Q&A: Halakhic Autonomy When It Harms Others
Halakhic Autonomy When It Harms Others
Question
Does halakhic autonomy have enough force to permit harming another person, or must someone who wants, with justification, to harm his fellow rely on accepted Jewish law (or on a wager that this is the true law in Heaven)? For example, if he studied and reached the conclusion, against the accepted ruling, that in a certain situation one is obligated to strike his fellow in order to separate him from transgression, is he permitted to strike him? And what if a commandment applies to him—for example, he reached the conclusion, against the accepted ruling, that he must circumcise his son today and not postpone the circumcision because of some danger. Can that fellow, or the infant, say to him: “I maintain in accordance with the accepted Jewish law, and you are not a party to decide this for me”?
Answer
When a person performs an action that affects others, he cannot make decisions on his own and rely on his own approaches. This is what I’ve often called here territorial considerations. You make decisions in your own territory, not in other people’s—even if your decisions are justified, certainly when they are justified only in your eyes, but even if they are completely justified. For example, Rashi’s view that a person may not save himself with another person’s money: the decision is justified according to all opinions, since theft is set aside in the face of danger to life, and the other person is obligated to spend his money to save me. And nevertheless, Rashi writes that one has no permission to do so. I explained that his reasoning is that although the decision is justified, you do not have the right to make decisions about my money, even if those decisions are justified. I brought many other examples of this.
By the way, this is apparently the main problem with Yigal Amir’s act. Even if he was convinced that Rabin was a pursuer, and ostensibly he was obligated to save all of us from him, because there were disagreements about this you cannot act according to your own view in matters that affect others.
By the way, I once explained that a litigant’s admission and seizing property on behalf of a creditor when this harms others are based on the same principle. Not like the common understanding, that when it harms others there is no credibility to the admission, but rather because when it affects others one cannot act on the basis of one’s own subjective considerations.
Discussion on Answer
[B. In your answer you distinguished between something being justified in your eyes and being completely justified. But the example there is an internal halakhic ruling that applies territorial considerations, not the application of territorial considerations as a general rule of decision in a case of halakhic doubt. So the question is really whether applying territorial considerations as an external decision rule (and not as an internal rule) is categorical, or only when the halakhic ruling is subjective in virtue of autonomy.]
A. Correct, but in my opinion these are correct extensions.
B. I don’t see a difference. Even if you are betting that you are right, make bets on your own territory and not on mine. If we are talking about a case where I myself am betting that I’m wrong, there’s not much novelty in that.
Of course, there is a limit to this. In a place where it is clear that Jewish law says something, and there is no significant dispute about it, a person cannot just say that he thinks otherwise. For example, a pursuer cannot say to the rescuer that in his opinion there is no law of pursuer. Because there is. Also, the pursuer himself is violating another person’s territory. If someone sentenced to death were to argue before the religious court that in his opinion he did not desecrate the Sabbath, that is a more borderline case. True, there he would be exempt under the law of coercion in matters of opinion, but the fact that exemption arguments are needed means that in principle they can kill him. For example, if he knew that the Sanhedrin held differently from him, that probably would not be a legitimate exemption claim (unless he disputes the obligation to obey the Sanhedrin). Of course, if a person argues about how many lashes he deserves, that has nothing to do with him at all. That is a decision of the religious court that concerns only them. A religious court, by its very role, intervenes in other people’s territory. That is what it is there for.
As a rule, the status of a religious court is different from the status of a private individual. They represent the public as a whole (including the person in whose territory they are intervening), and therefore this is not intervention in someone else’s territory (see column 471 about killing oneself).
C. No, because we are dealing with a religious court. See the previous section.
I didn’t understand the question in your last message.
A. Applying territorial considerations to the laws of a pursuer seems, at first glance, more novel than in the laws of saving life, because the whole topic of a pursuer deals with invasion of territory. Even more so regarding the laws of circumcision, since the father is certainly obligated in circumcision, and now he has rulings of his own regarding the laws of the commandment imposed on him. That already seems to me like a surprising novelty. I’m not sure how to sharpen the point, but it seems there are two extensions here of territorial considerations, right?
B. Is your answer only about subjective autonomy, or in general? By subjective autonomy I mean a person who reached a conclusion from the sources, but he is betting that the truth is probably not with him but with the other, more accepted opinions. Autonomy in general—I’ll call it objective autonomy here—is when a person reached a conclusion from the sources and is also betting that the truth is probably with him, and when he comes to the World to Come they’ll come out to greet him with hugs for having corrected their mistakes. If someone holds that the truth is with him, and that very truth tells him to invade someone else’s territory, do you apply territorial considerations even there, imposed from above like a mountain held over them?
C. According to this, in disputes about punishments, whether Torah-level, rabbinic, extra-legal, or in the laws of fines, they should always rule leniently, no? And is the Jewish law the same regarding other values—that no one should ever be punished on grounds of “desert” as a result of a personal or public opinion if the person being punished does not think the punishment is justified? (If he does not recognize the transgression at all, then according to your view of punishment according to one’s own standards, he indeed would not be punished on grounds of desert. I’m asking about a case where he absolutely recognizes the transgression but disputes the punishment, and he thinks he should get only one lash and not seven.)