Contents
Introduction
15
Chapter One
PREFACE
Chapter Two
ALL MUST BE KILLED RATHER THAN
17
SURRENDERING ONE
23
Chapter Three
“BE KILLED RATHER THAN TRANSGRESS”
Chapter Four
ONE VERSUS SEVERAL IN “BE KILLED RATHER
THAN TRANSGRESS”
Chapter Five
35
45
DIVERTING AN ARROW FROM SEVERAL
PERSONS TO ONE
Chapter Six
63
PREFERRED STATUS FOR A GROUP IN RESCUE
FROM INJURY
69
Chapter Seven
SELF-SACRIFICE TO RESCUE ONE OR MANY
Chapter Eight
SELF-SACRIFICE IN “TEMPORARY LIFE”
Chapter Nine
SACRIFICING ONE FOR THE MANY IN WAR
Chapter Ten
RESCUE OF THE JEWISH PEOPLE
Chapter Eleven
SELF-SACRIFICE TO SAVE THE JEWISH
PEOPLE
Chapter Twelve
SUMMARY
149
193
Appendixes 191
Indexes
271
English Abstract
vii
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129
81
95
117
English Summary
A. Introduction
The purpose of this book is to ascertain whether Jewish law recognizes
a difference in the rescue of the individual, the rescue of many
persons, and the rescue of the entire Jewish people. In particular, we
shall discuss sacrificing the life of the individual for his fellow man’s
life. Does it matter whether the sacrifice is made on behalf of an
individual, on behalf of many persons, or on behalf of the entire
people?
This question has a number of aspects: Is it permitted or
prohibited for a person to “volunteer” to rescue another when doing
so entails sacrifice of his own life? And are there instances when such
sacrifice is not only permitted but obligatory (and might it be
permitted in such instances to “volunteer” a person against his will)?
Among the considerations: When discussing human life, are we
capable of “weighing the value” of one person against the value of
several persons? Does “quantity” have significance when we are
discussing human beings? Or must we conclude that “quantity” is
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irrelevant—that since every person is a world unto himself, his value
is infinite, and there is no room for considerations of quantity?
B. One Life May Not Be Given Priority over Another
To begin considering these questions, we turn first to a source that
establishes that “one life may not be given preference over another.”
In the tractate Ohalot, the Mishnah declares:1
When a woman has difficulty in giving birth, we dismember the
fetus within her womb and extract it limb by limb, because her
life has priority over its life. If the majority of the fetus has
emerged, we may not touch it, as one life may not be given
priority over another.
While the principle of the Mishnah is clear, the question that remains
is whether the law will differ when against the one life of the newborn,
there stand several lives. Will we then give priority to the several lives
over the one?
On the basis of this mishnah, we cannot answer our question. We,
therefore, turn to the Tosefta in the tractate Terumot, from which we
learn that not only is it prohibited to give priority to the lives of many
persons by actively killing one person, but that to save many lives it
is prohibited even to cause one person’s death indirectly.
C. All Must Be Killed Rather Than Surrendering Even
One
In the tractate Terumot of the Tosefta, we find:2
When heathens say to a group of Jews, “give us one of your
group and we will kill him, and if not, we will kill you all,” all
must be killed rather than surrendering even one Jew.
s1
2
Mishnah Ohalot 7:6.
Tosefta Terumot 7:20.
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Here many persons face the danger of being killed if they do not
surrender one person; nevertheless, the Tosefta rules that one person
may not be surrendered to save the many. Since it is prohibited to
surrender one person to save many, it is certainly prohibited to
actually kill one person to save many.
The Tosefta, however, qualifies its rule that it is forbidden to cause
the death of one person to save many. The passage quoted continues:
But if they specified which person is to be surrendered, as they
specified Sheva son of Bikhri,3 they surrender him—so that they
all not be killed.
Moreover, in the Jerusalem Talmud,4 R. Yohanan and R. Shimon ben
Lakish debate the meaning of the mishnah’s “if they specified” as it
applies to the case of Sheva son of Bikhri:
R. Shimon ben Lakish says, “he must be guilty of a capital
offense as was Sheva son of Bikhri.” R. Yohanan says, “[the
qualification applies] even if he is not guilty of a capital
offense.”
According to R. Yohanan, then, to save the entire group, it is permitted
to surrender a specified person, even if he is not guilty of a capital
offense.
In the dispute between R. Yohanan and R. Shimon ben Lakish,
Maimonides rules according to the opinion of R. Shimon ben Lakish.5
Maimonides’ opinion is not accepted by all authorities, however. In
his Beyt haBehirah, R. Menahem haMe’iri rules according to the
opinion of R. Yohanan6.
The same ruling is given by R. Efrayim haKohen of Vilna, who
establishes priority for the lives of many persons over the life of one
person.7 R. Efrayim haKohen discusses the case of a young man who
3
4
5
See text next to note 12.
TJ Terumot 8:4.
Maimonides, M.T., Yesodey haTorah 5:5. Kesef Mishneh, ad loc., explains that
Maimonides has several reasons for accepting the opinion of R. Shimon ben
Lakish.
6 R. Menahem haMe’iri, Beyt haBehirah, Sanhedrin 72b (ed. Ralbag, p. 109).
7 Resp. Sha’ar Efrayim 72.
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withdrew from an agreement to marry a particular woman. As a
consequence, a ban was issued against any woman’s marrying him.
The young man subsequently requested that the ban be revoked, and
there was reason to believe that were it not revoked, he would cause
considerable damage to the members of the community. R. Efrayim
haKohen discusses whether the potential danger constitutes sufficient
cause for revoking the ban. In his discussion, he writes, on the basis
of R. Yohanan’s opinion:
It appears that sometimes we find that it is permitted to
surrender one person’s very life in order to remove a danger
from many persons, and the proof of this is the case of Sheva
son of Bikri.
R. Efrayim haKohen asserts that R. Yohanan’s principle that it is
permitted to surrender one person to be killed in order to save many
persons applies with even greater force to the case before him, where
if the members of the community see that some damage or
destruction will result if they do not revoke this ordinance
concerning the young man, they are permitted to revoke the
ordinance, so that no obstacle or damage will result from this
to the community.
However, R. Efrayim haKohen ultimately rejects his own argument
from the Jerusalem Talmud. The reason for permitting surrender of
one person, R. Efrayim haKohen asserts, is not because surrendering
him will save many, but rather because even if the particular person
is not surrendered, he will be killed together with the others. According
to R. Efrayim, the same principle will apply if there are just two
persons and one of them is specified. Then too, it will be permitted to
surrender the person specified in order to save the person not specified,
even though he is but one. Rava’s principle, “What makes you think
your blood is redder than his…” (see below), applies only where refusal
to cooperate will save the other person’s life. If, however, the other
person will in any case not be saved, if, for instance, the heathen says
“If you do not kill him, I will kill you both,” then one is permitted to
save himself at the expense of the other’s life. Therefore, R. Efrayim
haKohen concludes, “The reason is not the rescue of many persons.”
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Me’iri8 also says that the above principle applies even where there
are only two people:
If [the enemy] says, “I will kill you all,” or “both of you,” he
surrenders him so that both, or all, will not be killed.
On the other hand, even if the person will be killed in any case if he
is not surrendered, Me’iri permits only surrendering the specified
person, but does not permit killing him. Other sources, as will
presently be shown, permitted not only surrendering a person in such
a case—thus causing his death indirectly—but actually killing him.
Concerning the Talmud’s discussion9 of “a woman who has
difficulty giving birth,” and the principle that one life may not be
given priority over another, Rashi raises a question from the case of
Sheva son of Bikhri.10 In that case, the residents of the city executed
Sheva son of Bikhri in order to prevent the city’s capture, as we read,
“…and they cut off the head of Sheva son of Bikhri, and threw it out
to Joab…” (II Samuel 20:22), apparently giving priority to one
life over another. The case of Sheva son of Bikhri seems to
contradict the mishnah in Ohalot. On this apparent contradiction of the
principle, Rashi explains:
There [it was permitted], because even if they had not
surrendered him, he would have been killed in the city when
Joab captured it, and they would have been killed with him.
However, if he would have survived, even if they would have
been killed, they would not have been permitted to surrender
him to save themselves.
Rashi goes on to give an alternative reason: “Or perhaps it was because
he had rebelled against the king.”
What emerges from Rashi’s comments is that where the person to
be surrendered would be killed even if he were not surrendered, it is
permitted even to kill him. This conclusion concerning Rashi’s opinion
was reached by R. Me’ir Eisenstadt, author of Resp. Panim Me’irot.11
8
9
10
11
R. Menahem haMe’iri, Beyt haBehirah, Sanhedrin 72b (ed. Ralbag, p. 109).
Sanhedrin 72b.
II Samuel 20:21.
Resp. Panim Me’irot III:8.
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R. Eisenstadt was asked concerning a woman having difficulty giving
birth where the fetus began to emerge feet first (i.e., breech delivery),
whether it is permitted to amputate the fetus’s limbs to extract it and
save the mother. In answer, he asserts that from Rashi’s comments
mentioned above, it appears that if it is known that in this birth, both
mother and fetus will die, then we do rescue one and give priority to
one life over another. R. Eisenstadt does not rule, however, but asserts,
rather, that the law in this case requires further consideration.12
In Resp. Mahaneh Hayyim,13 R. Hayyim Sofer makes a distinction:
a fetus may not be killed even if otherwise both mother and fetus will
die, because if the fetus dies, that will be an act of heaven, and it is
forbidden to actively kill him. This is not the case where a person is
ordered to kill another (and if he does not, both will be killed). There,
if both are killed, they will be killed by another human being;
therefore, only in such a case, is it plausible to permit one to kill the
other in order to save himself.14
According to the opinion that it is prohibited to surrender a specified
person unless he has committed a capital offense, why should he not
be surrendered if, in any case, he will be killed together with everyone
else? Concerning this question, R. Kook gives the novel explanation
that owing to the severity of the prohibition of killing, it is preferable
not to actively deliver a person to death; it is preferable, rather, that
his death be caused without our intervention, even if he will die
anyway together with the others.
Although we learn of this special severity from the principle “What
makes you think your blood is redder than his?”, this severity does
not depend on the reasoning of “What makes you think, etc.” Even
in situations where the “What makes you think, etc.” principle does
12
Yad Ramah on Sanhedrin 72b, rules that if both mother and fetus will die, it is
permitted to kill the fetus in order to save the mother. Maharam Halawa, in his
comments on Pesahim 25b, writes that one authority holds that Rava’s ruling
that even under threat of death it is forbidden to kill, applies only when the ruler
would kill A and leave B to live. Where, however, the ruler declares, “if you do
not kill B, I will kill you both,” then A should kill B and not let himself be
killed.
13 R. Hayyim Sofer, Resp. Mahaneh Hayyim II, Hoshen Mishpat 50.
14 Resp. Maharam Shik, Yoreh De’ah 155 does not accept the opinion of Mahaneh
Hayyim.
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not apply, such as when all will be killed in any case, the severity of
the prohibition of killing remains in force.
For a philosophical perspective on the relationship between the
individual and the collective expressed in these laws, it would do well
to quote R. Yosef Dov Soloveitchik,15 who asserts that the Jewish
perception of man is twofold:
Judaism saw in him an individual in his individuality, and saw
him as part of a collective, an organ of the body of the Jewish
people [Kenesset Yisra’el]. On this subject, there is a continuing
dialectic in Judaism in all generations. The question of questions
is whether the individual stands above the collective and the
collective must serve the individual, or whether the individual
is subordinate to the collective and of no independent
significance to it.
Further on, R. Soloveitchik continues:
It is as though the individual and the collective find themselves
on two sides of the balance and are dependent upon one another.
Sometimes we find that the collective must sacrifice itself for
the individual, for instance in the law concerning heathens who
surround a city and demand one person—then, all must die
rather than giving up one Jew. But there are times when the
individual is obliged to sacrifice himself for the collective. The
individual is never considered insignificant with reference to the
collective, and the collective is not diminished on account of
the individual or individuals. Each one has its own place.
D. One Versus Several in “Be Killed Rather Than
Transgress”
In the tractate Sanhedrin,16 Rava is asked about one who is threatened
that if he does not kill a particular person, he will himself be killed:
15
R. Yosef Dov haLevi Soloveitchik, Al haTeshuvah, ed. Pinhas Peli (Jerusalem:
The World Zionist Organization, 1975) p. 86.
16 Sanhedrin 74a.
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is he permitted to kill that person? Rava answers that he must be killed
rather than kill, for, “What makes you think your blood is redder than
his? Perhaps his blood is redder than yours.”
Does the reason, “What makes you think your blood is redder than
his?” apply also when the dilemma involves giving priority to several
persons over one? What will Rava say when not just one person is
threatened that he will be killed if he does not kill another, but two
or three are threatened that if they do not kill a particular person, they
will be killed. In a case such as this, would Rava prefer the many over
the one? We saw in the previous chapter that authorities differ on this
question.
The question of giving priority to several persons over one person
arises in a different context as well. Where a person is compelled to
participate indirectly in an act of killing by being thrown upon an
infant so that the infant will be crushed and killed, he does not perform
any act at all—even indirectly—but rather serves as a mere “means”
for the killer to accomplish his end. Concerning such a case, the
opinion of the Tosafot17 is well known: The person is not obliged to
sacrifice his life rather than allow himself to be thrown upon an infant,
for here, since he is not directly performing an act, he may ask, “What
makes you think the infant’s blood is redder than mine?”. Would the
Tosafot say the same where the person is to be thrown on a number
of infants?
1. Not Preferring the Many — Not Employing Common
Sense Appraisal
As to the first case, where a threat is addressed to several persons who
must kill a specific individual or be killed themselves, for R. Kook it
is clear that Rava’s principle will apply. Preference may not be given
to the many over the individual, and we say to them all, “What makes
you think your blood is preferable to the blood of that individual?”.
Why, in fact, should we not say that the blood of many is preferable
to the blood of one? To this question, R. Kook answers that we have
no clear incontrovertible proof of the priority of the many over the
individual, and preference of many over one is based only on common
17
Tosafot, Sanhedrin 74b, s.v. veHa Ester.
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sense appraisal (umdena). It may be that the “weight” that we ascribe
to an individual or to many is not correct. In terms of “absolute
weight,” it may be that this particular individual’s worth equals or
exceeds the worth of the many. Thus, we cannot rely upon logic or
the common sense appraisal that ascribes greater value to several than
to one, except as concerns purely religious obligations, where we do
indeed rely upon common sense appraisal. On the other hand, when
we are discussing killing one person for the purpose of saving another,
as in the case that came before Rava, we are dealing in capital cases,
and in capital cases, we do not rely upon common sense appraisal.18
Concerning common sense appraisal in capital cases, Maimonides
writes:19
The court does not impose the penalty of death on mere
conjecture but only on the conclusive testimony of witnesses.
Even if the witnesses saw him [the assailant] chasing the other,
gave him warning, and then lost sight of him, or they followed
him into a ruin and found the victim writhing [in death agony],
while the sword dripping with blood was in the hands of the
slayer, the court does not condemn the accused to death, since
the witnesses did not see him at the time of the slaying.
Concerning this and similar cases, Scripture says: “And the
innocent and righteous slay not” (Exodus 23:7).
In his Book of the Commandments, Maimonides explains the point
further:20
Hence, the Exalted One has shut this door, so to speak,
ordaining that no punishment is to be inflicted unless there are
witnesses who testify that they know for certain what happened,
without any doubt whatever, and there is no other possible
explanation. If we do not give judgment even on the basis of a
very strong presumption, the worst that can happen is that the
sinner will be acquitted; but if we punish on the strength of
18
19
20
R. Avraham Yitzhak haKohen Kook, Mishpat Kohen 143, pp. 310-311.
Maimonides, M.T., Sanhedrin 20:1.
Charles B. Chavel, The Commandments; Sefer Ha-Mitzvoth of Maimonides
(London: Soncino Press, 1967), vol. II, Negative Commandment 290, pp.
269-271.
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presumptions and suppositions, it may be that one day we shall
put an innocent person to death; and it is better and more
satisfactory to acquit a thousand guilty persons than to put a
single innocent man to death.
2. Situations in Which Preference is Given to the Many
From here, R. Kook arrives at the circumstances when priority is given
to several persons over one.
(A) When a Person is to be Pushed onto Several Infants
Above we discussed what the law would be if a person were compelled
to permit himself to be pushed upon an infant, and we saw that
according to the Tosafot, he is not obliged to sacrifice his life rather
than consent. The reason was that where the act is indirect, the “What
makes you think your blood is redder,” principle may be applied to
the potential assailant. When the potential victim is several infants,
however, R. Kook asserts that a person may be obliged to sacrifice his
life. R. Kook concludes, however, that “the matter requires study.”21
What is the rationale for requiring the person to sacrifice his life?
The case under discussion is not a capital case in the sense of
surrendering someone or permitting someone to kill a person. In the
case of the infants, we are asking, rather, if the person is obliged to
sacrifice his life. Here we are not committing an act equivalent to
deciding a capital case but rather issuing a halachic decision. In this,
it is a decision no different than all other decisions on whether
according to Jewish law a particular act is permitted or forbidden. It
may be, therefore, that in a case such as this, we do follow our
common sense appraisal, according to which the lives of many take
precedence over the life of one.
While the question of whether a person may permit himself to be
pushed onto several infants was connected to the question of whether
“to be killed or transgress,” there are a number of cases which must
be discussed outside this context.
(B) Volunteering to Rescue Several Persons
The various considerations enumerated in the previous case may apply
21
Ibid., p. 312.
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equally to one who of his own free will volunteers to sacrifice his life
in order to rescue several persons. It may be that even Maimonides,
who holds that a person is not permitted to volunteer to sacrifice his
life when he is not obliged to do so, will admit that it is permitted to
volunteer to sacrifice one’s life to rescue several persons.22
(C) Priority in the Rescue of the Many
We learn of the possibility of “weighing” one life against another, for
the purpose of determining priority in rescue, from the final mishnayot
of the tractate Horayot.23 If it is possible to determine priority among
individuals, why should it not be possible to give priority to the rescue
of several persons over the rescue of one person?
When R. Kook explained why we cannot give priority to several
persons over a single person, he based his explanation on the prinicple
that we may not judge capital cases on the basis of a common sense
appraisal. Since preference for several persons over the one is based
upon common sense appraisal, we cannot sacrifice an individual’s life
to save several persons. However, according to R. Kook, we do rely
on common sense appraisal
when we perform no act directly involved with the person’s life,
but are only passive, when we give priority to that which
appears to us more important, whether it be according to the
principles established by the Sages for when things are equal;
or by means of evaluation and common sense appraisal when
they are not totally equal, but when we know that they are equal
in levels of wisdom and lineage, and so forth.
R. Kook continues, however, and asserts that all these criteria for
evaluating the worth and preciousness of a life are not stronger than
common sense appraisal. We are, therefore, forbidden to act upon these
rules when judging capital cases. Thus, when we must decide which
life to sacrifice, we are left with only the “What makes you think your
blood is redder than his” principle, and we are, therefore, forbidden to
perform any direct act which will result in loss of another person’s
22
23
Ibid, p. 311.
Mishnah Horayot 3:7-8.
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life.24 However, according to R. Kook, we can give priority to the
rescue of several persons over the rescue of one person, because
according to logic, many persons should have priority over one
person.25
E. Diverting an Arrow from Several Persons to One
(The Opinion of Hazon Ish)
Another source relevant to our subject is the opinion of Hazon Ish on
whether in order to save several persons it is permitted to divert an
arrow already in flight, where doing so will result in the death of
another.
Hazon Ish writes26:
…where one sees a flying arrow about to kill several persons,
and he is able to divert it to a different trajectory, such that only
one person will be killed, and if he does nothing, several people
will be killed, but the single person will remain alive: It may
be that this is not comparable to the surrender of one person to
be killed. For ther