Lecture from 21 Tevet 5767

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[Rabbi Michael Abraham] His life is bound up with saving the one being pursued. The one who created the equation has to bear the consequences. He is the one at fault, so his blood is less red. We have a criterion for how to break this symmetry, how to decide who takes precedence over whom. The answer is: whoever created a situation that says either I die or you die—whoever created that situation is the one who has to bear the consequences. If you created that situation, then don’t tell me, wait a second, we’re in a bind, either my life or his life. What do you mean, a bind? You tied that knot. You created this tangled situation. So don’t now come complaining, why are you killing me, after all there’s a bind. Don’t create the bind and then come with complaints. So what does that mean, really? That the reason we kill the pursuer in order to save the pursued comes from the fact that the symmetry has been broken here. The blood of the pursuer is less red, and therefore the claim of “who says your blood is redder” doesn’t apply here. Such a claim exists only when the situation is equal, when both of their blood is equally red; then indeed there is no way to decide, and passive omission is preferable. But here there is a way to decide, like in the case of a fetus. For a different reason, but like in the case of a fetus. And since that is so, his blood is less red, the blood of the pursuer is less red than the blood of the pursued. I’ll maybe give an example of this distinction. Maimonides writes at the end of the laws of one who injures and damages—you’ll see it on your page—at the end of the laws of one who injures and damages: A ship that was about to break because of the weight of the cargo. There is a heavy load on the ship and it is about to break because of the weight. And one of the passengers got up and lightened the load and threw it into the sea. He saw that the ship was about to break, so he took those objects from the ship and threw them into the sea in order to save himself and the ship. He is exempt. What does exempt mean? Exempt from paying. The objects belonged to someone else. “For the load on it is like a pursuer after them to kill them, and he performed a great commandment by throwing it overboard and saving them.” You want him to pay? He performed a great commandment. Why? Because that cargo—even though it’s an inanimate object—is like a pursuer. It is about to break my ship and drown me. So there is no choice. Just as it is permitted to kill a pursuer, it is permitted for me to throw that cargo into the sea, and I am exempt. The Ra’avad challenges him: “Said Abraham: there is neither salt nor seasoning here, for there is no law of pursuer here at all. And this is not comparable to the case of the donkey in the chapter ‘Ha-Gozel.’ And with regard to this law, that he threw it into the sea, even though he threw the property of another man, they calculate among all according to each one’s load, as is stated in the Talmud.” The Ra’avad says: of course it is permitted to throw the cargo overboard—I don’t have to die. But I am not exempt from paying. Who has to bear the consequences? Like everyone else. Let’s divide the financial burden among ourselves. But not that I am exempt. What do you mean I am exempt? If I threw overboard the cargo of one person, why should he bear all the consequences in order to save all of us? We have to share the burden. That is what the Ra’avad says. On this Maimonides, the Maggid Mishneh, the Kesef Mishneh, and the Migdal Oz—all three, basically, in slightly different styles—say the same thing. What is the source on which the Ra’avad is objecting? It’s a Talmudic passage. And they say there as follows—they make this distinction from the Talmud, I won’t go into the details because for us it’s just an example—they say this: there can be two situations. There can be a situation where there is a storm at sea and the storm is about to break the ship. Now, I can’t manage to save myself because there is a heavy cargo on the ship; I can’t sail quickly enough, say, and escape the area of the storm, for example. That is one case. Another case: there is no storm at all, the sea is calm and quiet. It’s only the weight of the cargo that is about to sink the ship, break the ship, and drown it. What is the difference between the two? So say all these commentators on Maimonides: this is what Maimonides means to say. Maimonides also knows the Talmud that the Ra’avad brings. But Maimonides says: that Talmudic passage that the Ra’avad brings, which says that the financial burden must be divided among everyone, is talking about a situation in which the storm at sea is about to sink the ship, not the cargo. The cargo is only what prevents me from saving myself from the storm. So there, the cargo is not the pursuer. Who is pursuing me, who is drowning me? The storm, not the cargo. The cargo is only my means of saving myself; throwing the cargo is only my means of saving myself. Why should I throw only one person’s cargo? So let’s all share, or let’s compensate the one whose cargo we throw overboard. But in a place where the cargo itself is about to drown me, then the cargo is the pursuer. It is not that I am saving myself with someone else’s property. Someone else’s property is pursuing me. So that—what are you talking about? That property is certainly ownerless for this purpose. I can throw it overboard in order to save myself. That property is endangering me; I can burn it. Here there is no longer any question of symmetry. So this distinction is exactly the distinction: what about a situation where the storm at sea is about to drown us, and I can save myself only by throwing overboard my fellow’s cargo? That is exactly the case of “be killed rather than transgress” in murder. What happens there? The gentile is the storm, some external factor that puts us into the bind. Now true, I can save myself from that bind if I kill the other person. I am forbidden to kill the other person. Absolutely forbidden. Why? What makes me preferable to him? Of course, if the other is property, then of course I may throw it overboard; I do not have to lose my own life. But I have to pay, because he—the owner—is no more at fault than I am, so I have to pay. That is when the storm, like the gentile, comes and threatens us. But where that cargo itself is pursuing, then this is the law of pursuer. This is not the law of one who saves himself at the cost of his fellow’s life; this is the law of pursuer. In a situation where it is the law of pursuer, that property is as good as destroyed, ownerless; you can do whatever you want with it, because that property is threatening me. What do you mean? I will destroy it in order to save myself. So this is an exact example of the same implication that we see in cases of life and death; the same thing also applies in monetary law, it is the same distinction. Be that as it may—okay, I…

[Speaker B] Let’s assume there’s one crate like this and this.

[Rabbi Michael Abraham] No, say there’s only one crate, for simplicity’s sake.

[Speaker B] Not that they happened to take…

[Rabbi Michael Abraham] No, no, not by chance. Say there is only one heavy crate on the ship and it belongs to one of us.

[Speaker B] So that’s what it’s about.

[Rabbi Michael Abraham] That’s what they’re saying. That’s what Maimonides is talking about. It fits perfectly in Maimonides, no problem, it’s not forced. The cargo is threatening to sink them, so you throw off that cargo which is threatening you.

[Speaker B] But I have the feeling that the Ra’avad is in any case trying to make some kind of accounting. After all, everyone has something, maybe not heavy, but something.

[Rabbi Michael Abraham] But that isn’t endangering anyone. The assumption is, say, that there is one very, very heavy thing and everything else is negligible. It doesn’t matter right now; we’re only looking for a conceptual, theoretical picture. What does this mean? Let’s summarize for a moment where we are. What we have up to this point is this: when there is an equation in which we have to decide whether to take the life of A or the life of B, and neither one’s blood is redder than the other’s, then there is some principle of remaining passive. Passive omission is preferable. There is no way—I cannot perform any active deed to take his life. Why? Because the situation is symmetrical. When is it nevertheless possible to act in favor of one at the expense of the other? Only when the situation is no longer symmetrical. How does that happen? Either when the other is a fetus, or when the other is the one pursuing, the one who created the equation; in any case, only when the situation is not symmetrical. So let’s return to the question with which we opened. If indeed the important parameter here is the question of symmetry, what happens when there are two pursuers? Each one is pursuing the other to kill him. If the whole point is simply that there is no symmetry, here there is. There still is. Even though each one is trying to kill the other, nevertheless the situation is symmetrical. Seemingly, according to what I have said until now, we should really return here to the principle that passive omission is preferable. Because indeed, who says this one’s blood is redder than that one’s? This kind of passivity. Even though both are wicked, both are guilty, each one wants to kill the other—true, but since it is both of them, I still have no way to decide because the situation is symmetrical. So the principle of “who says your blood is redder” returns, and it would be forbidden to intervene. That is the approach that says that when there is mutual pursuit, there is no law of pursuer; the law of pursuer falls away. This approach is based on the principle that the whole significance of the law of pursuer is only the breaking of symmetry. It is only a way to decide against that reasoning of “who says your blood is redder.” Well, that is basically…

[Speaker B] This picture of mutual pursuit—you would always ask the question of who started.

[Rabbi Michael Abraham] I don’t know who started. I arrived in the middle. I don’t know who started.

[Speaker B] They both want to kill each other. So the second one is being pursued. Right.

[Rabbi Michael Abraham] If you don’t know—say it’s a duel in Paris in the eighteenth century, they’re both standing there with pistols, and in another second they draw and shoot. For example. It doesn’t matter right now; it’s a theoretical question.

[Speaker B] In a moment we’ll see that it’s not so theoretical.

[Rabbi Michael Abraham] So what follows from this? What follows in practice is that in a situation of mutual pursuit there is no law of pursuer. Right? In the midrash with which I began, I said that I think it appears that even in a situation of mutual pursuit there is a law of pursuer. What does that really mean? It means that apparently the picture I have drawn until now is not the full picture. It is not true that what distinguishes the law of pursuer from the law of one who saves himself at the cost of his fellow’s life is solely the breaking of symmetry. There is something more here. What is that something more? The Talmud says that if Reuven is pursuing Shimon to kill him, and in the course of this he broke vessels or tore silk garments, then he is exempt. Exempt from paying. Why? “He incurs the greater penalty.” Since he is liable to death, when a person is liable to two punishments, only the more severe punishment is imposed. One does not die and pay.

[Speaker B] And that also applies to the burglar who comes in through a tunnel. What? That issue is also said, I think, about the burglar who comes in through a tunnel. Yes.

[Rabbi Michael Abraham] One who comes in through a tunnel and a pursuer are the same thing. The burglar who comes in through a tunnel is the source for the law of pursuer. The Talmud in tractate Sanhedrin brings the source for the law of pursuer from there. There are some medieval authorities (Rishonim) who want to argue that these are two different laws; it depends on a dispute among medieval authorities (Rishonim), but the plain meaning of the Talmud is that this is the source for the law of pursuer. In Sanhedrin. Earlier I brought a passage from tractate Bava Kamma about “she stretched out her hand,” that’s something else. So what does the Talmud actually say? That if there is a pursuer who, in the course of the pursuit, caused damage, he is exempt from paying. Why? “He incurs the greater penalty.” How can that be? “He incurs the greater penalty” is a principle that says that when two punishments fall on one person, only the more severe one is imposed. One does not die and pay. If you are liable both to death and to payment, then only the death penalty is imposed on you, not the payment. But what does that have to do with applying such a thing to the law of pursuer? The pursuer is not liable to death. It is permitted to kill him in order to save the pursued, but there is no liability of capital punishment resting on him. Here I come to your point. There is no liability of capital punishment resting on him, so how can you apply “he incurs the greater penalty”? “He incurs the greater penalty” applies only when there are two punishments imposed on one person. Then we remove the lighter one and keep the more severe one. But if—but—but no death penalty is imposed on a pursuer. Am I a religious court? I kill the pursuer. What am I, a religious court? No, so this is not a capital punishment. What is imposed on me is only to save the pursued, to kill the pursuer in order to save the pursued. I am permitted to kill him. What is this, an obligation? Is he liable to death? Is this a punishment? Fine—but he is not liable; there is a commandment to save the pursued, not a commandment to kill him. After all, certainly if I could save him by injuring one of his limbs, I would be forbidden to kill him. I might even be killed for that. The question is…

[Speaker B] What the Rabbi said was regarding someone who tries to kill the pursuer and on the way broke…

[Rabbi Michael Abraham] No, no, no—the pursuer himself. The pursuer himself. Reuven is pursuing Shimon and wants to kill Shimon, okay? While running, he broke some plates belonging to Levi. Reuven. Reuven. Reuven the pursuer, during the chase, broke some of Levi’s plates. Okay? So he is exempt. It doesn’t even matter that there is a third party. He himself—he ran to pursue him, broke them, and in the end didn’t even kill him.

[Speaker B] It doesn’t matter whether he killed him

[Rabbi Michael Abraham] or not in the end.

[Speaker B] It matters very much. Why? Why yes? Because I apply the more severe punishment when I—

[Rabbi Michael Abraham] No, but there is no punishment here for murder.

[Rabbi Michael Abraham] If in the end he killed him, that would still be two separate acts, so there would be no “he incurs the greater penalty.” Since he killed him half an hour later when he met him. He broke the vessels earlier. It has to be simultaneous in order to be exempt. That won’t help. The exemption is because of the law of pursuer, not because of the murder that happened later.

[Speaker D] Because a third or fourth person can kill Reuven now, and then Reuven—since there is a death sentence over him on the one hand, and at the same time he broke vessels—can kill him. Right, right.

[Speaker B] But he can—no, there’s no punishment on him at all.

[Rabbi Michael Abraham] So that’s what I’m asking; we are still at the stage of the question. Again. Fine, that’s true. Good question. And that’s what I’m asking. What do we see from here? What we see from here, as the author of Afikei Yam and several later authorities (Acharonim) say—what Yossi said earlier—is what? That the law of pursuer is a kind of punishment.

[Speaker B] A kind of act of the court.

[Rabbi Michael Abraham] Yes. Meaning, when I kill the pursuer, that is the imposition of a punishment on the pursuer. It is not only that I am allowed to kill him in order to save the pursued—it is a punishment. How can one understand such a thing? After all, I am not a religious court. What, I can impose capital punishments on people? I’m not a religious court. Certainly not a court of twenty-three, which is required in order to impose death. So what then? The logical conception is this—and here there is a dispute among medieval authorities (Rishonim) that perhaps this depends on, but I’m not getting into the details right now. The logical conception is this: what is the alternative? Not to kill him? If I don’t kill him, then he will kill the pursued. And then what? Then he will become liable to death as a murderer. Right? If all the conditions are met. Yes, if all the conditions are met. So the Torah tells me: don’t be an idiot. Meaning, don’t just stand there saying, well, I’m not a religious court, so what can we do? Should we let him kill the pursued, and then bring him to court and kill him too? That way both of them will die. So they tell you: listen, in such a case, you are the court. But what does it mean that you are the court? Not only that you kill him—if he were not fundamentally liable to death for the murder, maybe we would not permit you to kill him. But since for murder, if it is carried out, he is liable to death, then considerations of efficiency and logic tell us that there is no point in waiting until he murders and then bringing him to court so that the court can kill him. They tell you: you are now the emissary of the court; kill him now, in place of the death penalty he is going to get. Why? So that at least the pursued will be saved. What sense is there in leaving him to kill the pursued so as to bring him to court afterward? Therefore the Torah needs a verse. You asked earlier why a verse is needed—this is what the verse says. The verse says that in such a case, every person who sees such a situation is the court. Not only that—that is one novelty. A second novelty is that a death penalty is imposed on him. Not only that—that is one novelty. The second novelty is that a death penalty is imposed on him before he murders. After all, he has not murdered, so what punishment is he getting? And he also will not murder if I succeed in killing him, so he also will not murder. I am imposing the death penalty on him for an act that he would do if I did not impose the punishment. This is not an ordinary punishment.

[Speaker D] But what about a pursuer who is a minor? Wait, but the thing you are saying is the thing that leads you to the first point, but the first point is not understood. A person has authority to be like the rebellious son—that’s a special novelty of the Torah, judged based on his future. But here, because you know he is about to kill, it is permitted to kill. Yes. There is a special law of saving the pursued; it comes from saving the pursued, not as a punishment. No, clearly there is an element of saving the pursued.

[Rabbi Michael Abraham] But the reason of saving the pursued tells me that therefore they now let me kill him as a punishment. Why do they let me do this now and not wait until he kills the pursued? In order to save the pursued. But fundamentally, what I am doing—in order to save the pursued—they empower me to be the emissary of the court and impose the death penalty on him now. Right, the reason is to save the pursued, that is obvious. But in order to save the pursued they tell me: listen, don’t wait until he kills him, so that he dies, and then take him to court and the court will kill him—that is what the normal judicial procedure should have been. They tell you: in order to save the pursued, we are going to step outside the limits of ordinary Jewish law. And what will we do? Two things. First, we will decide that he is already liable to death from the stage of pursuit. Otherwise, seemingly, liability to death is only after he has murdered.

[Speaker D] That also means it cannot be a punishment. Why? The whole concept of pursuit being a punishment, and then “he incurs the greater penalty.” Is the rebellious son a punishment? “Judged based on his future” was brought as an example. But here they kill him not as a punishment for what he did.

[Rabbi Michael Abraham] In the case of the rebellious son, that’s something else. But here, no. Here it is a punishment. A punishment that he deserves—a punishment.

[Speaker D] But he didn’t do anything. He pursued in order to murder.

[Rabbi Michael Abraham] He pursued in order to murder—

[Speaker D] So for that he deserves punishment.

[Rabbi Michael Abraham] Attempted murder—there is such a punishment also in our civil law, in our criminal law; and in the Torah too there is a death penalty for that. For attempted murder? Yes.

[Speaker D] Attempted murder. It doesn’t make sense, it doesn’t make sense that your whole source for killing him is only in order to save.

[Rabbi Michael Abraham] Right. If it were something obvious, I wouldn’t have needed this whole lecture until now. So what I’m saying is that contrary to the simple understanding—we usually understand that the whole reason one may kill the pursuer is simply to save the pursued, that’s all, not punishment or anything. That is obvious, and I also agree—that is the simple understanding. But you see that the Talmud does not understand it that way. And I am trying to explain the logic that underlies what we see in the Talmud. We see in the Talmud that there is “he incurs the greater penalty.” That does not fit with that conception. So what I am trying to suggest—not I, later authorities (Acharonim) say this—is that this is an advance imposition of punishment, an early one, even before he did the act. Perhaps it is punishment for the attempt—however you formulate it, there are somewhat different formulations—and I am empowered to be the emissary of the court. Why? Of course, in order to save the pursued. But what do they do in order to save the pursued? They don’t just tell you, kill him—there is no such thing. You cannot kill someone who is not liable to death. So what? The Torah says: from My perspective, he is liable to death now. And you are now the emissary of the court. And you will kill him now. Why? In order to save the pursued. Now, if that is really so, then it turns out that he is now liable to capital punishment. Therefore, “he incurs the greater penalty.” Therefore he is exempt from payment for the vessels. But notice what follows here. What follows here in practice—let’s return to the symmetrical case—where there are now two pursuers, each after the other. If the Torah imposes a death penalty on a person already at the moment that he is pursuing the other, then the reason it is permitted to kill him is not only because there is no symmetry, not only that. Rather, because he is liable to death; the Torah says that he is liable to death. So now I have two people liable to death. In a moment we’ll see whom—that’s another good question—but we’ll see in a moment. But in such a situation, according to the conception I’m presenting now, it is the opposite of what I said before. Before, the conclusion was that since both are pursuing one another, this is indeed a symmetrical case. True, there are pursuers here, but since it is a symmetrical case, we are still stuck with the Talmudic reasoning of “who says your blood is redder.” Now I am saying no. The permission to kill the pursuer is not only because the symmetry has been broken, but because he deserves death, he is liable to death; it is a punishment. If so, there are two pursuers here, and there is punishment on both of them. Now of course this is not simple. What does it mean, punishment on both? We already said the goal is to save. After all, the goal is to save the pursued, otherwise they would not just give me authority to be the emissary of the court and kill people. And here, whom am I saving? The answer is: I am saving—if I kill one, the other will be saved. But then the question arises: whom do I choose? That we still do not know. Once there is a symmetrical situation, there is no way to know. Right? So whom do I choose? That is a problem; we’ll soon see what to do with it. But still, there is a conception here that is different from the previous conception. And in a moment we will see very, very practical implications in actual cases. There is a first conception that says that when two are mutually pursuing one another, the law of pursuer is nullified, it lapses, because this is a symmetrical situation. That is the conception that sees the law of pursuer solely as a consequence of breaking the symmetry. Once there is mutual pursuit, there is symmetry; there cannot be a law of pursuer. That is the first conception. The second conception says no: the law of pursuer is not because of the breaking of symmetry. The law of pursuer is the execution of a death penalty; he is liable to death. So what difference does it make if there is another one who is also liable to death? Does that mean he is not liable to death? What does that have to do with it? Both are liable to death. So according to this conception, when there is mutual pursuit, both of them are subject to the law of pursuer, unlike the previous conception. Of course I still have not said what we do. If both are subject to the law of pursuer, then what—kill both of them? Obviously that makes no sense. After all, the whole purpose of the law of pursuer is to save the pursued. To kill them both—what did I do? I threw out the baby with the bathwater. I killed him in order to save him, and now I kill him too. So then why did I kill the first one? That makes no sense, right? So we have to know how to decide. That is a separate question. But notice that this is something else. And I will now show you the implications. It seems at first glance that the halakhic result is the same result. If neither is pursuing, then of course I touch neither one. If both are pursuing, I have no way to decide, and it makes no sense to kill them both, so maybe again I touch neither one. So seemingly the result is the same result. But that is not true. Why? Because if, say, I can find a way to decide—for example, by making a lottery between them, just a lottery, casting lots—what did you say? In a moment we’ll see; I’m not sure that it’s possible, in a moment I’ll explain why. Let’s say I make a lottery. If this is a situation in which neither of them has the law of pursuer upon him, a lottery can’t help at all. Why? Because a lottery cannot impose on someone the law of pursuer when it is not there. Right? He is not liable to death; I have no permission to kill him, so what help is a lottery? But according to the second conception, both are subject to the law of pursuer. I have permission to kill either one of them; I simply have no way to decide whom to choose. So a lottery will choose. I’ll make a lottery, and whoever comes out in the lottery I will kill, because here the lottery does not need to create the permission to kill. The permission to kill already exists; there is a law of pursuer. I just have a problem that I cannot choose, so I will solve that by a lottery. According to the first conception, I have no permission at all to kill either one of them. The law of pursuer lapses in the symmetrical case. There is no law of pursuer on either one, so a lottery will not help. A lottery cannot impose on someone the law of pursuer even though he is not liable to death. Let me now show you why all these pilpulim matter. This case of mutual pursuit usually comes up in two practical situations. One situation is fetal reduction, and the second situation is Siamese twins. Situations of medical dilemmas. Fetal reduction means that in the woman’s womb there are several fetuses—say two, for the sake of discussion. And if both are left inside, both will die. Meaning, the pregnancy will not be able to sustain both of them so that they are born safely. What happens in such a case is that seemingly we have to decide to kill one of them and the other will be saved. But there is no way to decide—which means, who is preferable to the other? There are two here, a symmetrical situation—what do we do with that? So there are those who want to argue that perhaps there is mutual pursuit here. Each one is pursuing the other because he is causing the other’s death. Now the whole question is what do we do in mutual pursuit? If in mutual pursuit there is no law of pursuer at all, then there is still nothing to do. But if in mutual pursuit there is a law of pursuer on both of them, and I simply have no way to decide which one to kill, then I will make a lottery. The second case is the case of Siamese twins. With Siamese twins we are talking about two—not necessarily fetuses; we are talking about people who have been born, they can even be adults. There are adult Siamese twins. But there are situations in which there are two twins who are joined. They share some organs—a heart, say, one for both of them, or something like that. And the clear medical assessment is that no such pair will live more than nine months. In certain situations under discussion—this is a known situation, familiar—and in that situation they will not live more than nine months; both will die. The only possibility of saving them is to do a separation surgery. And then what—what is “separation”? To take the one heart that exists and give it to one of them and leave the other to die. That is called “separation,” in refined language. So now the question is whether one may do such a thing, and suddenly we are in questions of pursuer. Now with Siamese twins the situation is of course more complicated, first because these are not fetuses. And killing them is much more fully within “you shall not murder.” It is a difficult problem. Fetuses, according to most opinions, are not included in “you shall not murder.” And second, with Siamese twins there are all kinds of situations. There are situations in which the heart clearly belongs to one of them and the other is parasitic. You can define it medically, say—the heart naturally belongs to one of them and the other somehow feeds from him too, he is parasitic. Then it is pretty clear whom to choose. Meaning, you need to kill the parasite in order to leave the first one alive. But what happens in a symmetrical situation? I am talking about a symmetrical situation. By the way, there was such a symmetrical case a year ago—where was it? At Tel HaShomer. That is exactly what stirred me to deal with this topic. In the near future an article I wrote about it is supposed to appear as a result of that case. And when I tried a bit to clarify what the positions of the halakhic decisors are, it turned out that all the halakhic decisors, as one man, say that in a symmetrical situation it is forbidden to touch them. Forbidden to touch them, and one must leave both of them to die. Notice carefully what the implication is. That means both of them will die. Meaning, if I intervene now, then one will die and the other will remain alive. The decisors say: do not touch them in a symmetrical situation; it is the prohibition of murder, you cannot touch them—and leave both of them to die. In my humble opinion this cannot be right; it is not right. We’ll see what the reactions to the article are; I don’t know, maybe I’m missing something. But it is simply unacceptable, both in terms of sources and in terms of logic. In terms of logic too it is unbearable, but also in terms of sources. What?

[Speaker B] There is the law of a mortally wounded person and all kinds of…

[Rabbi Michael Abraham] What? There is a lot there. Rabbi Moshe Feinstein has a very long discussion—not in a responsum; I think it wasn’t published as a responsum. There was a case in Philadelphia of two twin girls born like this, Siamese twins, and around it there was a very broad halakhic discussion with Rabbi Moshe Feinstein, and his two sons-in-law were sitting there; they were asked in real time what to do. But there there was asymmetry, so they ruled to sever the parasitic one—to kill her, as it were, with no choice—and leave the other. But it is clear from the discussion that if the situation had been symmetrical it would have been forbidden to touch them. Good, so now we have to decide what happens in such a case. What happens in such a case is this: if we decide that symmetrical pursuit, mutual pursuit, has no law of pursuer at all—this too I think is not necessary, but for the moment, in terms of what we agree on here, let’s suffice with that—then in such a situation there is no law of pursuer, I have no permission to kill anyone, and since there is no one here who is defined—there is no way to break the symmetry as we said earlier. After all, that is the approach. If you say that the law of pursuer lapses in the mutual symmetrical situation, that means that all that determines here is only whether there is or isn’t symmetry, right? That is basically the determining parameter. Now if there is a way to break the symmetry, then fine—then the parasite must be killed and the other left alive. If there is no way, and it really is a symmetrical situation, there is no law of pursuer, there is nothing to do. Even if I make a lottery, what will that help? We are now talking about living people. With fetuses, they permit it. With fetuses they permit it because killing them is not the prohibition of “you shall not murder.” So the halakhic decisors permit it; most decisors permit fetal reduction.

[Speaker B] How do they do it with fetuses?

[Rabbi Michael Abraham] What? When you put your hand in and decide, apparently in some way—I don’t know exactly how it works in practice—they try to check who has the better chance, okay.

[Speaker B] The question is whether you are allowed to choose the sex of the fetus.

[Rabbi Michael Abraham] Fine, one can discuss many ethical questions here, but let’s leave that for another time. So, wow, I really have to finish. Yes, so if I understand that there is no law of pursuer on either side, then there is nothing I can do. Even a lottery won’t help, because a lottery cannot impose the law of pursuer where it does not exist. If someone is forbidden to be killed, then the fact that he came up in a lottery does not make it permitted to kill him. A lottery cannot turn someone into a person condemned to death. But if both are subject to the law of pursuer—if both are subject to the law of pursuer—then I am allowed to kill either one of them. The whole point is that I have no way to decide which one. They are both in the same position. So I’ll make a lottery. And if I make a lottery, I can decide whom I kill. Now what happens when these are fetuses or people whom I cannot ask? With adults I can still ask; they themselves can do the lottery. But if I do the lottery—say in the case of small children there is no way to ask them—I need to do the lottery for them, or make the choice for them. Then apparently one must rely on some sort of assessment that says that the other option is that both will die. So clearly they too, if I could ask them, would say to me: listen, make a lottery, at least one of us will be saved. But then notice carefully: it seems to me that the lottery must be fair. I cannot choose whomever I want. That is why I said earlier that I don’t think… Why? Because I need their authorization. And in order—for after all, if there is someone whose fate is sealed from the outset because I want the other, he won’t agree. I need their consent in order to have the right to make a lottery. That consent can be given only if each of them sees some chance for himself, meaning in a fair lottery. Therefore I think that only a fair lottery can be used. No, without that it will not be permitted.

[Speaker D] Now some have argued: why does this whole method of lottery give any right to kill someone at all? What is the difference between a lottery and your deciding? What does the lottery help?

[Rabbi Michael Abraham] If I decide, who says they authorize me to decide? If I cast a lot, then the Holy One, blessed be He, will decide. So they place their lives in His hands; then there is some understanding that they consent to this. Yes, and the plain meaning of a lot—if we speak there about a lot, I’m not getting into it now—but what is the significance of a lot? Because there is a Sefer Hasidim that says that one may not cast lots regarding lives, so that too needs to be checked. But I worked all that out there in the article; whoever wants will be able to read it. So that is basically the bottom line. Just one more note: a claim came up in a discussion I had—I had various arguments with various people about this—and the claim was that according to Jewish law a person is forbidden to surrender his own life in order to save another. A person is forbidden to surrender his own life in order to save another according to most decisors; even to enter into possible danger is forbidden in order to save another from certain danger. I see someone drowning in a river and I have to jump in there to save him, but there is a reasonable chance that I will drown. If I will certainly drown, it is absolutely forbidden. If it is uncertain whether I will drown, there are glosses of Maimonides in the name of the Jerusalem Talmud that say this is permitted; according to most decisors it is forbidden, and that is also how the Jewish law was ruled in the Mishnah Berurah. Forbidden. So they say: what do you mean? Even they themselves—not only to authorize me—even they themselves cannot decide, either one of them, that he surrenders his life in order to save the other. But that argument does not even get off the ground, of course. Why does that argument not get off the ground? Because he is not surrendering his life in order to save the other; he is surrendering his life in order to save himself. After all, his only chance of being saved is for me to make a lottery. Without that, he too will die; both of them will die.

[Speaker C] Think about someone standing in a river because that’s his only chance, maybe, to stay alive.

[Rabbi Michael Abraham] Any chance at all—I said fifty percent. So now I ask you: say a person is standing in a burning house, okay? And now he wants to jump down. And now they tell him: you are forbidden to jump because there is a fifty-percent chance that you’ll die. Can anyone say such a thing? In the house he will certainly die, of course; he’ll burn there. What are you talking about? Obviously he is allowed to jump, right? Exactly that is what happens here. Meaning, if he remains in the current situation he certainly dies. Now what does he say? Let’s make a lottery; fifty percent I remain alive—that is the jump. So can anyone say that I am forbidden to jump down in order to save myself from the fire? There is no such thing. Obviously I am allowed to. So it is obvious that they too are allowed to authorize me. If they themselves are allowed to do this, then they are also allowed to authorize me. Okay, I’ll stop here, because I want to devote another five minutes to Rabbi Yugel. So I’ll stop here. Maybe a point that somewhat touches on these things I found in one of his articles.

[Speaker B] Wait, and what is the Jewish law regarding mutual pursuit?

[Rabbi Michael Abraham] What do you mean, what is the Jewish law? Rabbi Shlomo Eiger writes in his novellae on Ketubot, in the novellae of Rabbi Akiva Eiger on Ketubot 33, that a mutual pursuer is not a pursuer. Now this is based on a very questionable inference in the Talmud there, and it also depends on a dispute among medieval authorities (Rishonim), as he himself writes. But that is the only source people bring on this issue. I think that from this midrash—there may be disagreement here—whether there is a source from this midrash, the reasoning definitely says that this is not—certainly not necessary. In my opinion, if we understand it as a punishment and not as the breaking of symmetry, then the plain simple reading is that if there are two pursuers, then obviously both are pursuers. If you understand it as the breaking of symmetry, then he is right. So therefore it depends on that question. And as for it being a punishment—there is evidence from the Talmud. Afikei Yam discusses this at length in part 2, siman 40, and more. Good, so what is the Jewish law? I think the Jewish law is that one is obligated to intervene, not merely permitted. Either I’m right or I’m not, I don’t know. I don’t know. The rulings are that it is forbidden to intervene. Those are the rulings of all the great halakhic decisors I have heard, but I do not understand it; I don’t think it is correct, I don’t know. Okay, fetal reduction.

[Speaker C] No, fetal reduction

[Rabbi Michael Abraham] Yes, because with fetuses there is no “you shall not murder.” I’m talking about Siamese twins. In selective fetal reduction too, there are those who forbid it, and there most halakhic decisors permit it. In any case, we were talking about Rabbi Yugel. He has an article in the Jubilee Volume; it was in Netivei HaMidrashia and afterward in the Jubilee Volume. There he discusses something that maybe can also be connected to the topic of this lecture. It’s well known that he was not in the habit of expelling anyone from the Midrashia. Even very unruly guys were not expelled. Sometimes they would send them into exile to a yeshiva for a certain period, but they wouldn’t throw anyone out. And the rumor—the rumor said, and afterward I think he told me this once too—that the Chazon Ish told him not to do it. And therefore, therefore he really didn’t throw people out. Afterward I found here an article of his where he actually writes this. And he says as follows. He gives an introduction about the complexity of the profession of education and so on. “We, who in all our conduct and activity are guided by the four sections of the Shulchan Arukh, which encompass and include all the paths of our lives, understand that it cannot be that we would not find in them instructions, guidance, and laws of education that would direct and guide us in fulfilling the great commandment of ‘and you shall teach them diligently to your children.’” So he says, “In my educational role I merited to clarify several educational topics that I brought before the Chazon Ish of blessed memory. And I see it as an obligation to present his approach in one of the difficult issues with which every place of Torah struggles. The problem is distancing a student. I formulated the question as follows: There are several problematic students who may deteriorate if I distance them, but if we allow them to continue studying in the yeshiva, they may corrupt others.” Yes, a classic problem that many institutions struggle with. “His answer was this, his answer was: This is a grave problem of matters of life and death. In the continuation of the conversation he asked me, ‘How have you acted until now?’ So I said, ‘I distanced a few, but experience proved that there was one class where the difficult students left on their own and the rest finished successfully in every respect.’” Meaning, in short, leaving them there didn’t cause harm. So he says, “The Chazon Ish responded and ruled decisively: Experience does not override the Shulchan Arukh. It is forbidden to distance a student. You are not obligated to run after him, but if he clings to the place, you are not permitted to distance him.” That’s what he wrote, that’s what he told him, and apparently that’s indeed what he did afterward. “You must devote all your strength to educating him and supervising his behavior,” and so on. Basically, there is some dimension here of the law of a pursuer; after all, that’s the dilemma. On the one hand, there is a problem of saving oneself at the cost of another person’s life—these are matters of life and death in the spiritual sense. You throw out a student—why? He goes off, meaning he will deteriorate—in order to save the others, right? That is saving oneself at the cost of another person’s life. On the other hand, so why is it permitted to do that? After all, it’s forbidden to do that. Maybe he is a pursuer? Meaning, if he stays there he is going to corrupt the other people, the rotten apple, the well-known rotten-apple parable, and since he is going to corrupt the others, then he is a pursuer. So if that’s the case, it is permissible to save the others at the expense of the pursuer’s life. That is exactly this dilemma on the spiritual plane. So he writes there that in light of the Chazon Ish’s ruling, he looked in the Shulchan Arukh and in Maimonides, and let’s look for a moment at the page—here I brought two sources—and with this I’ll finish. Maimonides writes: “Torah is taught only to a worthy student, pleasant in his deeds, or to a simple one. But if he was going on a bad path, one brings him back to the good and guides him on a straight path and examines him, and afterward brings him into the study hall and teaches him.” Up to here, that’s the first part. What happens in the second part? “The sages said: Anyone who teaches a student who is unworthy is as if he threw a stone at Mercury, as it is said, ‘Like one who binds a stone in a sling, so is one who gives honor to a fool.’ ‘Honor’ means nothing but Torah, as it is said, ‘The wise shall inherit honor.’” So there are two parts here in Maimonides. The first part says that even if he is going on a bad path, one brings him back to the good and so on, and in the end brings him into the study hall. And the second part suddenly says that one who teaches an unworthy student is as if he threw a stone at Mercury. Why? After all, you’re saying that even an unworthy student, one who is not going on a good path, you have to work with him and in the end bring him into the study hall. And this can be resolved in different ways, yes. The question is whether that’s at the end or at the beginning. But this is his claim. Then he says: apparently one has to say that there are two situations regarding the same student. Meaning, there is such a student—if he is truly, on a basic level, willing to try to improve, he has distress, he has difficulties, he can’t do it, and there’s a chance it won’t succeed, but basically he is willing—then one has to keep him, try to work with him, and bring him into the study hall. If he himself does not want this, meaning he is not willing to cooperate, then yes—whoever teaches him is as if he threw a stone at Mercury. Meaning, we are speaking about that very same student himself, who is unworthy; the whole question is only what he wants. Then he brings proof for this from the Shulchan Arukh. The Shulchan Arukh combined these two laws of Maimonides into one law. It says: “Torah is not taught to a student who is unworthy; rather, one brings him back to the good and guides him on a straight path and examines him, and afterward brings him into the study hall and teaches him.” Meaning, it opens with “Torah is not taught to a student who is unworthy,” which is the second part of Maimonides. And then what is the alternative? Rather, one brings him back to the good, guides him on a straight path, and brings him into the study hall. So you see that we are speaking about the same type of student; it is not two types of students. It is the same type of student who—what?—one has to try to bring into the study hall. So basically this is his claim, what he said: if he clings to his place—what the Chazon Ish told him—that if he clings to his place, it is forbidden to throw him out, because he basically wants it. It may be that he won’t succeed, it may be that he will corrupt students, but if he wants it. This is called imposing himself at the cost of another person’s life. It is forbidden to do that. Those are already my terms following the lecture; he doesn’t write that. But if he doesn’t want it, then it’s simply the law of a pursuer—he doesn’t—then yes. Then anyone who teaches a student who is unworthy is as if he threw a stone at Mercury. That’s it, more power to you.

[Speaker B] Rabbi, even that is no longer a problem

[Rabbi Michael Abraham] In high-school yeshivas or also in yeshivas? Rabbi, regarding the rape there, now the question—maybe we’ll manage to get to it—could be that he is liable for punishment and exempt as one under compulsion? Then it’s still the same law, it’s still the same law. Because yes, a minor, because he is a minor, is exempt as one under compulsion, but not that he isn’t a pursuer—he is a pursuer. And a minor can also be a pursuer, so a minor also has the law of a pursuer,

[Speaker D] And that’s someone under compulsion who is liable for punishment afterward.

[Rabbi Michael Abraham] If I say that, obviously—it depends on a lot of conceptual analysis regarding the law of compulsion—but if that’s so, it can be applied to a minor as well. More power to you.