Author: devora

Excerpted from Rabbi Shmuel Goldin’s ‘Unlocking The Torah Text: An In-Depth Journey Into The Weekly Parsha- Devarim’, co-published by OU Press and Gefen Publishers

 

Poetry or Practicality 

Context
We have previously noted and discussed the tension created by the multilayered character of the book of Devarim (see Devarim 1). On the one hand, as we have noted, Devarim chronicles the poignant human drama of Moshe’s farewell to his people. Within his public addresses, this great leader waxes eloquent as he searches for words that will remain with his “flock” long after he is gone. On the other hand, Devarim is an integral part of God’s eternal law. As such, this text is bound by the rules that govern the interpretation of the entire Torah. Every word is essential; each phrase is divinely chosen to convey a particular eternal message to the reader. While this dual unfolding is felt throughout the book of Devarim, there are times when it rises more clearly to the surface, complicating the nature of specific imperatives appearing in the text. Two powerful examples of such commandments are found in Parshat Shoftim:

Tzedek tzedek tirdof, “Justice, justice shall you pursue, so that you will live and possess the land that the Lord your God gives to you.”
Tamim tihiyeh im Hashem Elokecha, “Wholehearted shall you be with the Lord your God.”

Questions
How are we meant to view commandments such as those quoted above? Are they general, spontaneous products of Moshe’s passion as he strives to penetrate the hearts of a listening people? Or are they mitzvot, or elements of mitzvot, divinely fashioned, like all other Torah imperatives, toconvey specific behavioral requirements across the ages? If the latter is true, what are those concrete requirements?

Approaches
The first and most important answer to our questions is clearly “ all of the above.” As we often have noted before, the Torah text unfolds on multiple levels simultaneously.

The narrative in the book of Bereishit, for example, chronicles the birth of a nation through the stories of individual families. The national saga coursing beneath the surface of these personal tales does not in any way diminish the poignant private journeys described therein.

Similarly, any halachic requirements conveyed by Moshe’s imperatives to the nation in the book of Devarim should not blind us to the dramatic passion reflected in his words. To fully appreciate this book of the Torah, we must always keep the scene of its unfolding before our eyes. An aged, powerful leader bids farewell to the people that he has shepherded from slavery to freedom. Powerful sentiments course through each sentence as Moshe shares his personal regrets with the nation over his inability to join in entering the land; desperately tries to teach final, critical lessons before his death; and delivers, one last time, words of encouragement, warning, support, remonstration and so much more. Clearly Moshe’s eloquent choice of words mirrors a myriad of personal emotions.

At the same time, however, these are words of Torah text and, as such, transcend the moments of their delivery. Concrete, eternal instructions are contained within the commandments shared by Moshe throughout the book of Devarim. Every phrase uttered by this great leader, no matter how dramatic, is therefore fair game for halachic analysis by scholars across the ages.The two phrases before us provide telling examples of the varied rabbinic approaches to Moshe’s dramatic words in Sefer Devarim.

I. Tzedek tzedek tirdof

A

The phrase Tzedek tzedek tirdof…, “Justice, justice shall you pursue, so that you will live and possess the land that the Lord your God gives to you,” appears at the end of the short opening passage of Parshat Shoftim. Serving as an introduction to the entire parsha, this three-sentence passage conveys the general admonition to establish a righteous system of governance upon entering the land.

B

While the scholars of the Talmud do not derive an independent mitzva from the words tzedek, tzedek tirdof, they do view this phrase as potentially broadening the Torah’s demand for justice in multiple ways. A number of interpretations in this vein are suggested in the tractate of Sanhedrin.

The rabbis open the Talmudic discussion by questioning the demands presented by two separate biblical verses. In the book of Vayikra, the Torah commands, “with justice shall you judge your fellow,”6 while the text in Devarim demands, “Justice, justice shall you pursue…” Perceiving seemingly contrasting requirements emerging from these verses, the rabbis ask: In which cases does “judging with justice” suffice? And in which cases must we “pursue justice, justice” with extra vigor?

Answering their own question, the scholars explain that through the use of these variations, the text challenges judges to follow their own instincts. In straightforward situations, where the facts match the judges’ internal perceptions; “judging with justice” will suffice. When the judges suspect deceit, however, they must dig deeper, moving past the apparent facts before them, as they “pursue justice” with further force. A judge cannot fulfill his task in pro forma fashion. He must always invest his full capacities as God’s agent in the administration of the law.

C

Rabbi Ashi demurs, negating the textual question raised by his colleagues. The two Torah passages are not in conflict, this sage argues, as the repetitive language in the phrase “Justice, justice shall you pursue” does not reflect a call for extraordinary effort in specific cases. At all times, a judge must apply himself fully towards the rendering of a just verdict. Instead, the reiteration “Justice, justice…” references the legitimacy of two distinct judicial paths: justice and compromise. Based upon the circumstances and the judgment of the bench, either of these paths can be followed.

Rabbi Ashi’s acceptance of compromise as a legitimate judicial path is carried one step further by another Talmudic scholar, Rabbi Yehoshua ben Korcha, earlier in this same tractate, Sanhedrin. Rabbi Yehoshua maintains that, when possible, a judge is obligated to negotiate or arbitrate a compromise between two disputants. To buttress his position, this scholar quotes the pronouncement of the prophet Zecharia, “Truth and a judgment of peace shall you execute in your gates.”

How, Rabbi Yehoshua asks, is a “justice of peace” attainable? One could argue that these two terms are mutually exclusive. Is it not true that when a decision is determined through strict justice, peace has not been achieved? One of the disputants will inevitably be dissatisfied the verdict.

What, then, is the “judgment of peace” to which the prophet refers? Obviously, answers Rabbi Yehoshua, the prophet is referencing the path of compromise.

Rabbi Yehoshua’s embrace of compromise as the preferred legal path, however, is not without controversy. In the same passage of Talmud, Rabbi Eliezer the son of Rabbi Yossi the Galilean maintains that a judge is absolutely forbidden to arbitrate a compromise. While disputants can certainly find a middle ground between themselves, Rabbi Eliezer maintains, once they approach a court for a ruling, strict justice must rule the day.

Strangely enough, Rabbi Eliezer’s position prohibiting courtroom compromise would seem to find support from the very sentence that Rabbi Yehoshua quotes to buttress his own position in support of such compromise: “Truth and a judgment of peace shall you execute in your gates.” For while conciliation satisfies the need for both “peace” and “judgment,” it does not satisfy the third component cited by the prophet, “truth.” If a judge arbitrates a compromise between two litigants, he does not arrive at the truth. He creates, in effect, a legal fiction through which neither of the parties completely loses. Such a fiction is an acceptable settlement, Rabbi Eliezer argues, only before the court becomes involved. Once the legal process is engaged, a judge can only choose one path. He is obligated to strive for the truth through the strict application of Torah law.

In spite of Rabbi Eliezer’s compelling argument against judicial negotiation, however, the halacha, as codified both in the Rambam’s Mishneh Torah and in Rabbi Yosef Caro’s Shulchan Aruch,11 adopts Rabbi Yehoshua’s embrace of compromise as the preferred courtroom path.

In the words of the Rambam,

It is a mitzva [for a judge] to ask the litigants, at the onset of the legal process, “Do you wish a legal ruling or a compromise?” If they desire to compromise, [the court] should effect a compromise between them. And any court that consistently effects compromise is a laudatory court about which [the prophet] states: “Truth and a judgment of peace shall you execute in your gates.” What justice is accompanied by peace? Let us say that it is [the justice of] compromise.

The halachic support of judicial compromise, even at the expense of the truth, mirrors the powerful priority placed upon shalom, interpersonal peace, in countless other scholarly texts. Most telling, perhaps, is the rabbinic decision to close the entire Mishna and, arguably, the two most important prayers in Jewish liturgy, the Amida and the Kaddish, with paragraphs focusing on the theme of peace. Furthermore, in the fashioning of these prayers, the rabbis apparently take their cue from God Himself. The divinely authored Priestly Blessing, pronounced daily by the Kohanim over the nation at God’s command, culminates with the prayer “May the Lord turn His countenance towards you and grant you peace.”

Halacha thus mandates that peace, the greatest of God’s blessings, must be aggressively pursued by God’s judicial agents in this world, even when that peace comes at the expense of truth.

D

Finally, yet another explanation for the phrase Tzedek tzedek tirdof is offered by the rabbis in the same Talmudic passage, based on the recognition that judges do not bear sole responsibility for the creation of a just society. As understood by the rabbis, the phrase Tzedek tzedek tirdof can be seen as the last in a series of directives issued by Moshe in Sefer Devarim concerning the essential reciprocal relationship between a society and its judges.

1. Moshe opens his very first farewell address, recorded at the beginning of the book of Devarim, by recalling instructions he had previously given both to the nation and its judges concerning the establishment of a just society: As we left Sinai, he reminds the people, I instructed you to choose appropriate judges. And I admonished those judges to apply the law with justice.
2. Now, as Moshe returns to the theme of governance at the beginning of Parshat Shoftim, he again sounds the call for respectful reciprocity: “Judges and officers shall you set for yourselves in all your gates.… And they will judge the nation with just judgment.” You, as a people, must do your part in creating a society built upon the administration of justice, while those whom you choose as leaders must administer that justice justly.
3. He then continues by admonishing the judges directly: “You shall not pervert judgment, you shall not show favoritism and you shall not accept a bribe, for a bribe will blind the eyes of the wise and make the words of the righteous twisted.”
4. Moshe closes with the declaration Tzedek tzedek tirdof, “Justice, justice shall you pursue, so that you will live and possess the land that the Lord your God gives to you.”
   This last sentence, the Talmud suggests, is not directed towards the judges at all. Instead, with the phrase Tzedek tzedek tirdof, Moshe turns his attention back to the nation by raising the concept of societal judicial responsibility to a new level. For, at this point, Moshe addresses potential litigants.

Tzedek tzedek tirdof, “seek out an exemplary court.” Do not twist the process of jurisprudence to meet your own personal ends. Do not search for a court that is clearly predisposed to your point of view. There is more at stake here than your own personal concerns. Pursue justice; seek out an unbiased, exemplary court. Even as litigants, you play a pivotal role in maintaining the seriousness with which the law is taken and ensuring the proper administration of justice throughout the land.

E

Building upon these Talmudic suggestions, numerous other legal interpretations of the phrase Tzedek tzedek tirdof are suggested by commentaries across the ages.

It remains, however, for the eighteenth-century German scholar Rabbi Shimshon Raphael Hirsch to remind us not to lose sight of the forest for the trees. For while Hirsch himself quotes a number of the legal Talmudic references cited above, he also interprets Moshe’s passionate charge to the nation as a general directive meant to define the moral character of his people’s society:

“Justice, justice shall you pursue, so that you will live and possess the land that the Lord your God gives to you.”
As the highest unique goal, to be striven for purely for itself, to which all other considerations have to be subordinated, the concept, “Tzedek, Right, Justice,” …is to be kept in the mind of the whole nation. To pursue this goal unceasingly and with all devotion is Israel’s one task; with that it has done everything to secure its physical and political existence.

A loyal halachist, Rabbi Shimshon Raphael Hirsch would be the first to acknowledge the importance of each legal detail gleaned by the Talmud from the verse Tzedek tzedek tirdof. At the same time, however, this visionary leader warns the reader not to overlook the power of Moshe’s words as a broad exhortation towards the overall establishment of a just society.

II. Tamim tihiyeh im Hashem Elokecha

A

The second of the verses before us, Tamim tihiyeh im Hashem Elokecha, “Wholehearted shall you be with the Lord your God,” appears in the middle of a paragraph in Parshat Shoftim prohibiting the practices of sorcery and divination.

Here the rabbinic divide becomes starker. For, as indicated above, although the rabbis debate the practical significance of the phrase tzedek, tzedek tirdof, they are united on one point. This dramatic statement does not constitute a new, unique mitzva. Moshe’s eloquent words convey, instead, an expansion on existing law.

When it comes to Moshe’s declaration Tamim tihiyeh im Hashem Elokecha, however, no such agreement exists. Instead, two fundamentally disparate approaches emerge from rabbinic literature.

B

At one end of the spectrum stand those authorities, such as the Ramban, who count the imperative Tamim tihiyeh im Hashem Elokecha as an independent positive mitzva, a separate one of the 613 commandments. This mitzva, these scholars maintain, obligates each Jew to recognize God’s sole awareness of and power over future events.

The approach of these authorities is based on consideration of the verse Tamim tihiyeh im Hashem Elokecha in context, as a positive iteration of the surrounding prohibitions against sorcery and divination. Through this declaration, the Ramban thus maintains, God commands the nation “to direct their hearts exclusively to Him; to believe that He, alone, is the Doer of all; that He knows the truth regarding the future; and from Him [alone] we should ask about that which is to come, from His prophets and pious ones.”

To buttress his approach, the Ramban cites biblical, Midrashic and Talmudic sources. Particularly telling is the parallel this sage draws between the verse before us and the opening imperative in a covenant between God and the patriarch Avraham at the dawn of Jewish history: Hit’halech l’fanai v’heyei tamim, “Walk before me and be wholehearted.” Here, too, God commands Avraham to remain steadfast in his rejection of the superstitious mores of the surrounding cultures. Be complete with Me, Avraham; recognize that I, and I alone, guide and control all that you see…

Puzzled by the Rambam’s omission of this obligation from his list of the mitzvot in Sefer Hamitzvot, the Ramban posits, “Perhaps the master [the Rambam] perceives this mandate as a general exhortation to perform the commandments and walk in the ways of the Torah…and therefore did not include it in his enumeration.”

“As is evident from the words of our sages, however,” the Ramban concludes, “the approach we have outlined [viewing this imperative as an independent commandment] is the correct one.”

C

At the other end of the spectrum can be found scholars such as Rabbeinu Bachya Ibn Pakuda who openly interpret the verse Tamim tihiyeh im Hashem Elokecha in general terms. In his introduction to his famous ethical work Chovot Halevavot (Duties of the Heart), Rabbeinu Bachya explains this biblical verse not as a unique mitzva, but as an overarching exhortation on Moshe’s part towards uniform ethical behavior throughout the life of each Jew: “And you should know that the intent and purpose of the precepts of the heart is to cultivate a complete harmony between our inner and outward actions in the service of the Lord.”

From Rabbeinu Bachya’s perspective, the imperative to be tamim (wholehearted) is a general one, mandating consistency between a person’s thoughts and actions. An individual whose words are at variance with his deeds, Bachya maintains, is not trusted by those around him. Similarly, if an individual’s service of God is marked by inconsistency and insincerity, if the intentions of his heart are contradicted by his words, if his inner convictions do not match his outward actions, his service of God will not be perfect.

Once again, we are reminded by a great luminary not to allow the details, important as they are, to blind us to the overarching power and passion of Moshe’s words. On a global level, Bachya argues, Moshe’s proclamation Tamim tihiyeh conveys a truth that courses through the entire Torah. An individual must be “wholehearted with God,” simply because God will reject insincerity.

Poetry or practicality? Passionate proclamations on the part of an aged leader, or concrete commandments to a people across time? Moshe’s eloquent declarations are both at the same time – text meant to be studied and taught on multiple levels at once. When we recognize this truth, the full beauty of the book of Devarim is revealed…

Excerpted from Dovid Lichtenstein’s Headlines: Halachic Debates of Current Events

Shooting Down a Hijacked Plane:  Killing a Few to Save the Lives of Many

 

The devastating tragedy of 9/11 introduced to the world a frightening new form of terrorism — the use of hijacked planes as torpedoes to blow up crowded buildings and skyscrapers, רחמנא ליצלן. The dreadful prospect of another 9/11-style attack gives rise to the difficult and ever so painful moral and halachic question of whether a hijacked plane may be blown up to save the civilians in the targeted building. If it is certain that the hijackers are steering the plane toward a building, would it be permissible, forbidden, or obligatory to fire a missile at the plane, killing the innocent passengers on board for the sake of saving the lives of the people down below?

 

I. Killing One to Save Many

Our point of departure in addressing this question is the Mishna’s discussion in Terumos (8:12) regarding a case in which enemies demand that the Jews in a town hand over a woman for them to rape, warning that they will otherwise rape all the women in the town. The Mishna rules that in such a case, the towns-people should refuse; they may not hand a woman over to the enemy even at the expense of the defilement of all of the town’s women.

The Tosefta in Terumos (7:23) addresses the similar case of enemies who demand that the Jews hand over one person to be killed, warning that they will otherwise kill all of the townspeople. In such a case as well, the Tosefta rules that the townspeople should refuse and submit themselves to murder rather than hand over a fellow Jew. However, the Tosefta then proceeds to note a critical distinction: “אבל אם ייחדוהו להם כגון שייחדו לשבע בן בכרי יתנו להן ואל יהרגו כולן.” The Tosefta rules that if the enemy identifies a particular Jew by name and demands that he or she be handed over to be killed, then the townspeople should acquiesce. The Tosefta points to the example of Sheva ben Bichri, a man who led a failed revolt against King David. Sheva sought refuge from David’s forces in the town of Avel Beis Maacha, and Yoav, David’s general, demanded that the townspeople hand him over. In such a case, the Tosefta rules, the townspeople should hand over the wanted person in order to spare the rest of the city.

The Tosefta then cites Rabbi Yehuda as clarifying that this applies only if the wanted person is in the city and would also be killed along with the rest of the townspeople if they refuse to hand him over. If, however, the situation is such that the townspeople would be killed instead of the wanted person and not along with the wanted person, then they may not hand him over to save their lives. It is only when the wanted individual is condemned to be killed regardless of the townspeople’s decision that they are permitted to hand him over to the enemy.

Rashi cites this Tosefta in his commentary to Sanhedrin (72b) in the context of a discussion regarding a woman whose life is threatened by a difficult labor. The Gemara establishes that if the infant had not yet exited the woman’s body, it may be killed to save the woman’s life, but once the head has emerged, the baby is considered a full-fledged living human being, and may not be killed to save the mother’s life.(1) Rashi raises the question of why this case differs from the situation in which townspeople are permitted to hand over a wanted individual in order to save their lives as long as the wanted individual was specifically identified by the enemy. Seemingly, in the situation of childbirth, there is also a “named’ individual — the newborn — who threatens the life of another person (the mother). Rashi explains that in the Tosefta’s case, the wanted individual would be killed regardless of whether the townspeople choose to hand him over. In the case of the newborn, however, the infant’s life is not at risk, and it is thus forbidden to kill the newborn to rescue the mother. (2)

This halacha is also addressed by the Talmud Yerushalmi (Terumos 8:10), which presents a debate between Rabbi Yochanan and Reish Lakish on the issue. Reish Lakish maintains that even if the enemy specifies a particular person by
name, the townspeople may not save their lives by handing that person over. According to Reish Lakish, the people of Avel Beis Maacha were allowed to hand over Sheva ben Bichri only because he was guilty of treason and thus deserving of death. Barring such exceptional circumstances, a town may not, according to Reish Lakish, hand over a person to the enemy to save their lives, even if the enemy demands specifically that person.

At first glance, it would seem that the question of torpedoing a hijacked plane hinges on this debate among the Amora’im. According to Rabbi Yochanan, although the passengers are innocent and certainly not deserving to die, their lives threaten the lives of the hundreds or thousands of people in the targeted skyscraper. Thus, just as in the case in which the enemy requests a particular resident of the town, where — according to Rabbi Yochanan — the people may hand him over since he would die either way, in our case, in which the passengers are bound to be killed regardless of whether the plane is shot down, the plane may be destroyed to spare the people below. Reish Lakish disagrees with this ruling and forbids killing a person to spare others even if he would in any event be killed.

This analysis, however, does not help us in our quest for a halachic conclusion, as no consensus has been reached among the halachic authorities on this issue. The Rambam (Hilchos Yesodei Ha-Torah 5:5) codifies Reish Lakish’s ruling and forbids handing over a wanted individual to save the other townspeople’s lives unless that wanted person is guilty of treason, as in the case of Sheva ben Bichri. The Hagahos Maimoniyos, as well as the Beis Yosef (Y.D. 157), question why the Rambam accepts Reish Lakish’s view, in light of the fact that the Halacha always follows Rabbi Yochanan’s rulings in his disputes with Reish Lakish. Indeed, as the Beis Yosef notes, the Rash and the Ran follow Rabbi Yochanan’s view. (3)  Both opinions are cited by the Rama (Y.D. 157:1), leaving this debate unresolved. (4)

 

II. Whose Blood is Redder?

However, we may find a basis for allowing blowing up the plane in the Hagahos Ha-Ramach, who, commenting on the Rambam’s ruling, questions the rationale underlying the unanimous ruling regarding a case in which no particular person is named. He notes the Gemara’s comment in Sanhedrin (74a) that the reason why one may not kill to save his own life is מאי חזית דדמא דידך סומק טפי. Loosely translated, this means that one may not assume that his “blood his redder” — that is, that his life is more valuable — than that of his fellow. Killing another person to save one’s own life reflects the presumption that his own life is worth more, and since no person can make such an assumption, the Torah forbids rescuing oneself at the expense of another human being’s life. The Ramach notes that this rationale clearly does not apply in the case in which townspeople must decide between handing over one person and being killed. Under such circumstances, we can indeed determine which misfortune is graver, as whomever the people choose to hand over to the enemy would otherwise be killed along with the rest of them. This is not a decision of whose blood is redder, but rather a decision between having one person killed or having him and many others killed. Thus, since the rationale of מאי חזית דדמא דידך סומק טפי does not apply, we should seemingly apply the standard principle allowing the suspension of Torah law for the sake of saving human life.

The Kesef Mishneh answers that in truth, the rationale of מאי חזית דדמא דידך סומק טפי does apply even in such a case. Any individual selected to be handed over could legitimately argue that his blood is no less “red” than that of any others, and there is thus no justification for choosing him to die over any other person in the town. As such, the townspeople have no right to choose any one person over others if he was not singled out by the enemy.

The Kesef Mishneh then acknowledges that his answer does not resolve the Ramach’s question as it applies to Reish Lakish’s view — that even if the enemy specifies the person whom they want to kill, the townspeople may not hand him over (unless he is deserving of execution for a crime he committed). In this case, it seems, since the individual will in any event be killed, the rationale of תיזח יאמ does not apply and the townspeople should be allowed to save themselves by handing over the named individual. The Kesef Mishneh suggests that according to Reish Lakish, the rationale of מאי חזית is not the real reason that one may not save himself by killing another; rather, this law was in truth transmitted through oral tradition and is therefore relevant even when the reasoning of מאי חזית does not apply. (5)

We may also suggest an additional answer. As mentioned earlier, the Mishna applies this ruling even to situations in which the enemy demands not a life, but a woman to defile. Even in such a case, if no particular woman is named, the townspeople are forbidden from choosing a woman, even if this means that all women in the town will be defiled. This would seem to prove that this halacha has nothing at all to do with the issue of מאי חזית דדמא דידך סומק טפי, of whose blood is “redder.” Apparently, the Mishna and Tosefta deal here not with the prohibition of רציחה (murder), but rather with a more general prohibition against assisting an enemy by handing a fellow Jew over to them to be killed or raped. Thus, even if an argument could be made to permit handing over a fellow Jew on the grounds of פקוח נפש (saving human life), as the Ramach contends, it is nevertheless forbidden due to the separate prohibition against assisting enemies bent upon killing Jews.

This analysis directly affects the question concerning a hijacked airplane. In such a case, the enemies are not demanding any action on our part, and thus there is no issue of assisting a foe. Rather, there is simply the question of whether we may kill a small number of people who are bound to die anyway in order to save a larger number of people. As the Ramach observed, it seems clear that this would be permissible, and there is thus room to argue that the plane can and should be shot down in order to save the people in the building below.

III. Killing a Fetus to Save the Mother

Another basis for authorizing shooting down the hijacked aircraft is the ruling of the Panim Meiros (3:8) concerning a case that appears to involve the precisely identical question. He addresses the situation in which a fetus’ head has already exited the mother’s body and the doctors have ascertained that the infant is bound to die, and the mother will die as well if she completes the delivery. The Panim Meiros rules that this situation is akin to the case described in the Tosefta in which the enemy specifies a particular person whom they seek to kill and the townspeople are allowed to hand over the wanted individual since he is going to die in any event. Similarly, if the newborn is bound to die regardless of what happens to the mother, then it may be killed so that the mother may continue living. (The Panim Meiros concludes on an ambivalent note, however, writing, וצ״ע להתישב בדין זה.)

Surprisingly, the Panim Meiros here appears to assume the view of Rabbi Yochanan — that it is indeed permissible to hand over a person wanted by the enemy if he is specified by name and would be killed either way. As noted, however, this issue is subject to a debate among the Rishonim and the Rama cites both opinions, seemingly leaving this question unresolved. (6) In truth, however, we might contend that even Reish Lakish would agree in such a case that the infant may be killed for the sake of rescuing the mother.

The basis for this claim is the approach taken by the Chazon Ish (Sanhedrin 25, ד״ה ירושלמי תרומות) to explain the debate between Rabbi Yochanan and Reish Lakish. He claims that according to Rabbi Yochanan, if the enemy names a person whom they want handed over, that individual attains the status of a רודף (“pursuer”), as his life poses a direct threat to the rest of the townspeople. As such, he may be handed over to the gentiles, just as any רודף may be killed for the purpose of rescuing his victim. Reish Lakish, however, maintains that the wanted person cannot be considered a רודף unless there is a particular reason why he was chosen, such as in the case of Sheva ben Bichri, who was wanted because he instigated a rebellion. Whereas Rabbi Yochanan views the wanted person as a רודף under all circumstances, since he in effect threatens the towns-people, Reish Lakish contends that he cannot be considered a רודף if he was selected arbitrarily. He attains this status only if there is a substantive connection between him and the enemy’s threat. Thus, if the enemy randomly selects one person to be handed over, that person does not, in Reish Lakish’s view, obtain the status of רודף.

According to this approach, it would appear that the ruling of the Panim Meiros could follow even Reish Lakish’s view. The newborn’s existence directly threatens the mother’s life, and as such, it has the status of a רודף and may therefore be killed. This is not a random connection, but a natural, physical reality; the woman’s life is endangered by the infant, and under such circumstances, even Reish Lakish would agree that the infant should be killed to save the mother’s life.

Accordingly, in the case of a hijacked plane as well, Reish Lakish would agree that the passengers are regarded as a רודף with respect to the people in the building. They were not randomly selected to die in place of the others; rather, they pose an immediate threat in light of the fact that the plane is headed toward the building and threatens its occupants and the people in the area. In this case, there is a clear and direct connection between the passengers and the threat posed to the people below, and thus according to all opinions, they have the status of רודף and it would be permissible to destroy the plane to save the people on the ground.

IV. Diverting a Missile

We might also approach this issue in light of the question addressed by the Chazon Ish (שם ד״ה ויש לעיין) concerning the permissibility of diverting a missile away from a large group of people toward one person, so that only one life is lost. In discussing this case, the Chazon Ish observes that handing over a Jew to an enemy is inherently an act of cruelty which, under the circumstances, has the effect of rescuing a large number of people. In the case of a missile, the precise opposite is true — the act of diverting its path is fundamentally an act of rescue, which happens in this situation to result in a person’s death. In light of this distinction, the Chazon Ish suggests, even Reish Lakish would agree that one may divert a missile off course to save the lives of a large group of people, even if this would cause it to kill somebody else. (7)

The Chazon Ish cites in this context the story of Lulinus and Papus (which appears in Rashi’s commentary to Ta’anis 18b), two men who falsely confessed to a murder in order to save the Jews from the government’s decree. The Gemara lauds Lulinus and Papus for their selfless act, setting a clear precedent for killing a small number of people for the purpose of rescuing the lives of a large number of people. In the situation of the missile as well, we might conclude that it would be permissible to divert a missile toward one individual for the sake of rescuing the lives of many. It should be noted, however, that a clear distinction exists between the story of Lulinus and Papus and the case under discussion. Lulinus and Papus were condemned to execution along with the rest of the Jews, and thus they would have been killed even if they had not made their false confession. Their willingness to sacrifice their lives thus does not set a precedent relevant to the case of a missile, in which rescuing the large group requires killing someone who would not have otherwise been killed. (8)

It is not entirely clear how the Chazon Ish’s distinction would affect the question concerning the hijacked aircraft. On the one hand, shooting down the plane is an act of הצלה, rescuing the targeted building, much like diverting a missile is an act of rescuing the targeted group of people. On the other hand, one who diverts the missile does not directly kill the victim, whereas in the case of the hijacked plane, the passengers are killed directly through the firing of a missile. We thus cannot reach any definitive conclusions regarding our question on the basis of the Chazon Ish’s discussion.

V. חיי שעה

Another consideration that must be taken into account is the fact that shooting down the plane will cause the passengers to die several minutes earlier than they would otherwise have died. While it is true that they are going to die regardless of whether the plane is shot down or allowed to continue to its target, allowing the plane to continue flying grants them an additional few minutes of life. Do these extra moments warrant forbidding shooting down the plane, compelling us to allow it to continue into a skyscraper and to kill hundreds or thousands of civilians?

This issue appears to be subject to debate among the halachic authorities. The Yad Avraham commentary to the Shulchan Aruch (Y.D. 157:1) asserts that the Tosefta’s ruling allowing the townspeople to hand over a wanted person applies only if the enemies would otherwise kill the entire town immediately. In this case, since the wanted individual would die at the same time regardless of whether he is delivered to the enemy, we allow the townspeople to rescue themselves by handing him over. If, however, refusing to hand him over will result in the townspeople’s deaths at a later time, then the Tosefta’s ruling does not apply, and the people may not hand the person over to be killed, as they would thereby be denying him short-term survival.

The Yad Avraham’s ruling is predicated on the assumption that we may not sacrifice a person’s חיי שעה — the brief period he still has to live — even for the sake of the long-term rescue of others. According to the Yad Avraham, no distinction is drawn between short-term and long-term rescue. Thus, just as it is forbidden to kill one person to save another, it is forbidden to deny a wanted individual the brief period in which he could still remain alive by handing him over to the enemy.

By the same token, it would be forbidden to blow up a hijacked plane in order to rescue the people below, even according to the ruling of Rabbi Yochanan. Since destroying the plane would end the passengers’ lives several moments before they would otherwise be killed by the plane’s collision with the building, this would amount to killing some people for the sake of rescuing others, which is clearly forbidden.

However, the Chazon Ish (Sanhedrin 25, ד״ה ומש״כ בגליון) disputes the Yad Avraham’s view and maintains that once the enemy singled out a particular person for execution, it makes no difference whether he would otherwise be killed immediately or at some future point.

This debate hinges on the question of how to classify חיי שעה — whether or not it is equivalent in all respects to long-term survival. A number of Acharonim address this question in the context of the famous debate between Rabbi Akiva and Ben Petura (Bava Metzia 62a) concerning the case of two people traveling in a desert, one of whom has no water while the other has enough water to sustain only one of them. Ben Patura rules that the fellow must share his water with his companion, even though they will then both die, rather than drink his entire ration to sustain himself at the expense of the other man’s life. Rabbi Akiva, however, citing the verse וחי אחיך עמך (“Your fellow shall live with you”— Vayikra 25:36), establishes the rule of חייך קודמין לחיי חברך, which means that one’s life takes precedence over his fellow’s life. In his view, the traveler with the jug of water may drink as much as he needs to sustain himself, even if this results in his fellow’s death.

Several Acharonim note that Ben Petura appears to fully equate חיי שעה with long-term survival. In his view, one may not ensure his own long-term survival at the expense of his fellow’s short-term survival, and the traveler with the jug must therefore share the water with his fellow so that his fellow can live for another few moments. Although Rabbi Akiva disputes this ruling, he does so only due to the inference from the verse, וחי אחיך עמך, indicating that were it not for this inference, he would accept Ben Petura’s position and require sharing the water. This discussion thus perhaps lends support to the Yad Avraham’s view equating short-term survival with long-term survival, such that one may not save a life by killing someone who will in any event die later.

By contrast, the Shevus Yaakov (3:75) asserts that long-term survival indeed overrides short-term survival, drawing proof from the Gemara’s ruling in Avoda Zara (27b). The Gemara there establishes that although it was considered dangerous to seek medical treatment from idolaters (as they were regarded as potential murderers), it was permissible to seek medical treatment from them for a terminal illness. Since the patient in any event is certain to die, he may risk his life by seeking treatment from a dangerous physician. The Gemara explains, חליי שעה לא חיישינן  — meaning, we do not take into account the short-term survival that one potentially forfeits by taking this risk, as this brief period of life is not significant. Based on this, the Shevus Yaakov proves that short-term survival is not deemed halachically equivalent to long-term survival, and in some respects is considered insignificant. (9)

Clearly, however, we may distinguish between the Gemara’s ruling in Avoda Zara and the discussion between Rabbi Akiva and Ben Petura. In Avoda Zara, the Gemara addresses the question of whether an individual may put his own short-term survival at risk for the sake of possible long-term survival. In such a case, it indeed stands to reason that the prospects of long-term survival warrant risking the patient’s short-term survival. Rabbi Akiva and Ben Petura, however, address the question of whether one’s long-term survival overrides another person’s short-term survival, and the answer, in principle, is that it does not. With regard to our question, then, we might indeed draw proof from Rabbi Akiva and Ben Petura that one may not sacrifice another person’s short-term survival to secure his own long-term survival, as the Yad Avraham claims.

As mentioned, however, the Chazon Ish disputes this ruling. In his view, we may indeed apply Rabbi Yochanan’s ruling to our case to allow shooting down a hijacked airplane to save the people on the ground, even though this means ending the passengers’ lives several minutes earlier than they would have otherwise ended. (10)

VI. Conclusion

Based on what we have seen, there is room to allow and even require shooting down a hijacked plane to protect the people in the targeted building. In addition to the fact that several Rishonim accept Rabbi Yochanan’s view, allowing handing over a wanted person to rescue a town, we noted that even Reish Lakish would allow shooting down the plane, as the passengers have not been randomly “selected.” Moreover, since this situation does not involve the issue of assisting an enemy threatening the Jewish people, it is likely that the entire discussion between Rabbi Yochanan and Reish Lakish does not apply and the rationale of מאי חזית is likewise inapplicable, thus warranting killing the few to rescue the many.

 

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1. The infant is not considered a רודף (“pursuer”), who may be killed to save the person being pursued, because, as the Gemara states, משמיא קא רדפא לה— it is God, and not the newborn infant, who threatens the woman’s life.
2. See also Rashi’s commentary to Shmuel II 20:22.
3. The Meiri in Sanhedrin also appears to accept Rabbi Yochanan’s ruling.
4. The Bach writes that the Rama appears to side with the Rambam’s ruling, but the Chazon Ish (Sanhedrin 25, ד״ה והר״ש) notes that the Bach’s claim has no basis.
5. This answer is also given by the Chemdas Shlomo (O.C. 38). The question of whether or not this halacha is based upon מאי חזית has been discussed at length by numerous Acharonim and yields several important ramifications. For example, the Meiri (Sanhedrin 72b) rules that if the enemy did not name a particular person, the townspeople may save themselves by handing over a טריפה (a person suffering from a terminal illness who is certain to die). He clearly works with the assumption that it is the rationale of מאי חזית that would prevent them from handing over someone to be killed and that this rationale does not apply to a טריפה. Similarly, the Minchas Chinuch (295–296:24) rules that one may kill a fetus (in a manner that does not endanger the mother) in order to save his own life. (See also Chazon Ish, Hilchos Rotzei’ach 1:9; Tiferes Yisrael, Boaz, Ohalos, end of chapter 7; and Iggeros Moshe, C.M. 2:69:4, ד״ה וגם לענין אונס) By contrast, the Noda Bi-Yehuda (Tanina, C.M. 59) rules that one may not save his life by killing a טריפה or a fetus. See below in our discussion of חיי שעה.
6. This may be the reason for the ambivalence expressed by the Panim Meiros at the end of his discussion.
7. The Chazon Ish then acknowledges that the reverse argument could be made: those who hand over a Jew to the enemy do not commit a direct act of murder, whereas when one diverts a missile away from its target towards a person, he directly kills the person who is ultimately struck by the missile. When the question is viewed from this angle, we might conclude that to the contrary, even Rabbi Yochanan would agree that it would be forbidden to divert the missile.
8. This point was made by Rav Eliezer Waldenberg in Tzitz Eliezer (15:70).
9. The context of the Shevus Yaakov’s discussion is the case of a gravely ill patient who, according the doctors’ prognosis, cannot survive in his condition for another day or two, but there is a procedure that could cure him of his illness, but might also kill him within an hour or two. The Shevus Yaakov draws proof from the Gemara’s discussion in Avoda Zara that the patient may take the risk and undergo the procedure, since in any event he is going to die and the חיי שעה that he may be forfeiting is insignificant.
10. One might examine the possible relevance of the Chazon Ish’s ruling with regard to the controversy surrounding organ transplants, which can generally be performed only when a patient is brain dead but still breathing. Contemporary halachic authorities have debated whether or not brain death constitutes halachic death such that organs may be removed from a brain dead patient. One might perhaps argue that regardless of this question, the organs may be taken because the donor’s חיי שעה does not override the recipient’s long-term survival. Even if we consider the brain dead patient halachically living, he is at very least a הפירט and has only a short period of time left to live, in which case his short-term survival should not take precedence over other patients’ long-term survival according to the Chazon Ish’s ruling.
In truth, however, we must distinguish between the situation addressed by the Chazon Ish, in which the enemy has stated their intent to kill the person in question, and the case of an ill patient. Clearly, it is inconceivable that we may remove the organs of any elderly hospital patient since in any event he or she has only חיי שעה in contrast to the young patients in need of a transplant. The Chazon Ish’s ruling was said in reference to a case in which the person is condemned to death, and thus allowing him some extra moments of life should not, according to the Chazon Ish, come at the expense of the lives of all the townspeople.