Halachos of Living and Dying
January 5, 2010
Halachos of Living and Dying
A recent discussion prompted by Maggid Uriel Brulé’s Weekly Midrash focused around the issue of whether a person or persons may be handed over to those who would kill them in order to save the lives of the greater community. Here is the passage at hand:
- It was taught: If a company of people are threatened by heathens, ‘Surrender one of you and we will kill him, and if not we will kill all of you,’ they should all be killed and not surrender one soul of Israel. But if they specified a particular person, as in the case of a criminal, they should surrender him and should not all be killed. R. Judah said: If the victim is secure within the city and the group is not, then they should endeavor to save him; if everyone is within the city, then they should surrender one person to them and not be all slain. For example: ‘Ulla the Conspirator – a notorious criminal – was wanted by the government. He arose and fled to R. Joshua b. Levi at Lydda, whereupon officers were dispatched after him. R. Joshua argued with him and urged him to surrender, saying, ‘Better that you should be executed rather than that the whole community should be punished on account of you.’ He allowed himself to be persuaded and surrendered to them. Now Elijah used to speak with the rabbi, but when he acted thus Elijah ceased to visit him. The rabbi fasted thirty days, after which Elijah came to him, and he asked him, ‘Why did you absent yourself?’ ‘Am I then the companion of informers?’ Elijah retorted. ‘But is this not a law in Talmud: “If a company of people,” etc.?’ ‘And is that a teaching for the pious?’ he retorted. ‘This should have been done through others and not through you!’ Midrash Rabbah – Genesis XCIV:9
The Issues
• Is it permissible to give up a person to be killed to save the lives of others?
• Is it permissible to save one’s own life at the expense of another?
• When does the one singled out to die becomes a Rodef, a pursuer of the innocent?
• Does a person’s Chayei Sha’ah, brief span of life, have the same priority as an “extended life’?
• En Dichin Nefesh Mipnei Nefesh– One life may not be set aside for another.
Give us one of your number whom we will kill
The Talmudic precedent cited in the Midrash above is found here among Tosefta of Terumot 7:13
- A company of men is confronted by non-Jews. They say “Give us one of your number whom we will kill. If you do not, we will kill all of you!” Even though all of them will be killed, let them not deliver a single Jewish soul into their hands. However, if they specified a single individual, as for example in the case of Sheva ben Bichri (II Samuel 20) then they may deliver him up and not themselves be killed. Rabbi Shimeon ben Lakish said, ” This is so only when that person is guilty of a capital offense, as was Sheva ben Bichri.” Rabbi Yohanan said however, “He may be delivered up, even though he is not guilty of a capital offense.”
Machlokes
Usually when there is a discrepancy between the decisions of Rabbi Shimeon and Rabbi Yochanan, the law is decided in favor of Rabbi Yochanan. In this case, it is not so clear, because the Rambam (Maimonides) ruled, with weighty authority, in favor of the decision of Rabbi Shimeon. The commentators have a lot of problems with this, and it has come down to us in the Halacha as a Machlokes Rishonim, a legal dispute amongst the medieval Talmudists.
The Rambam ruling in favor of Rabbi Shimeon (Yesodei HaTorah 5:5) found two basic requirements are necessary to hand over a person to be killed in order to save the lives of others. The first, the person being handed over must be expressly specified/designated by the enemy forces. And two, the person who has been designated must be guilty of a capital offense, which itself carries a penalty of death. (In which case the specified person is going to die anyways)
One life may not be exchanged for another
Why must the person being handed over be specified as such by those making the demands? It is a matter of “En Dichin Nefesh Mipnei Nefesh” “One life may not be exchanged for another.” and is derived from the following passage in Sanhedrin 74a:
- “A certain man is recorded as having come before Raba saying, “The governor of my town has ordered me, go kill so and so– if you do not kill him, I will kill you.” Raba answered, “Let them kill you, but you may not kill the other man. Who can say that your blood be redder than his? Perhaps his blood is redder than yours.””
Thus, if no one is specifically designated by the enemy for handing over, it is forbidden to hand anyone over, because this would necessitate choosing one life over another. However, if the enemy has specifically singled out an individual or individuals for handing over to be killed, this presents several new factors that are not present when there is no one specified for handing over.
Chayei Sha’ah/ the Brief Span of Life
The first of these factors is that the enemy intend to kill the specified individual whether he is handed over or not, so the specified individual is certain to die, whatever happens. When there is no specified individual, any person who is not chosen to die is indirectly responsible for the death of those who handed over, for in exempting themselves, they have condemned others in their place. But when the enemy has specified who precisely they want handed over for killing, there are no others who will live at the condemn’s expense, because in any event the enemy is going to kill the one singled out whether they are handed over or die with the entire group. The big issue here then, is that of the condemed’s “Chayei Sha’ah”, their “brief period of life” that they would have lived if not handed over until they are finally killed by the attackers. The Halacha asks the question of whether a person’s Chayei Sha’ah has lesser or equal status to another person’s extended life– is it permissible to deprive someone of their Chayei Sha’ah in order to prolong another person’s extended life? The Maharam, the Chazon Ish (Yoreh Deah 155) and Igros Moshe (Yoreh Deah 2:60) say yes, it is permissible.
A Pursuer of the Innocent
Rav Feinstein (Igros Moshe) raises the issue that the person who has been singled out by the attackers acquires the status of a Rodef, a pursuer of the innocent with deadly intentions. (the Rodef may be killed by anyone in order to save the life of the pursued– Rambam Hilchot Rotzeakh 1:7) There is a distinction between a Rodef who intends to kill of his own free will and a Rodef who is an “Ones” a rodef by compulsion– but in either case, the Rodef may be killed if it is certain that BOTH the rodef and the victim will die otherwise. In the case where an individual has been singled out for killing by the attackers, and that individual is certain to die regardless of whether he is handed over by the group or the group dies with him, then the specified individual is certain to die in any event, and if they are not handed over, the innocent are also certain to die, thus Rav Feinstein argues that the person who is an Ones, a Rodef by compulsion may be killed to save the lives of the innocent.
The Igros Moshe resolves the Controversy
Rav Feinstein’s commentary in the Igros Moshe goes a long way to reconciling the seeming conflict inherent in the Rambam’s deciding this Halacha in favor of Rabbi Shimeon, by implying that a the specified individual’s status of a Rodef is effectively the same as someone who is guilty of a capital offense and eligible for death, and therefore by applying the Rambam’s ruling on the halachos as pertains to the Rodef it is found that the Rambam is actually agreeing with Rabbi Yochanan’s opinions in the end afterall.
See also:
- Rambam Yesodei HaTorah 5:5
- Beis Yosef, Rema Yoreh Deah 157:1
- Yad Avraham, Taz Yoreh Deah 157:1
- Maharam, Chazon Ish Yoreh Deah 155
- Igros Moshe 2:60
- Shakh, Khoshen Mishpat 163:11
- Toesfta, Terumot 7:13
- Yerushalmi Terumot 8:4
- Rashi, Sanhedrin 72
- Raba Sanhedrin 74a
- II Samuel 20
Rabbi Sarah Etz Alon
, Eber-Lat Living Laboratory
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