each one has an equal chance of winning the whole land.

Now in the end the land goes to one of them, and the other comes out worse off. But their initial chances were the same. It’s like paying money to buy a lottery ticket. You’re not paying the money in order to win the lottery in the end; rather, you’re paying to receive the chance to win. When you buy a lottery ticket, you pay for a chance to win the lottery, not for the money you’ll receive in the end. Most likely you won’t receive it. But you pay for the chance to win. Therefore the chance to win is itself also a kind of asset.

And if I can’t divide the asset itself, then I divide the chances of winning the asset. That is the fairest division possible if I can’t divide the asset itself. But a division of that kind is a division whose purpose is to produce a fair solution, not a correct solution—correct in the sense of corresponding to the truth. There is no truth here. I am looking for the fairest solution possible so as to give two people an equal chance or an equal share, an equal portion of the thing being divided.

Therefore there is no reason in the world to apply the ideas that speak about God working through lotteries and showing us what He intends, to this kind of lottery, which is a kind whose purpose is to distribute chances and not to reveal the truth. There is no reason to apply that there, although once again there are people who write that, and many think that way because they think that everything that happens in the world is the work of God’s hands, they have some such conception that everything is really rolled along by Him.

But then forget the lottery—then everything that happens is rolled along by Him. So why make a lottery? Let me beat you up and take the land for myself, and naturally if that happened then apparently that’s what the Holy One, blessed be He, wanted to happen. Everything is fine. Why make a lottery? It’s a bizarre conception. In the end, that’s what I think.

So we’ll get to this distinction between the two kinds of lotteries later. I’m presenting it here because I’m going to want to use it. And in our case, really the claim is—and also with “whoever is stronger prevails”—that if in “whoever is stronger prevails” we were to make a lottery, then it really would be a lottery whose purpose is to reveal who the true owner is. Let’s call it a revealing lottery, not a deciding lottery. There is a lottery that reveals what the truth is, and there is a lottery whose purpose is to decide, meaning to reach a solution when I have no other solution.

So in “whoever is stronger prevails,” if we were making a lottery—and we don’t make a lottery there—but if we did make one, it would be a lottery of the clarifying kind. There is a true owner here; the role of the religious court is to determine who the true owner is and who is lying here. Therefore if they were making a lottery there, it would really be a clarifying lottery. But as you can see with your own eyes, they specifically do not make a lottery there. Since clarifying lotteries—supposedly by which God reveals to us what the truth is—such lotteries are not made.

By the way, the Chavot Yair, who speaks about lotteries revealing the will of God, also insists very strongly that we have to make the lottery in a fair way. When we toss a coin, the coin has to be fair, with fifty-fifty odds for heads and tails. Now why? If the lottery is just a tool in the hand of the Holy One, blessed be He, then God will make the coin fall whichever way He wants it to fall. So why does it have to be fair? What difference does it make? Make whatever sort of lottery you want, don’t make a lottery, do whatever you want—whatever comes out in the end is what God wanted. This whole story is a bizarre story, based on that strange conception.

Anyway, with regard to “whoever is stronger prevails”—that’s what the Holy One, blessed be He, wants when you give Him all the opportunities to do it. I didn’t understand. That’s what God wants when you give Him the options, all the possibilities to do what He wants. If you give Him the options in a sixty-forty distribution, then He can’t do it on the forty if He wants? What’s the problem? He can’t make the coin fall on heads and not tails even though the chance of heads is only forty percent or ten percent? What’s the problem? “Is anything too wondrous for the Lord?”

If, however, people recognize that it’s not so simple to make an open miracle— No, it’s not an open miracle. Ten percent means it happens, right? This is a good opportunity to present a nice line from Rabbi Shach. In one of his letters—letters or perhaps essays—he says there that before Operation Entebbe there was a discussion about what to do. The hostages were in Entebbe on the plane—the hostages, not prisoners—and Rabbi Shach argued that it was forbidden to carry out such an operation. He opposed it because it endangered soldiers and the chance of success was small, and therefore in his opinion it was forbidden to carry out such an operation.

Now they carried out the operation and it succeeded. The operation succeeded. So they came back to Rabbi Shach and said to him: Well, Rabbi, you see—they succeeded. And Rabbi Shach said: Did I say they wouldn’t succeed? I said the chance of success was small, and when the chance of success is small, it is forbidden to undertake such an operation. But when you say the chance of success is small, that means there is some chance that it really will succeed. So the fact that it succeeded in the end, what does that prove? It proves that the ten percent materialized. Ten percent also materializes in ten percent of the cases, no? So what does that prove? It proves nothing.

Therefore in our case, once there is ten percent heads and ninety percent tails—a biased coin—if it falls on heads, will we think this is an open miracle? Of course not. It fell on the ten percent; in ten percent of the cases that happens, what’s the problem? Therefore I see no logic in insisting on a fair lottery if you really hold that all these lotteries are just the handiwork of the Holy One, blessed be He. This is of course just one of the difficulties; there are millions of difficulties here. But these are all strange conceptions based on the same conception that everything that happens in the world is really the handiwork of God—a conception that cuts off the branch it itself is sitting on, of course.

So did the Chavot Yair fall into a kind of intellectual duality? What? I didn’t understand. Did the Chavot Yair fall into intellectual duality? For his sake, I’d like to say yes. If he really believed this, then it’s much worse. I want to believe that deep down even he understood this wasn’t true. But I don’t know.

Anyway, so regarding “whoever is stronger prevails.” Another point: let’s say we don’t accept the Rosh’s explanation. The Rosh claims that “whoever is stronger prevails” is a procedure that reveals who the true owner is. Now in the Rosh himself there are contradictions on this issue between his responsa and his rulings, but that doesn’t matter right now; this is old material, all the later authorities discuss it there in Bava Batra. But say according to the position that is not the Rosh, then that position says: no. It is simply a solution we found in a situation where we do not know how to decide, based on evidence, whose ship it is. So it’s not that this is a procedure that reveals to me who the true owner is.

According to that position—the one not following the Rosh—can we understand this as a natural lottery, a genetic lottery, as Merzbach wants to argue? My answer is no. First, as I said before, because if that were true, then for all lotteries in Jewish law I would say: forget all the drawings and lotteries and everything, just do a genetic lottery—whoever is stronger wins, that’s it. Therefore I think in any case it’s not connected.

But basically I think that according to views not following the Rosh, the simpler explanation is that there is no actual law of “whoever is stronger prevails” at all. “Whoever is stronger prevails”—these are the investigations of the later authorities, right?—is not a ruling; it is withdrawal. The later authorities discuss whether “whoever is stronger prevails” is an actual halakhic ruling, that the religious court rules “whoever is stronger prevails,” or whether it means: we have nothing to say, do whatever you want. Fight, I don’t know, whatever you do. Not that they specifically send the people off to fight and say come fight and we’ll see who is right. No. We go home; we have nothing to say about this case. A case where we have nothing to say—what do you want us to do? So then do whatever you want. That is called “whoever is stronger prevails.”

If that’s so, then there is no room at all to speak here about a genetic lottery. It’s not a question of a lottery at all. Rather, the religious court simply leaves. If in the end they decide to fight, or to divide the ship, sell it and then divide the money—the idea is that the decision is left to them. “Whoever is stronger prevails” is a metaphorical expression; it doesn’t really mean they are told to go fight. Rather, the meaning is: even if you fight—that is, I don’t know, I have nothing to say about this matter. Do what you want. Fight, divide it, make a lottery, do what you want. It is not that there is really a statement here that the fight itself is a genetic lottery, even according to the position that disputes the Rosh.

One of the things they distinguish between—the later authorities who discuss whether this is withdrawal or decision or a ruling—they say that according to the Rosh it is a ruling, because it is really an instrument to determine who the true owner is. And therefore the practical difference is that after I won the ship, the other person cannot later come back and fight with me again and take it back from me. Because it was ruled that it is mine. Since the court ruled that it is mine, then it is mine, period.

As opposed to the view that this is withdrawal: then say we fought and I won the ship. The other one can later come and throw me off the ship and seize it back from me. The religious court withdrew; it said nothing about whom it belongs to or what should be done. Do whatever you want. So the fight can go on forever. That is one of the implications. You can argue of course both ways; not important right now, but that’s just to sharpen the distinction here—whether it is withdrawal or a ruling.

Anyway, so in short, “whoever is stronger prevails” is not a genetic lottery, or a spiritual lottery if you like, which is not an explanation for our issue. On the contrary, now we can ask why there they really do not look at “whoever is stronger prevails” as a spiritual lottery, a genetic lottery. The same question we asked about the Liverpool ship can also be asked about that ship in Babylonia, right, the case of that ship, of “whoever is stronger prevails,” or about all the lotteries in Jewish law. Why in halakhic lotteries don’t we really say “whoever is stronger prevails” in all those places? It’s a good question. What I suggested here is not the answer. What I suggested here is simply an expansion of the question into Jewish law as well, and not only into general ethical questions.

Rabbi, the meaning of the question about the existence of a genetic lottery is basically whether it has legitimacy? Whether it has any validity at all? Yes, like a regular lottery—what do you mean, whether it has validity? Instead of making a lottery, let force speak. Like in Liverpool. The man says: I made a lottery. I threw them into the sea, we fought, I was stronger, they fell into the sea and died. Why are you suing me? For what? We made a lottery. After all, you also agree that a lottery would have been permitted there, since not all of us could be saved. So we did. What do you want? Okay? That is basically the claim.

Maybe to broaden the issue a bit: in that conversation between Merzbach and Yuzvitz he talks there about some French comic, I don’t know, I’m not familiar with it, with Tintin or something, doesn’t matter. One person is holding the other by a rope and they are hanging there from—I see you know this, Eliyahu. I don’t know, I’m not familiar with it. Anyway, one person is holding a rope and the other is hanging below him on the rope. Now the rope will tear if both of them hang on it. The question is whether the upper one is permitted to cut the rope and send the lower one to his death or not.

In that case, of course, you can’t make a lottery, because the upper one cannot cut himself off and leave the lower one alive; the lower one depends on the upper one. So that’s a case with no possibility of a lottery. But what would happen in a case where one is not hanging on the other, but rather both of them are hanging on the rope? Now can I kick you aside and stay hanging on the rope in order to save myself? Because the fairness would seemingly say that we should have made a lottery, but I say: the kick is the lottery. I was stronger—again, lottery, a genetic lottery.

Yes, this also reminds me—as I mentioned earlier—of my article on Siamese twins. There was such a case in Philadelphia in 1976. Siamese twins were born to religious Jews, and there was great hesitation about whether to perform separation surgery or not. I think they had a shared heart. There was a big dilemma whether to perform the separation surgery. So the parents went to ask Rabbi Moshe Feinstein, and the doctors in the hospital went to ask the priest.

Now what is fascinating about the story—by the way it does not appear in the responsa of Igrot Moshe; it appears in an article in the Philadelphia Inquirer from that year—the description they bring there is that the consideration used by Rabbi Moshe Feinstein and the consideration used by the priest are literally copies of one another. It’s amazing. Meaning, Rabbi Moshe Feinstein—I don’t remember which of them said which—but those are the two examples that both of them raised.

One of them spoke about two parachutists who are parachuting, and one of their parachutes tears, and at the last moment he manages to grab the leg of the other one. Now both of them are hanging from the other man’s parachute. Is the second one allowed to kick—so that both of them won’t crash, meaning the parachute can’t hold both of them—is the second one allowed to kick the lower one to his death in order to save himself? That was the analogy made by Rabbi Moshe Feinstein and the priest, I don’t remember which one. And the other spoke about mountain climbers. Both are hanging on some peg stuck in the mountain; one peg was uprooted and I grab the other person, and now both of us are hanging from his peg. Is he permitted to kick me down? Exactly the same analogy, both of them used it.

In any case, for our purposes I’m interested in a different question, because there the issue of a lottery doesn’t arise. There’s nothing to talk about there. That’s like a case parallel to a situation where with Siamese twins one of them has a heart that naturally belongs to him, and the other is piggybacking on the heart and trying to live off the first twin’s heart as well. Now if the assumption is that this heart cannot keep both of them alive, then the claim there is that the parasite should be sent to his death and the heart left with its natural owner.

But I’m asking what happens when there is no natural owner. The heart is in some state where it cannot naturally be assigned to one of them. It’s somewhere in the middle, connected between both of them, and both have the same connection to the heart. What do you do in such a situation?

Rabbi Moshe Feinstein’s claim was—and all the halakhic decisors, as I mentioned—their claim was that in such a case you have to leave both of them to die. It is forbidden to intervene and do separation surgery, because in this surgery we are basically killing one in order to save the other. I said earlier that this seems unreasonable to me, because I am killing the one whom in any case I am leaving to die, so why not kill him at least in order that the other remain alive? There is no logic in that.

But here the question really is whom to kill and whom to save. Each one pushes the other away, right—you can say, why kill this one and not the other? Why kill the other and not this one? The obvious solution is to make a lottery. In a symmetrical situation you need to make a lottery. And once again, it’s like a courtyard that cannot be divided. Since this heart cannot be divided between them because it is not enough for both and both will die, it’s like a courtyard that has no law of division. So you cannot divide the heart; what do you divide? You divide the chance of winning the heart. Each one gets a fifty percent chance of winning the heart, and then we make a lottery, and whoever wins gets the heart, and the other is sent to his death—what can you do? But as long as both had a fair chance from the outset, that is what should be done: divide the chances instead of dividing the heart itself.

Now again the question can arise: if they are these Siamese twins, can I by force take the heart, the peg, the parachute, whatever it is, for myself and throw the other to his death? The assumption is that genetics is also a kind of lottery. The power I have is a kind of lottery—I happened to receive stronger power. So that is basically a legitimate lottery, and therefore there is no need to make a lottery; force can speak. So the question is what to do in such a situation.

There is, by the way, in Sefer Chasidim—when I wrote the article, on the way to writing it I had arguments with various Jews—so they brought me from Sefer Chasidim that it is forbidden to make a lottery over lives. And therefore their claim was that what I am proposing is forbidden. It is forbidden to make a lottery over lives. Yes, after all the arguments about logic and halakhic considerations are exhausted, they pull out of the hat some thing that is unclear, some principle from Sefer Chasidim that it is forbidden to make a lottery over lives. Where does he get that from? To this day nobody knows. But there was such a claim.

So in truth maybe we’ll talk about this in the next part. In Sefer Chasidim itself one can show that this is not correct, that’s not what it says there. But in any event, even if one speaks of a prohibition on making a lottery over lives, that is when you are talking about the question of who is right—making a lottery like “you shall not practice divination.” One can speak about a prohibition against making a lottery on the grounds of “you shall not practice divination,” okay? And you also have to assume that this overrides saving life, perhaps because it is an accessory of idolatry, I don’t know exactly, because otherwise even if there is a prohibition—fine, I will violate that prohibition in order to save the life of one of the two people. So there are all kinds of assumptions here, and they are very problematic assumptions.

But in any case, even if it is true, what is the prohibition of “you shall not practice divination”? The prohibition says: yes, I see a black cat and I decide that I’ll have bad luck today so I won’t do what I had planned to do. That is “you shall not practice divination.” Why? Because that is an irrational consideration. You need to use rational considerations to determine the truth on the basis of rational considerations, and not rely on all kinds of metaphysics.

Now you understand that a prohibition of that kind can exist only regarding lotteries of the revealing type. Lotteries of the revealing type are lotteries that are basically supposed to tell me: “If you came out in the lottery, apparently you are the one who is right.” Claims of that sort. Here one can say this is “you shall not practice divination.” And notice that this comes out exactly the opposite of what all the commentators and halakhic decisors I quoted earlier said, when they talk about all lotteries revealing the will of God. If that were so, then it would be the prohibition of “you shall not practice divination.”

Then with lotteries of the revealing type you could perhaps claim there is a prohibition of “you shall not practice divination.” But with lotteries of the type of fair distribution of chances, what does that have to do with “you shall not practice divination”? Am I trying to arrive at a correct answer by crooked means? I’m not trying to arrive at an answer at all. I’m trying to find a solution when I have no other solution. My solution is to divide the chances. I’m not claiming that the one who comes out alive is a sign that this is what God wanted, that God wanted him to come out alive. That, you could say, is “you shall not practice divination.” But if I’m not claiming that—like “any divination not like that of Eliezer son of Abraham is not divination,” as the Talmud says and Maimonides rules in the laws of idolatry.

What does Eliezer, Abraham’s servant, say? That the woman who comes there and says to me, “Drink, and I will also draw for your camels”—I know that her the Holy One, blessed be He, has designated for my master. Meaning, he uses that kind of indication—it’s not a lottery but it is an indication—to discover a true answer: who is the woman intended for his master? There one can speak about divination. But to make a lottery between two options because you cannot divide the asset, and so you divide the chances of winning it—what does that have to do with “you shall not practice divination”? What prohibition could there be on making that kind of lottery? It is just nonsense.

But once again it comes from the same point. It comes from the fact that people think that this kind of lottery too is basically meant to reveal the will of God. But that is not true. This kind of lottery is meant to distribute the chances fairly. That’s all. Instead of dividing the asset, you divide the chances. Instead of dividing the peg, the heart, the canteen of water if you like—whatever it may be—you divide the chances of winning it. So therefore this prohibition of lotteries also comes from the same mistake.

So my starting point is that in such a case it is obviously permitted—and required—to make a lottery. I’ve thrown aside all the options I raised until now. They are not on the table. It is permitted and required to make a lottery in these situations. The question is: why do I have to make a lottery with slips or a coin, and not treat genetics as a lottery—a natural lottery?

Here I want to begin surveying a few possibilities that come up when one thinks about this question. One can think of several possibilities. The first possibility—and this already came up earlier when Elihav spoke—is the timing of the lottery. Basically the claim is that genetics is a lottery that was made when I was born, before I was born, okay? And therefore, when we came to the ship—yes, after the ship broke on the iceberg—we came to the ship and the lottery had already been made long ago. A lottery has to be made after the need to decide arises. You don’t use a lottery that was done in the distant past. That is one possible explanation one might try to offer.

But I don’t think that’s right. I told you, Elihav, that I would get to your argument. Think, for example, about a situation where the passengers know before boarding the ship that there are only two lifeboats and there should be three. Okay? And there are thirty passengers, and only ten can get on each lifeboat. So you need to lottery off ten who will not be saved. Meaning, if the ship breaks apart they will have to die and the other twenty will be saved. Is there any problem in making that lottery before we get on the ship? We make a lottery that if something happens to the ship, since we know there are only two lifeboats, we make a lottery in advance over which twenty will be saved and which ten will be left to their deaths. And we did this long before we boarded the ship. Is there any problem with that? I don’t see the difference between that and doing the lottery after we had entered the situation. I don’t think the parameter of time is an important parameter here.

The difference is that here, even if it’s before boarding the ship, you’re making the lottery with the intention that if there’s a problem with the ship, then this lottery will be relevant. Commandments require intent. What? Does the commandment of a lottery require intention? No, lotteries don’t require intention, but the genetic lottery wasn’t made for this purpose. I agree, but so what? So what if it wasn’t made? Somebody here is suggesting consent—Menachem. He’s suggesting consent to the rules. I’ll get to that in a moment, okay? I think there is something to it, but we need to refine the wording a bit. I’ll get to that in a moment.

So the first argument, yes, the timeline, doesn’t seem to hold water. It can’t be the explanation. By the way, just notice the methodology here. What I’m really in here is a kind of dilemma, a kind of paradox. We’ve landed in this kind of situation several times already. On the one hand there is an intuition that the genetic lottery is not fair. On the other hand there is some comparative argument, an analogy: why do you care how the lottery was done? It’s a lottery like any other lottery.

Now what do you do in such a situation? We asked a similar question in earlier parts of the series, I think around statistical evidence. One can ask a methodological question: what do you do in such a situation? I have an intuition on the one hand, and an explanation on the other. So throw the intuition in the trash. Here, the explanation shows you that the intuition is misleading you, and that’s all. It really is a good lottery; everything is fine. Why are we looking for explanations? We are looking for explanations because we assume that behind this intuition there is probably some kind of logic. It’s not just an illusion.

True, at the moment at least I don’t know how to explain it. But somehow I have a very strong feeling, and I give that feeling credit, that the genetic lottery—the force-based one—is not fair, even though apparently one can offer a very convincing simple explanation that basically everything is fine. As I said, Merzbach was really inclined to accept that explanation as correct. He had no principled problem with not making a lottery, because genetics itself is a lottery. But somehow our ethical, moral intuition rebels. And the question is how to relate to that.

I’m coming back to this because it is a central point for me. Intuition is not something I dismiss. Even if I don’t know how to formulate the reasoning, the logic behind the intuition, intuition is a very important thing, especially in questions like this—moral questions—because moral questions are often decided on the basis of intuition. My intuition is: this just isn’t done. Why isn’t it done? There are very good arguments for doing it. I don’t know. You just don’t do it.

Now there could be the other side of the coin. The other side says: okay, so I have an intuition, I trust it, so I throw the analogy in the trash. Then no—it’s not a proper lottery, period. I have a good intuition that this is just not done, and therefore we don’t do it, and that’s all. Why look for explanations? I’m saying there are two initial paths, both of which amount to not looking for an explanation. One says: look, you have a rational explanation, throw the intuition in the trash if it misled you. The second says: if you trust intuition, then why do you need explanations for it? The intuition is good, period. Accept it; throw the rational explanation in the trash.

I choose neither this nor that. I respect intuition, but the respect I give intuition is a reason for me to look for an explanation. It doesn’t stand on its own. When I look for an explanation, if I find one, then for me that will calm me down, and then I will indeed go with the intuition against the formulated argument. But if I don’t find an explanation, I’m not sure I’ll go with the intuition. I don’t know. It’s not a simple question. That’s why I say: many times when I talk all the time about the importance of intuition and the fact that you can’t escape intuition, people understand that once I have an intuition, all arguments are closed off, the problem is solved, and we can move on. No. I respect intuition in the sense that I do not dismiss it even if I have no explanation. But it is a trigger to look for an explanation. It’s not that intuition by itself, once it exists, settles everything. No, intuition can also mislead. Intuition is not something certain. But intuition is a highly important instrument that can signal to you, point you in the right direction. The way to test it is to look for whether I can formulate an explanation that underlies the intuition.

Okay, that is really why I am setting out on this path at all. I’m setting out on this path because I do not accept either of the simplistic resolutions in either direction. Not the formulated argument that says the intuition is just an illusion, and not intuition as some kind of all-conquering trump card independently and across the board. That’s also not correct. But intuition does give me a direction. I need to search, because I have a very strong feeling that something here is not fair. Let’s try to see whether I can formulate it, and then that will calm me down that I can really follow the intuition.

So the first formulation I suggested was the timeline. But I said that doesn’t hold water. The timeline does not seem like a sufficient explanation. Maybe it depends on who is doing the lottery. In the natural lottery, maybe it depends on who made the lottery. In the natural lottery, I didn’t make that lottery; I was born that way. Why does that matter? It matters because then it’s not called a lottery, and there’s a chance for each side—what’s the problem? What difference does it make who does it? Is a lottery invalid because someone else made it?

Rabbi, when you say intuition is important but can’t be the basis for a rational explanation—but in morality isn’t the basis always entirely human and intuitive? There is no rational explanation for it. I agree in principle. Of course, even if I find an explanation, that explanation too will rest on certain intuitions. That’s obvious. But there is still value in that explanation, because it connects the intuition that something here is wrong to other intuitions I have, and that coherence between the intuitions strengthens them all. The web created by combining the intuitions strengthens them. You’re right that you can’t escape intuition. In the end, at the basis of every explanation there will sit an intuition. I agree with that.

So let’s see. Let’s keep looking and see whether we find something or not. A second formulation that arises here—I call it the argument from personal identity. The fact that Reuven has stronger genetics and Shimon has weaker genetics—that is, in terms of physical strength—the genetics of a person are part of the person himself. The person is, among other things, his genetics. Even if I’m a dualist and think that a person also has a spiritual part and not everything is physiology or genetics, it is still obvious that genetics are part of the matter. And when I send a person to death, I am not sending the soul to death, I am sending the body to death. Okay, or not the body, but rather the connection between the soul and the body.

I already once mentioned that there are three transgressions concerning which one must die rather than transgress: idolatry, forbidden sexual relations, and bloodshed. Idolatry is a sin on the intellectual, spiritual plane. Forbidden sexual relations is a sin in the material, physical realm, in bodily pleasure. And bloodshed is a sin in the hyphen, the hyphen connecting the material and the spiritual. When I kill someone, the body is here, and the soul presumably has not been annihilated either. What happens in death? In death, what happens is the separation of the soul from the body. Meaning, they are separated. The hyphen connecting the soul to the body is what disappears in murder, not the body and not the soul. So in a certain sense, the three severe transgressions each address a different part of the map: the body, the soul, or the hyphen connecting them. Fine, that’s just a wedding-speech line.

Now I return to our line of thought. At a wedding speech you talk about forbidden sexual relations and murder? Yes. For you it’s still fresh, you still remember; I already don’t remember. Fine.

So I want to make the following claim. When we make a lottery between two people, I basically have two people, and I make a fair lottery so that each one has a fifty percent chance of winning the thing they want to win—life, the courtyard, the peg, doesn’t matter what it is that we want to win, okay? But genetics is not a means of making a lottery between people. Genetics is the people themselves.

If I have two people between whom I make a lottery, then I toss a coin and that gives a fifty percent chance to Reuven, fifty percent chance to Shimon. But I have Reuven, I have Shimon, and I’m making a lottery between them. Genetics is Reuven and Shimon themselves. Meaning, it’s not that Reuven happened to draw strong genetics. The genetics are Reuven. If he had not happened to receive strong genetics, it would not be Reuven; it would be someone else. A person with different genetics is not the same person only with different genetics; it is a different person, another person.

Therefore it is hard to treat this as a lottery between two people. It is not a lottery between two people; the people are the genetics. Okay? So it is not—it is basically saying: I want Reuven. It’s not that I made a lottery between Reuven and Shimon; I want Reuven, that’s all. Therefore one could say that there isn’t really a lottery process here. This is not called a process of a genetic lottery. I am challenging the analogy between a lottery with dice and the genetic lottery.

This is a bit reminiscent of what I spoke about long ago concerning wrongful life. In the legal world there is a topic dealing with whether a child who was born, say, with a severe medical condition, who suffers greatly and so on, with a disability that cannot be treated, and that is what his life will be—can he sue his parents for not having had an abortion? A tort claim. In most legal systems in the world, the answer is no. By the way, in Israel apparently it is possible—not by statute, but there is a Supreme Court ruling. But in most systems in the world, no.

And one of the reasons why not is that when Reuven comes to sue Shimon, the assumption is that Reuven exists, Shimon exists, and Reuven sues Shimon for something he did to him. But Reuven cannot sue Shimon for the very fact that Reuven exists, that the plaintiff exists. Because if he didn’t exist, there would be no one here to sue. Meaning, you are suing your parents for the fact that you are even able to stand here in court and sue them. If they had had an abortion, you wouldn’t be here. Or alternatively I can ask: whom did they harm? You sue them because they harmed you? They did not harm you. You simply exist because they did not have an abortion. If they had had an abortion, it isn’t that you would be here only in a more whole, less damaged state. You simply would not be here if they had had an abortion. So a claim of that kind cannot exist on the logical-philosophical level. It is impossible to make such a claim.

You can formulate this through the assessment, right? Assessment means that when I sue you, how do we determine how much you must pay me? We assess by comparing two situations. Say you cut off my arm. How much am I worth with the arm, how much am I worth without the arm? The difference is what you have to pay me. Fine? The difference is basically the assessment. But in the case of abortion you can’t make such an assessment, because if they had had an abortion I wouldn’t be here at all. And if they don’t have an abortion, then I’m here with all the suffering decreed for me. So how can you compare? There is no state of me as whole, without the suffering, and me with the suffering, so that I can compare what damage was done to me. No. Without the suffering I wouldn’t be here. Or in other words: the suffering is me. It is not suffering that was caused to me. The suffering is part of my very definition, because it is my very genetics. If my genetics had been different, I simply wouldn’t be me. It’s not that I would not be suffering; it would be someone else, not me.

Something like that I want to say here as well. When I claim that genetics is a lottery, that is a strange claim on the philosophical level. Because a lottery assumes that here are Reuven and Shimon, we toss a coin, and the coin gives a fifty percent chance to Reuven to win before it was tossed. There is a fifty percent chance for Reuven, fifty percent chance for Shimon, and therefore the lottery is fair.

Now describe to me that same thing regarding the genetic lottery. Before Reuven received his genetics, did he have a fifty percent chance of being strong or being weak relative to Shimon? And now he drew the chance and became strong, so therefore the lottery is fair? You understand that this is nonsense. Before he drew his genetics, it wasn’t him—he wasn’t there. His genetics are him. There was not some person waiting there saying, let’s see what genetics I’ll draw. No one was waiting; until there are genetics, I don’t exist. Genetics is the definition of who I am. Therefore you can’t speak here about a genetic lottery.

This is an argument by which one can understand why it really rules out the genetic lottery, but I’m not entirely sure this argument is sufficient. I’m a bit torn. Maybe when we reach the final argument you’ll see that perhaps it is also hiding behind this argument, but for now, as I presented it here, I’m not sure I accept it. Because fine, formally one can’t say that there are two people here who each got a fifty percent chance. But practically, genetics really is a natural process. So the fact that I came out stronger—why shouldn’t we treat that as a lottery? The fact that one cannot define it as though there were Reuven and Shimon waiting for some sort of lottery that gave each a fifty percent chance—true, that description as stated doesn’t fit a genetic lottery. Fine. But still there is a lottery in genetics. Genetics is random. You got one kind of genetics and the other got a different kind, and those genetics are stronger. One can see something like that as a lottery. True, it isn’t a lottery between Reuven and Shimon, but still it is a lottery. Fine, then let that lottery decide who wins.

So I’m torn as to whether this formulation is sufficient. Maybe I’ll give you another example. Suppose Reuven and Shimon are in a boat, and the boat can carry only one of them. Reuven is at the bow and Shimon is in the middle of the boat. Now they fight, and Shimon pushes Reuven into the water, because it’s much easier to push him into the water—he is on the edge, at the bow. I’m in the middle of the boat; he won’t be able to knock me into the water. He would need to move me for that, and he won’t succeed. So even though I wasn’t stronger than him, simply because I was in a more convenient position in the boat, I managed to knock him into the water. Can something like that also count as a lottery?

The question is whether it results from free choice or from physical causes. Yes, but here it’s a lottery that in principle is not the result of free choice. I’m standing here in the boat and you’re standing there. That happened. It isn’t that someone freely chose to be this way or that way—though perhaps choice would also be fine here, but let’s leave free choice aside for the moment. In the end, what comes out is that position in the boat determined it. And position in the boat is random, so that’s a lottery.

Notice that the answer I gave earlier won’t help here. Because you can’t say that my position in the boat is me. Genetics really is me, but my position in the boat is something completely external and accidental. In no way can one say that my position or your position in the boat defines who I am. No. You and I were standing there before getting into the boat; each of us had a fifty percent chance of ending up in the middle of the boat or at the bow. There was a kind of lottery—an unintentional lottery—that brought me to the middle of the ship and you to the bow, and then I managed to push you into the water.

Now this is completely a lottery. Here one can no longer argue that my position in the boat is the definition of who I am. The earlier argument won’t help. But on the other hand, the feeling that this is not fair exists here too. Once again I return to the centrality of intuition. The feeling that this is not fair exists here too. If that is true—if you also feel that intuition—then that means the explanation tied to the fact that genetics defines me myself is probably not what underlies this intuition. Because the intuition exists even in cases where that explanation is not true. And if I’m right, then we still have not reached the explanation underlying the intuition. We need to keep looking.

Now let’s try to suggest another formulation. Or before another formulation, let’s think about another situation. Reuven and Shimon are in a boat. Reuven says: look, my name begins with the letter R, and your name begins with the letter S. So I come before you, and therefore I push you off the boat and you drown. Again, I won’t get into Hasidic mysticism, but the name is not a person’s essence. The name is something completely accidental, and therefore the genetic explanation won’t work here. But there is another important point here that I want to clarify. A very important point for our matter.

When I use force to push you off the boat, here in this case we are not talking about a genetic lottery. I am not claiming my advantage because I am stronger. I am claiming my advantage because the letter R comes before the letter S. We happened to draw names; I happened to get a name with an earlier letter, you happened to get a name with a later letter, so the lottery—and this is not our essence and none of that—there was a lottery here, everything is fine.

But perhaps you’ll say: fine, but you used force to push me into the water. Fine, in the end whoever loses the lottery always has to be somehow pushed into the water. Unlike Eli Merzbach’s claim, here force was not the parameter of the lottery itself. It is not that because I am stronger, that itself constitutes the lottery. Were stronger genetics the parameter by which the lottery was performed here? No. The letter of the name was the parameter of the lottery. Force serves me only as a way to implement the results of the lottery.

Think, for example, of a case where we made a lottery by coin toss. Reuven and Shimon are sitting in a boat, we made a lottery with a coin, and Shimon lost. Now Shimon doesn’t want to fall into the water. Is Reuven allowed to push him by force? Obviously yes. You agreed, there was a fair lottery, each of you accepted the results. If you don’t abide by it, I’ll use force to carry out the results of the lottery. Here force is not the parameter on which I made the lottery. It is not a genetic lottery. This is a fair lottery; we tossed a coin. Force is only the means I use to carry out the results of the lottery. Now with R and S it is really the same thing. There the lottery was over the letter of the name, and force is only the way I made sure the lottery’s results were implemented. Exactly like with a coin.

So if a coin lottery is fine, why is a lottery based on the name not fine? You know, this reminds me: in the end one always has to resort to force to carry out the results of the lottery. Ultimately, in every proposal you make, every lottery you conduct, in the end force will have to be used to implement it. Therefore the mere fact that force is used does not invalidate the move. If the force comes after a fair lottery—not that force is itself the parameter of the lottery, that because I’m stronger therefore it means I was allotted life. No. Force is merely the means by which I carry out the results of the lottery. That is perfectly fine, so long as the lottery itself was fair.

What troubles us in the Liverpool ship case is that there force was the parameter of the lottery itself. He did not implement a fair lottery; he himself was the lottery. He didn’t implement a fair lottery. He himself was the lottery. And there the feeling is that this is an unfair lottery. And I’m looking for an explanation why, right? That is really the question.

So let’s go back to R and S. Seemingly R and S are exactly the same as the coin. What’s the problem? Force is only the means of implementing the result, but we did make a lottery. The names were given to us long ago, but we already said the timeline isn’t important, and therefore everything is fine. But did Shimon agree to this name-based lottery? No. So doesn’t everyone have to agree? No, they don’t need to agree.

What would happen, for example—let me give you an example—suppose we are sitting in a boat. The examples always guide our intuition. We are sitting in a boat, there are two people, and I suggest to Shimon that we make a lottery. The boat can’t hold both of us. A coin toss, a fair lottery. Shimon refuses. He doesn’t want to make a lottery; he wants both of us to drown. Am I allowed to make a lottery, and if Shimon loses, then push him by force to his death? Shimon didn’t agree to the lottery. What do you say? I think I’m allowed. I don’t need to die because this fool is stubborn. Provided I made a fair lottery. The fact that he is stubborn doesn’t mean he deserves to die. I make a lottery with fifty percent for me and fifty percent for him, and if he doesn’t agree, that’s his problem. Am I allowed to make a lottery? Of course. What do you mean, because he doesn’t agree? If he doesn’t agree because he thinks the lottery isn’t fair, that’s a different discussion. I’m talking about making a fair lottery.

A lottery according to the name, Rabbi—that’s not fair. Why is it not fair? What’s the problem? Did I choose the name? My parents chose the name; they didn’t know we’d be on the boat. Yes, but the criterion of the lottery from the outset already says that it’s Shimon who is going to be pushed. Fine, that’s how it came out, what can you do? My parents could have called me Shimon, and his parents could have called him this. It’s completely accidental. But why not choose, say, that the later name, the later letter, is the determining one? Okay—that’s an interesting claim. That is the claim where we begin to get close to what I think is the correct solution. Which claim, mine or his? No, Shmuel’s, I think, who spoke earlier.

I think the point is this. The one with the later letter—Shimon, sorry—Shimon can also say: look, the later name is the one who stays on the boat, and the earlier-name R has to be thrown to his death. Why did you decide that the earlier letter is the one that stays on the boat? But it is not enough just to make that claim. Because if we had established that the earlier name stays on the boat and then assigned the names, that would have been fine. So something about the time factor nevertheless does play a role. That’s what I’m saying—the results are already fixed in advance. That’s what I said: the results are already fixed in advance.

No, the point is this—look, it’s more subtle. The point is this: we could have made a lottery and determined the results according to the earlier letter; we could have determined the results according to the later letter, right? Now you choose the earlier letter because that’s what keeps you alive. I, with equal justification, could choose the later letter because that’s what would keep me alive. That is not called a lottery. That is called an ad hoc act. A lottery has to be made in advance. Notice: not in terms of time—I ruled out the timeline earlier and that isn’t right—but there is some kind of connection to time. It’s no coincidence that the first explanation that popped into our heads was based on timeline. There is something there.

You can’t choose a lottery ad hoc. Let me take a lottery ticket, okay? And now I’ll say: okay, the number written on my ticket is the winner. I could have chosen any other number; I chose this one. What can be? Obviously I chose it because it’s my ticket. That is not a random choice. It is not a choice that gave a fifty percent chance to each side. True, each of us had, in advance, a chance to end up with a name whose letter is earlier. But then you would have chosen a different lottery technique. If your letter had been later, then you would have said that the later letter is the determining one. Instead, you decide that the earlier letter is the determining one because that is what keeps you alive. So don’t tell me stories about lotteries.

In the end, you succeed because you throw me into the sea because you are stronger. And therefore force is indeed the parameter of the lottery in the case of ad hoc lotteries. It is not just the way of implementing the result. In this case force is the way of carrying out the lottery itself. And then what? And why is force not a lottery? After all, it’s genetics—a genetic lottery. The answer: because it is an ad hoc lottery. Why shouldn’t the weaker one stay alive and the stronger one die?

By ad hoc lotteries I mean lotteries that I fit in advance to the outcome I want. I choose the technique that suits me. I’ll explain this more in the next lecture because our time is a bit up and I need a little time. I’ll explain it more, but I just wanted to complete the line of thought. My claim is that a lottery based on genetics is problematic because it is an ad hoc lottery. There was not really any lottery here.

Because we could have determined a hundred thousand forms of lottery that are all genuinely random. No problem, right? But on what basis does Reuven choose the lottery of the earlier letter? Because he has the earlier letter and wants to stay alive. So what do I care that the names were chosen randomly? The names were chosen randomly, but choosing the names was not the lottery. The lottery was the decision about which selection of names would determine the result. And that was not done by lottery. Reuven imposed that on Shimon. Therefore Shimon was never, at any stage, given a fifty percent chance of staying alive.

If Shimon had been given the name Reuven at birth, and Reuven had been given the name Shimon at birth, who would die? Shimon—who is now called Reuven—would die. Why? Because the stronger bully would decide that the later letter should stay alive and the earlier letter should die. So the fact that we choose the names by random assignment does not really mean there was a fifty percent chance for each side.

Let’s return to the Liverpool ship. That guy was a bully, pushed people into the water, and that’s how they died. Now he says there was a genetic lottery. But with equal justification, in the genetic lottery I could say that the weak should stay on the ship and the strong should be thrown into the water and die. Why didn’t you choose that parameter? Why did you choose specifically the parameter of strength? Because you are stronger and you wanted to stay alive. It is exactly like the R and S of Reuven and Shimon. This is not a lottery.

Now understand: this is obviously the correct answer. Once I formulate it like this, you can’t argue with it. Anyone who claims otherwise simply doesn’t know what he’s saying. It’s just a mistake. This is not a matter of worldviews or outlooks. It’s just a mistake. There was no lottery here at all. An ad hoc lottery is not a lottery. It’s like—well, I’ll talk about that next time, but I’ll discuss it next time. I’ll explain it a bit more next time, because I need a little time for it. Okay, so we’ll stop here. If anyone wants to comment or ask something.

Maybe another line of reasoning, Rabbi—that a lottery, what is called a lottery? A lottery is when all the players in the lottery are in the same place at the same time. Why? A lottery gives everyone an equal opportunity to succeed. Why? If I’m in a lottery drawing and it’s conducted in the presence of some people who bought tickets and are sitting in the audience and the others stayed home—does that mean the lottery isn’t fair? What difference does people’s location make? So long as the lottery is fair.

Any other comments or questions? Rabbi, can I ask something about this topic of wrongful life? You basically brought the argument that the very fact that you are here—you come and say, why did you as parents bring me here defective? The very fact that this is what you are. And you can’t sue over your own essence, right? That’s basically the argument. So let’s take an example where the parents did—this is really possible maybe even today, and if not now, then in principle—where the parents sat down beforehand, did IVF, and performed genetic engineering on the sperm or the egg, manipulated the genes, and knowingly caused the genetic material of the egg or sperm to produce a baby who would be limbless, blind, or all together. Then they created the fertilization in IVF in a lab, and he was born. And he comes and says: why did you bring me into the world blind, deaf, and limbless? And they tell him: you can’t sue over the very fact that this is what you are. When you were a sperm or egg, that wasn’t you. You became you only from the moment of fertilization. But it’s obvious intuitively that that’s unjust.

I disagree. To me that is exactly the same thing. I think your intuition is directed somewhere else. If there were such a case, it could be that we would make a claim against the parents that they are immoral people. But who would sue them? Who would be the plaintiff? Who is the injured party? Maybe the state—a criminal claim. It would not be a civil tort claim. There are no tort damages here in a civil suit. And you, as the person suing—you cannot sue them, because if they had chosen someone else, that wouldn’t have been you. So you cannot sue. The state might perhaps sue them for being wicked, in a criminal case, but you in a tort claim cannot sue them, even in that case.

By the way, in principle the state could sue them for being wicked even for not having had an abortion if they know the child would have congenital defects or would be born to a life of suffering and they could have had an abortion. In principle the state can also sue them for that. So there is no principled difference between IVF and ordinary physical screening, meaning abortion. But a criminal claim requires that there be a prior law. I’m talking on the principled level, obviously. So if the state can legislate such a law and sue by virtue of it.

Any more questions? Rabbi, does that person on the ship really have to think through all the considerations we’re raising here? Of course. What do you mean? He needs to understand that he has no privilege to throw people off; the fact that he is more of a brute doesn’t mean he’s allowed to throw them. But in such a situation nobody thinks, it’s instinctive. In my opinion it doesn’t even make sense to speak of a lottery. It’s not that he thought: let’s make a lottery based on strength and I’ll win. No, of course he didn’t make a lottery based on strength. We are suing him because he murdered people. He only claims in his defense that he made a genetic lottery, and I’m saying to him: a genetic lottery is not a lottery.

Now you can say that perhaps this was some instinctive action and not really the result of choice at all. If he can really prove that, then maybe there is no place to sue him. That’s already a technical question; it’s not important for my discussion. On the principled level there is room for such a suit. It could be that in such a situation a person doesn’t think at all and one cannot expect him to stop and think. Fine, that’s secondary. On the principled level there is room for such a claim.

Rabbi, is his wrongdoing basically because he actively pushed them into the water? I’m trying to think of a situation where, say, by virtue of his intellectual cleverness—suppose that’s something genetic—he knew exactly where to stand in the boat so that he would be the last one to survive. That seems fine to me. Not because of passive omission. It’s not passive omission, and he didn’t kill them by passive omission either; he simply saved himself. A person can save himself, and if others failed to save themselves, fine—what can you do? That is okay. But where he pushes them into the water, then he is not saving himself; he is killing them, and as a consequence he is saved.

The Chazon Ish has something similar. There was a case that also reached the court. There was a case in Bnei Brak involving a woman who was driving, I think, and some cat crossed in front of the car and she swerved and ran over a person on the sidewalk and killed him. Instinct. Wait, no, that wasn’t it. That was a court case with Aharon Barak, and there was another story with the Chazon Ish. I think—yes, no—a person crossed in front of the car and I swerved the car and it hit another person and he was killed, I think that was the story. So the Chazon Ish says that this is not an act of murder under coercion or unintentionally or as an unintended result or something like that. It is an act of rescue altogether. There is no basis for a claim. She—or he—was occupied with saving the person in front of him, not with killing the other one. True, that other one died in the end, but this cannot even be called an act of killing. It is an act of rescue. An act of rescue that in the end led to someone’s death. It is not an act of killing done under coercion. In essence, the act is defined as an act of rescue.

Here too I say something along those lines. A person goes to the best place to save himself. If he is clever and knows how to do that, fine, then he saves himself. That’s okay. And the others—if they’re clever enough, maybe they’ll know how to save themselves too. What can I do if they weren’t clever enough? I didn’t do anything to them; I saved myself.

So it really does depend on active commission, no? Rather than passive omission. I think—it’s stronger than active commission. Because to kill someone by passive omission, maybe I’m sitting on someone and I don’t get up. Someone made me sit on someone else and I didn’t get up. So I killed him by passive omission, right? Say I crushed him to death. But I really did kill him, only passively. Here I didn’t kill him at all; it’s not passive omission. I saved myself. He happened to die, but that’s something entirely different. Therefore I think it’s something weaker than passive omission—it’s even more permitted.

But suppose in the case of “two people were walking in the desert,” and suppose the canteen was not in the hand of one of them but was just lying there, and now the stronger one—the faster one—will reach the canteen first, and then according to Rabbi Akiva he will drink it all and the other will die of thirst. In the end it comes out almost the same thing. That is a bit similar to the case of standing in the right place on the ship so it won’t sink, what Menachem said earlier. There is a feeling that this is different. Here I would intuitively say he is allowed to run and take the canteen for himself. He doesn’t need to make a lottery with someone else, because that canteen is ownerless. And now if I acquire it, then this canteen is mine, and once it is mine I no longer have to share it with someone else. Meaning, I didn’t kill him; I saved myself.

The question is why that is different from a ship that cannot save both of us and I push you aside, and then they sue me: why didn’t you make a lottery? Intuition says it’s different. When I pushed you aside, it’s not that I took the ship for myself, but rather I killed you. With the canteen, I took the canteen for myself because I wanted to save myself. What can I do that this doesn’t leave another canteen for you to save yourself? Fine, but I didn’t do anything—I did something entirely legitimate. I did an act that would help save me. An act of rescue. It is not an act of killing, in the Chazon Ish’s terms. Therefore I think that is different from someone who pushes a person out of the boat.

It seems to me the same thing happened in the Holocaust when they asked—I think—Rabbi Shapira of Kovno, when they demanded that they hand someone over or else they would kill the whole ghetto, or hand over the children or the elderly. I think the question is the same question, whether handing them over is already more— Right, but there I would say that in principle one should make a lottery. One should make a lottery, because if the alternative is that all of us die anyway, then at least hand them over and save yourself. It’s just that there you have Maimonides’ rule, whose source is the Jerusalem Talmud in Terumot—Maimonides, Laws of the Foundations of the Torah, chapter 5, halakhah 5—where he says it is forbidden to do that. The Talmud says it is forbidden to do that. But there it is a problem of desecration of God’s name, not a problem of—meaning, in terms of the laws of preserving life, that is what should be done, except that because of desecration of God’s name one should still not do it.

Okay, have a peaceful Sabbath, goodbye. Peaceful Sabbath, thank you.