A society is like unto a stone arch: If one takes away a single stone, the entire [arch] wobbles and is undermined.
BEREISHIT RABBAH 100:7
A generation of Jews born, reared and educated in the New World has grown to maturity. Qualitatively and quantitatively, members of this generation are observant of the tenets of Judaism to a degree far beyond the fond dreams of their mentors. Yet, only in recent years have we, as a community, come to appreciate that the uniqueness of the Jewish Weltanschauung should also define our attitude with regard to problems that are not of parochial Jewish concern but are societal in nature. One should not anticipate the attitudinal foci of Judaism to be at one with those of the dominant culture. The Jew whose opinions with regard to social issues and societal concerns are influenced by the Op-Ed page of the daily newspaper rather than by sacred writ perforce becomes the victim of a curious religious schizophrenia. His ritual observance may be exemplary, but his attitudes and actions with regard to matters of social concern may actually be antithetical to Torah values.
Judaism is an all-pervasive discipline of life. Its standards are unique. Its values are not the product of human inquiry but of divine revelation. Its moral norms are theocentric rather than homocentric. Little wonder, then, that the Jewish response to social dilemmas of our age is so often in striking discord with contemporary mores and at variance with conventionally accepted wisdom. But rather than adjusting its teachings and practices to the perceived needs and desires of society, it is the goal of Judaism to fashion society in the divine image. The mission of the community of Israel is to influence societal mores and values so that they become reflective of the divine will and thereby le-taken olam be-malkhut Shadai—to perfect the world under the kingship of God.
Nuclear Warfare
There is certainly no indication that the nations of the world are, at present, desirous of abiding by Jewish teaching regarding nuclear warfare and the related issue of nuclear disarmament. There are, however, individuals, groups, and even governmental bodies, who have evidenced a keen interest in the perspectives of Jewish tradition concerning this grave question. The teachings of religion certainly serve as a factor in molding social policy even in a secular society. Moreover, for Jews, whether or not Jewish teaching with regard to this or other issues is implemented in practice, the formulation of the relevant Halakhah is in itself an imperative of Torah study.
It is entirely understandable that Jewish teaching with regard to nuclear warfare cannot be examined other than in the context of its attitude toward war in general. To be sure, nuclear war poses a threat to the very survival of the human race. But Judaism has long recognized that "He who destroys a single life is accounted as if he has destroyed the entire world; and one who preserves a single life is accounted as if he has preserved the entire world" (Sanhedrin 37a). Every person is an olam katan, a microcosm in himself, and of infinite value in the eyes of the Creator. Thus, the moral problems posed both by conventional and nuclear warfare are essentially alike; in nuclear warfare the problem becomes magnified simply because of the sheer magnitude of the number of potential victims.
Halakhah, as it applies to Jews, recognizes that man has no right to make war against his fellow. Standard translations of the Bible render Exodus 15:3 as "The Lord is a man of war; the Lord is His name." Rashi, citing similar usages having the same connotation, renders the Hebrew term "ish" as "master." Thus the translation should read, "The Lord is the master of war; the Lord is His name." God is described as the master of war because only He may grant dispensation to engage in warfare. The very name of the Lord signifies that He alone exercises dominion over the universe. Only God as the Creator of mankind and proprietor of all life may grant permission for the taking of the lives of His creatures.
War is sanctioned only when commanded by God, i.e., when divine wisdom dictates that such a course of action is necessary for fulfillment of human destiny. Even a milḥemet reshut, a permitted or "discretionary war," is discretionary only in the sense that it is initiated by man and does not serve to fulfill a divine commandment. But even a milḥemet reshut requires the acquiescence of the urim ve-tumim. The message transmitted via the breastplate of the High Priest is a form of revelation granting divine authority for an act of aggression. Judaism sanctions violence only at the specific behest of the Deity. Human reason is far too prone to error to be entrusted with a determination that war is justified in the service of a higher cause. Such a determination can be made solely by God.
The teachings of Judaism with regard to non-Jews are somewhat more complex. Non-Jews are not held to the same standards of behavior as Jews. Although the Noachide Code, which embodies divine law as it is binding upon non-Jews, prohibits murder, it does not necessarily prohibit as an act of murder the taking of human life under any and all circumstances. It is quite clear that when confronted by a situation in which an individual's life is threatened, all persons, non-Jews as well as Jews, have an absolute right to eliminate the aggressor in self-defense. "Ha-ba le-horgekha hashkem le-horgo—If [a person] comes to slay you, arise and slay him first" (Sanhedrin 72a) is a principle which applies to Noachides as well as to Jews. Accordingly, a defensive war would appear to require no further justification. The right of non-Jews to wage war under other circumstances is examined in the second volume of this writer's Contemporary Halakhic Problems. There are, however, several further points having a direct bearing upon nuclear warfare which should be noted.
Acceptance of the premise that the principle of self-defense applies to Noachides as well as to Jews does not serve to justify any and all military action even if limited to wars of defense. War almost inevitably results in civilian casualties as well as the loss of combatants. Yet the taking of innocent lives certainly cannot be justified on the basis of the law of pursuit. The life of the pursuer is forfeit in order that the life of the intended victim be preserved. However, should it be impossible to eliminate the pursuer other than by also causing the death of an innocent bystander, the law of pursuit cannot be invoked even by the intended victim,1This is certainly the case with regard to a Jew who is pursued by a person intent upon taking his life. In such circumstances the intended victim may not save his own life at the expense of the life of an innocent third party. The general rule that all prohibitions are suspended in face of danger does not apply to the three cardinal sins, viz., homicide, idolatry and certain forms of sexual licentiousness. Hence, the intended victim may not take the life of his pursuer if it is impossible to do so other than by taking the life of an innocent party at the same time. There are however, some authorities, including R. Shmu’el Jaffe-Ashkenazi (Maharash Jaffe), Yefeh To’ar (Fürth, 5452), Genesis 44:5, (cited by Parashat Derakhim, derush 2), who maintain that a gentile may transgress any prohibition, including the three cardinal sins, in order to save his life. According to Maharash Jaffe, defensive military action designed to eliminate an aggressor would be justified on grounds of self-defense even when such action necessarily results in the loss of civilian lives. According to this authority, such action would be permissible in situations in which it is impossible to kill the aggressor without also taking the lives of innocent noncombatants, provided that the life of the individual undertaking such action is endangered. See also, R. Shlomoh Algazi, Shama Shlomoh (Amsterdam, 5470), p. 15b; Shenot Ḥayyim, p. 36b; R. Barzilai Baruch Ya’avets, Leshon Arumim (Izmir, 5516), p. 7; and R. Abraham Samuel Meyuchas, Sedei ha-Areẓ, I, 55. The view of Maharash Jaffe is, however, rejected by numerous later authorities. R. Judah Rosanes, Parashat Derakhim, loc. cit., concedes that a Noachide may commit acts of idolatry and sexual licentiousness in order to escape danger since the biblical verses banning such actions even in the face of force majeure are addressed only to Jews and are not part of the Noachide Code. However, the prohibition against homicide under such circumstances is not based upon a biblical command but upon the a priori consideration “How do you know that your blood is sweeter than the blood of your fellow?” (Sanhedrin 74a). As an a priori concept, argues Parashat Derakhim, this principle is binding upon Noachides no less than upon Jews. A similar view is expressed by the same authority in his Mishneh le-Melekh, Hilkhot Melakhim 10:2, as well as by R. Joseph Babad, Minḥat Ḥinnukh, no. 296, and in a note appended by a grandson of R. Isaac Schorr to the latter’s Teshuvot Koaḥ Shor, no. 20, p. 35a. much less so by a third party who is himself not personally endangered. Since the law of pursuit is designed to preserve the life of the innocent victim, it is only logical that it is forbidden to cause the death of a bystander in the process since to do so would only entail the loss of another innocent life. In such situations the talmudic principle "How do you know that your blood is sweeter than the blood of your fellow?" (Sanhedrin 74a) is fully applicable.
If war on the part of non-Jews is sanctioned solely on the basis of the law of pursuit, military action must perforce be restricted to situations in which loss of life is inflicted only upon armed aggressors or upon active participants in the war effort; military action resulting in casualties among the civilian populace would constitute homicide, pure and simple. Following this line of reasoning there could certainly be no justification for military action intentionally designed to claim civilian lives. Thus, despite the resultant diminution of casualties among the armed forces, the nuclear bombing of Hiroshima and Nagasaki could not be justified on the basis of the law of pursuit. Justification of the use of atomic weapons simply as an act of war is contingent upon resolution of the question of whether or not non-Jews have been granted the right to engage in war. As noted earlier, that question has been discussed elsewhere.
There is one other avenue which should be explored as possible justification of military action which results in casualties among noncombatants. Jewish law, to be sure, recognizes a distinction between willful transgression (mezid) and inadvertent transgression (shogeg). The latter occasions no punishment at the hands of a human court but, in terms of heavenly law, requires penance and expiation. In the case of certain serious infractions, a sacrifice is required as atonement. Inadvertent transgression, or shogeg, is defined as ignorance of the prohibition itself or ignorance that the act performed is proscribed because of confusion with regard to a factual detail (e.g., knowledge that a certain act is forbidden on Shabbat but ignorance of the fact that it is the Sabbath day). Even minimal culpability as shogeg requires that the act itself and its consequences be fully intended. Performance of an act with intention to achieve an innocuous result, even when that act is performed in a manner which may well result in an unintended infraction, engenders no culpability even if the actual result is one which, were it intended, would be a forbidden act. Since the resultant act is unintended (davar she-eino mitkaven) no expiation is required. The source for this provision of Halakhah is the Mishnah, Beizah 22b, which records a dispute between R. Judah and R. Simon with regard to culpability for such acts. The halakhah is in accordance with the permissive opinion of R. Simon. Thus, for example, a bed, chair or couch may be dragged along a dirt floor provided that there is no intention to gouge a hole in the floor. The act is entirely permissible and the person acting in such manner incurs no liability even if a hole is dug inadvertently. Accordingly, it might perhaps be argued, a person intent upon killing a pursuer need not be constrained by the concern that his act may possibly cause the death of an innocent bystander since the result is unintended. A similar concept appears in other theological systems, perhaps as a result of the influence of Jewish law, and is known as the "double effect" theory.
This argument may be rebutted on a number of grounds. Although most authorities make no such distinction, R. Aḥa'i Ga'on, in his She'iltot, she'ilta 105, maintains that the concept of a davar she-eino mitkaven is applicable only with regard to possible violation of Sabbath restrictions, but that acts which might result in transgression of other prohibitions are forbidden even if the proscribed effect is unintended. Tosafot, Shabbat 110b, asserts that acts of such nature are forbidden whenever the possible result is a capital transgression.
Furthermore, an act is permitted even though the unintended effect is forbidden only when it is not a certainty that the proscribed effect will occur. When the forbidden effect will of necessity take place, the act is forbidden even though it is intended in order to effect an innocuous result. Thus, for example, a person may not sever the head of an animal on the Sabbath on the plea that he intends only to remove the head in order to feed it to a dog, but not to kill the animal. Such an act is known as a pesik reisheih. The rationale underlying this provision is that a necessary effect cannot be regarded as unintended. Accordingly, military action which of necessity will result in civilian casualties cannot be justified on the contention that the killing of innocent victims is unintended since the loss of those lives is the inescapable result of such action. According to most authorities, such acts are forbidden even if no benefit is derived from the proscribed effect.2An act performed on Shabbat leading to an undesired effect which itself is in violation of Sabbath laws (pesik reisheih de-lo niḥa leih) is forbidden by virtue of rabbinic edict. No biblical prohibition is attendant upon such an act because, with regard to Shabbat violations, intention is a necessary element in the biblical infraction (melekhet maḥshevet asrah Torah). See, for example, Magen Avraham, Oraḥ Ḥayyim 320:20 and Ḥayyei Adam, Hilkhot Shabbat 9:6. Many authorities who forbid an act leading to an undesired effect which is in itself a violation of some other prohibition regard the act leading to such a “double effect” as being biblically proscribed; see Rosh, Shabbat 14:9.
One point requires further clarification. There may be some question with regard to whether circumstances involving a pesik reisheih defeat the plea of davar she-eino mitkaven insofar as violation of the provisions of the Noachide Code by non-Jews is concerned. Such a distinction is found with regard to a somewhat related matter. In most circumstances, a Jew may not direct a non-Jew to perform an act which the Jew himself is forbidden to perform. Some authorities, however, permit a Jew to ask a non-Jew to perform an act which entails a pesik reisheih, i.e., the desired result for which the particular act is intended is entirely permissible but would be forbidden to the Jew only because it necessarily entails a concomitant result which is proscribed.3See Magen Avraham, Oraḥ Ḥayyim 277:7 and Mishnah Berurah 253:31 and 277:15. Thus, for example, these authorities permit a Jew, on the Sabbath, to direct a non-Jew to remove a pot from among the burning coals in which it is embedded even though some coals are necessarily extinguished in the process. The rationale underlying this ruling is not entirely clear. If it is understood that this ruling is based on the principle that, for non-Jews, even a pesik reisheih is encompassed in the category of an unintended effect (davar she-eino mitkaven), the selfsame provisions would apply to the culpability of non-Jews with regard to the provisions of the Noachide Code. If so, insofar as non-Jews are concerned, any davar she-eino mitkaven would be permissible including acts which constitute a pesik reisheih. It should be noted, however, that many authorities forbid allowing a non-Jew to perform an act on the Sabbath on behalf of a Jew which involves a pesik reisheih.4See Magen Avraham, Oraḥ Ḥayyim 253:41; Mishnah Berurah 253:99-100, 253:51 and 277:30. Cf., R. Benjamin Silber, Brit Olam 16:1 and accompanying note. Moreover, the permissive ruling formulated by some authorities with regard to performance of an act involving a pesik reisheih by a non-Jew may only reflect the view that the rabbinic prohibition against permitting a non-Jew to perform forbidden acts on behalf of a Jew is circumscribed in nature and is limited only to situations in which the Jew desires the forbidden effect which is accomplished on his behalf by the non-Jew. If so, there is no evidence that non-Jews are relieved of culpability with regard to unintended violations of the Noachide Code when such acts are committed in the form of a pesik reisheih.5See also R. Moshe ha-Levi Epstein, Bet Mosheh, Even ha-Ezer 5:13, and below, p. 158.
It must be noted that, even according to the authorities who maintain that non-Jews may engage in wars of aggression, there are strong grounds for arguing that the devastation associated with nuclear warfare renders such warfare illicit. The Gemara, Shevu'ot 35b, declares, "A sovereign power which slays one sixth [of the populace] of the universe is not culpable." It is to be inferred that the death of one-sixth of the inhabitants of the universe entails no culpability, but that slaying more than one-sixth of the population of the universe does engender culpability. Tosafot, understanding the dictum as referring to the monarch of a Jewish state, indicates that the Gemara here imposes a constraint upon a milḥemet reshut or discretionary war.6See Teshuvot Ḥatam Sofer, Oraḥ Ḥayyim, no. 208, who declares that not only is annihilation of one-sixth of the populace of the universe forbidden but also that war leading to genocide, defined as the extermination of one-sixth of a particular nation or people, is similarly prohibited. The sovereign may not initiate discretionary war if it is to be anticipated that an inordinate number of people will perish as a result of hostilities. According to Tosafot's analysis, a similar restriction does not apply to wars which are mandated by Scripture.
The various categories of milḥemet mizvah certainly do not apply to non-Jews who are not the recipients of any specific scriptural commandments concerning war. According to the most permissive view, non-Jews are merely permitted to engage in military activity but, for non-Jews, warfare cannot be deemed obligatory under any circumstances. Accordingly, limitations upon warfare undertaken as a milḥemet reshut would assuredly apply to war undertaken by non-Jews. Hence, according to Tosafot, non-Jews are not entitled to engage in war which is likely to result in the annihilation of more than one-sixth of the population of the world. This restriction applies even to wars of defense in which not only the aggressors are destroyed but the lives of a large number of innocent victims are claimed as well. The nature of nuclear warfare is such that, in all likelihood, more than one-sixth of the world's population would be destroyed in a nuclear holocaust.
A careful distinction must be drawn between abjuration of nuclear warfare and unilateral disarmament. Although nuclear retaliation may not be consistent with halakhic norms, the threat of retaliation is an entirely legitimate means of discouraging aggression. A wise man would do well not to resist a mugger and surrender his wallet without protest. Yet only a fool would carry a placard on his shoulder proclaiming that message and announcing to all and sundry that he may be accosted with impunity. Nuclear arms prudently deployed may well serve as a deterrent even though a moral government would eschew their use.
Sale of Arms
Frequent press reports focusing upon the role of the State of Israel as a purveyor of arms to various countries have given rise to many inquiries concerning whether or not such transactions are in violation of Jewish law. It has also been noted that the 1981 assassination attempt upon President Reagan involved the use of a handgun purchased from a Jewish pawnbroker in Dallas, Texas. The propriety of engaging in commercial traffic in the sale of weapons, whether by an individual or by a state, is certainly a matter of halakhic concern.
Rambam, Hilkhot Rozeaḥ 12:12; paraphrasing Avodah Zarah 15b, declares: "It is forbidden to sell heathens weapons of war. Nor is it permitted to sharpen their spears, or to sell them knives, manacles, iron chains, bears, lions or any object which can cause harm to the public; but it is permitted to sell them shields which are solely for defense." A similar restriction is recorded by Rambam, Hilkhot Rozeaḥ 12:4, with regard to sale of weapons to Jewish bandits. The underlying principle which gives rise to this prohibition is clearly enunciated. In selling arms to such individuals "one strengthens the hands of an evil-doer and causes him to transgress" and "anyone who causes one who is blind with regard to a matter to stumble … or one who strengthens the hand of a person who is blind and does not see the path of truth because of the desire of his heart violates a negative precept as it is stated, 'you shall not put a stumbling block before the blind.' "
The latter precept, recorded in Leviticus 19:14, was understood by the Sages as an admonition designed to protect not only the physically blind but the intellectually and morally blind as well. A Jew is forbidden to take advantage of another person's lack of awareness in a way which results in physical, pecuniary or moral harm to that person. The prohibition is binding whether or not such advice or action is motivated by a desire for personal gain. Thus the prohibition encompasses three principal types of activity: (1) misleading the blind or infirm and causing physical harm; (2) offering misinformation or poor advice to the uninformed; and (3) preying upon or pandering to the predilections of the morally blind.7Whether or not the act ostensibly proscribed by the literal meaning of the verse, viz., placing a physical stumbling block before a blind person, is actually included in this prohibition is a matter of some dispute. See Minḥat Ḥinnukh, no. 232; R. Elchanan Wassermann, Koveẓ Bi’urim (Tel Aviv, 5726), Shev Shma‘tteta, sec. 13; R. Nathan Gestetner, Natan Piryo, Ḥullin 3a; Rashi, s.v. ve-afilu kuti. In prohibiting the placing of a stumbling block before the blind, Halakhah makes no distinction between Jew and gentile; all such actions are prohibited regardless of who is victimized thereby. The sale of weapons to persons who will misuse them clearly falls into the third category, and, accordingly, such activity was specifically banned by the Gemara. Rambam's use of the phrase "or any object which can cause harm to the public" may indicate that sale of such items may be encompassed within the first category as well.
There is one exception to the general prohibition concerning sale of weapons to non-Jews. The Gemara, Avodah Zarah 16a, explicitly permits sale of weapons "to the Persians who protect us." Hilkhot Avodah Zarah 9:8 explains that it is permitted to sell armaments to "the servants of the king and his soldiers because they wage war against the enemies of the state in order to preserve it; hence they protect us since we dwell among them." Similarly, in Hilkhot Rozeaḥ 12:13, Rambam declares that it is permitted to sell arms to "the army of the populace of the state because they protect Israel." This provision is also recorded in Shulḥan Arukh, Yoreh De'ah 151:6. This exemption from the general prohibition is thus predicated upon the general consideration of self-defense. Actions which are otherwise prohibited are permitted if necessary to preserve life. A suitably equipped army, militia and police force is necessary to preserve law and order and to protect against the enemy. Hence sale of weapons to forces charged with protecting the public is permitted as a legitimate form of self-defense.
It would logically follow that sale of arms is permitted not only to the armed forces and police of one's own country but also to other nations actively engaged in protecting the security of a Jewish state or of a Jewish populace. Hence sale of arms to nations allied with Israel by means of a formal or informal security pact would be justified. Absent such agreement, arms sales would be forbidden unless absolutely necessary by virtue of other considerations in order to protect life, e.g., as part of a barter arrangement designed to secure materiel necessary for self-defense. Accordingly, the halakhic propriety of the arrangements surrounding each sale of arms by the State of Israel would have to be examined in light of the above factors and considerations. Rabbi Chaim David Halevi, the Sephardic Chief Rabbi of Tel Aviv, Aseh Lekha Rav, I, no. 19, opines (perhaps overconfidently) "… there is no doubt that [the State of Israel engages in such sales] on the basis of security considerations and takes into account the benefit which will arise to us therefrom."
Jewish Terrorists
Downtrodden, oppressed and persecuted for millennia, Jews practiced what others preached. When smitten, they turned the other cheek. Undoubtedly, this reaction was rooted in pragmatic considerations. Resistance would only evoke greater hostility; retribution would assuredly provoke unspeakable punishment. Eventually, reticence, timidity and fear became ingrained in the psyche of the galut Jew. Response in kind simply became unthinkable.
For better or for worse, this is no longer the case in the modern-day State of Israel. Survival demanded preparedness in the form of strong defense forces and a prompt crushing response to armed aggression. Wars of attrition and endless acts of terrorism continue to sap the strength of the yet nascent state. On the governmental level the response has been a policy of swift retaliation and preventative strikes to eliminate danger. As a result, a profound psychological metamorphosis has taken place. Fear that worse misfortune be provoked has been eradicated. Reticence is no more. The instinctive response to violence is violence. And, now, the ultimate has arrived: terrorism against terrorism.
In formulating national policy, the State of Israel is not necessarily guided by the teachings of Jewish tradition. It has not customarily sought the prior advice of its own Chief Rabbinate with regard to the grave moral and halakhic issues confronted in the defense of the State. Observant Jews have nevertheless tended to be supportive of government policy in matters pertaining to national security. They have been supportive with regard to such matters for two reasons: (1) A vague, unarticulated feeling that justification for these policies can be found in Jewish tradition. (2) A clear perception that vocal opposition to those policies could only compromise the security of the State and endanger the lives of countless thousands of its citizens. In any event, the government has not pursued policies designed to snuff out the lives of blameless persons.
But, in recent years, individuals have taken matters into their own hands and have committed acts endangering lives and limbs of the innocent as well as of the guilty. Moreover, those persons are observant Jews who, incontrovertibly, have manifested sacrificial commitment to the Land of Israel. Most significantly, those individuals plead that their actions are born of an ideological commitment to Jewish teaching. Jewish law, they contend, sanctions and even mandates the acts of terrorism which they promulgate.
Provocation, however, cannot be equated with justification. One can readily understand the mentality of those who believe that further violence can be prevented only by instilling fear of retaliation. Even were history to demonstrate that violence only serves to breed further violence, human nature is such that the evidence would be disregarded. Desire for revenge is also understandable, but to understand is not to condone. Jews dare not allow themselves to respond as others would and do; Jews dare not give free reign to feelings of anger and vengeance. Response, even to danger, must be conditioned by the teachings of the Torah.
There is no question that the State of Israel is surrounded by enemies intent upon the annihilation of its inhabitants. The present situation is reflected in Ramban's poignant interpretation of a phrase found in the concluding section of Leviticus. "And they shall confess their iniquity, and the iniquity of their fathers, in their treachery which they committed against Me and also that they have walked contrary unto Me. I also will walk contrary unto them and bring them into the land of their enemies; if then their uncircumcised hearts be humbled then the punishment of their iniquity will be accepted" (Leviticus 26:40-41). The juxtaposition of these verses is puzzling. Scripture speaks of confession of iniquity. Confession of sin is indicative of repentance. If the people of Israel are indeed repentant, such repentance should signal the close of the period of punishment and affliction foretold in the earlier versions of the tokhaḥah (rebuke). And yet, the very next verse proceeds to state that, instead of responding to their confession of sin in a positive manner, God declares, "I also will walk contrary unto them and bring them into the land of their enemies." Yet a further punishment is predicted: the people of Israel are to be led into the land of their enemies. Even the nature of this further punishment is difficult to comprehend since among the earlier misfortunes which constitute the punishment for Israel's iniquity is recorded "And you will I scatter among the nations …" (Leviticus 26:33).
It is obvious that it is these difficulties which prompted Ramban, in commenting upon this verse, to remark that the phrase "the land of their enemies" does not at all refer to the lands of Israel's dispersion. On the contrary, comments Ramban, the phrase refers, not to the Diaspora, but rather to the Land of Israel itself. The Land of Israel is referred to as "the land of their enemies" because the verse alludes to a period during which, although Jews will reside in the land, it will be encircled on all sides by enemies. According to Ramban, "and they shall confess to their iniquity" marks the beginning of the process of repentance, but does not connote that complete repentance has taken place. God responds in kind. He allows His people to return to the land of their forefathers, but, during that stage of their spiritual rehabilitation, they do not yet live in peace and tranquility. They return to the Land of Israel, but are surrounded by "enemies." There, under such conditions, Scripture tells us, their heart will be humbled and repentance will be complete. Then, and only then, does God promise, "I will remember My covenant with Jacob and also My covenant with Isaac and also My covenant with Abraham will I remember." When repentance is complete, then will the iniquity be entirely forgiven and Israel restored to a position of favor in the eyes of God.
Whether or not merited by partial repentance, divine beneficence has permitted a partial return to our land. Encirclement by enemies, according to Ramban, is both a form of divine retribution as well as an impetus to repentance. To be sure, enemies must be recognized as such and one may respond to an enemy in an appropriate manner. Certainly, an overt act of aggression committed by an enemy need not be accepted and suffered in silence even though the resultant suffering may well be part of the divine plan. "He who comes to slay you, arise and slay him" is a normative principle of Jewish law. Self-defense is not merely permissible but also mandatory. The "law of the pursuer" demands that any would-be murderer be summarily executed, if necessary, in order to save the life of an innocent victim.
Settlers in newly-founded communities on the West Bank and in the Golan are assuredly entitled to the fullest measure of protection. If, indeed, governmental authorities have not provided adequate protection no one can fault settlers who engage in legitimate forms of protection.
But the "law of the pursuer" justifies only the taking of human life when it is clear that the individual is intent upon an act of aggression. Although malevolent intent may be inferred from circumstances and conduct, mere unsubstantiated suspicion of homicidal intent is not sufficient to permit the taking of a human life. Moreover, there is no dispensation to take the life of a pursuer if the danger can be obviated by less drastic measures. The "law of the pursuer" may be invoked only when the loss of innocent life is otherwise a virtual certainty.
In analyzing the "law of the pursuer": formulated in Exodus 22:2, the Gemara, Sanhedrin 72a, states, "… if the matter is clear to you as the sun that he is not at peace with you, slay him; but if not, do not slay him."8See R. Isaac Schorr, Teshuvot Koaḥ Shor, no. 20; R. Chaim Ozer Grodzinski, Teshuvot Aḥi‘ezer, I, no. 23, sec. 2; and R. Moses Feinstein, Ha-Pardes, Nisan 5728, reprinted in Sefer ha-Zikaron le-Maran ha-Gri Abramsky (Jerusalem, 5738), and in Iggerot Mosheh, Ḥoshen Mishpat, II, no. 69, sec. 2. This is true whether the putative aggressor be a Jew or a non-Jew. While the taking of the life of a non-Jew does not occasion capital punishment at the hands of a human court, Ravan, Baba Kamma 111b, and Kesef Mishneh, Hilkhot Rozeaḥ 2:11, are quite clear in ruling that taking the life of a non-Jew is encompassed in the prohibition against homicide. Explicit authority for that ruling is found in Mekhilta, Mishpatim 4:58. Indeed, there are many forms of homicide for which Jewish law does not prescribe capital punishment. The nature of the punishment administered and the absence of the severest form of punishment does not at all indicate that the act is to be condoned.
Indeed, condoning the act may well be an even worse infraction than the deed itself. II Samuel 21 reports that in the time of King David there was a famine which lasted for three consecutive years. David recognized that the famine must be a punishment for some transgression. Accordingly, he approached the urim ve-tumim and inquired of God what the infraction might be. There came the response, "And the Lord said: 'It is for Saul and for [his] house of blood because he put the Gibeonites to death' " (II Samuel 21:1). The Gemara, Yevamot 78b, quite cogently poses the question: Where is it related that Saul killed the Gibeonites? In point of fact, Saul committed no untoward act against the Gibeonites. The Gemara replies that although Saul did not kill the Gibeonites, he did annihilate the priests who were the inhabitants of the city of Nob. The Gemara further indicates that the Gibeonites were servants of the priests and, in return for their labor, they received their sustenance from the priests. Subsequent to the destruction of Nob, the Gibeonites who were dependent upon the priests for food and drink, no longer had a source of sustenance and consequently a number of them perished. Since Saul was, at least indirectly, responsible for their death, Scripture regards him as culpable for the demise of the Gibeonites.
King David was now apprised of the transgression for which his people were punished. He sought to make amends and called the Gibeonites and asked of them, "What shall I do for you and wherewith shall I make atonement, that you may bless the inheritance of the Lord?" (II Samuel 21:2). The Gibeonites declined to accept gold or silver in expiation for Saul's transgression or as compensation for the harm and grief that they had suffered. But Saul was no longer alive and could not be punished. Instead they demanded, "… let seven men of his sons be delivered unto us and we will hang them up unto the Lord in Gibeah of Saul, the chosen of the Lord" (II Samuel 21:6). David's response was immediate and forthright: "and the king said, 'I will deliver them' " (II Samuel 21:6). Scripture then proceeds to describe how David caused the grandchildren of Saul to pass before the urim ve-tumim and how he delivered to the Gibeonites the seven individuals selected by the urim ve-tumim. Assuredly, King David would not have acceded to the demands of the Gibeonites had there not been a clear indication of divine approval. Nevertheless, the Gemara questions the inherent propriety of such a course of action. "Fathers shall not be put to death for children, neither shall children be put to death for fathers" (Deuteronomy 24:16). The Gemara answers, "Rabbi Hiya the son of Abba said in the name of Rabbi Yonatan, 'Better that a letter be eradicated from the Torah than that the Divine Name be publicly profaned.' " Rashi, commenting upon the nature of the ḥillul ha-Shem (profanation of the Divine Name) which David sought to avert, explains that failure to exact punishment for the death of the Gibeonites would, in and of itself, constitute profanation of the Divine Name in the eyes of the world. Gentile nations would conclude that the Jewish people had acted unjustly in allowing strangers to be deprived of their livelihood without in any way avenging the evildoers.
Saul had harmed the Gibeonites only indirectly and unintentionally. Yet failure to punish the individual bearing even remote responsibility for their plight is deemed by the Gemara to constitute ḥillul ha-Shem. It maybe deduced that, a fortiori, any act which directly leads to loss of gentile life would certainly be regarded as a profanation of the Divine Name and that such transgression is only compounded by failure to punish the perpetrators of such a crime.
This concern is clearly reflected in the comments of R. Meir Simchah ha-Kohen of Dvinsk in his biblical commentary, Meshekh Hokhmah, Parshat Mishpatim. Meshekh Hokhmah explains why it is that the Bible does not provide for capital punishment for the murder of a non-Jew. Meshekh Hokhmah remarks that taking the life of a non-Jew is both an act of homicide and a profanation of the Divine Name. Neither Yom Kippur nor suffering atones for the transgression involved in profaning the Divine Name: expiation is possible only upon the death of the evildoer. Were the individual who takes the life of a non-Jew to receive the death penalty at the hands of a human court as punishment for the act of homicide it would serve as atonement for that crime only. As a result his death would not serve as expiation for the even graver transgression of profanation of the Name of God. Therefore punishment for the murder of a non-Jew is imposed only at the hands of Heaven. According to Meshekh Hokhmah, the killing of a non-Jew is not a crime punishable at the hands of a human court, not because it is a less severe infraction than the murder of a Jew, but, on the contrary, because the infraction is so grave that it cannot be expiated by means of terrestrial punishment.
The application of these sources to acts of terrorism committed by Jews against non-Jews is clear. The question is not the guilt or the innocence of those who stand accused. That is a matter to be determined by an appropriate judicial body in accordance with due process of law. Assuredly, every person is presumed innocent until proven guilty and the rights of the accused must be vigorously safeguarded. But it is undeniable that acts of terrorism did take place and those acts were committed by some person or persons. Such actions must be condemned as violating both the letter and spirit of Jewish law. Moreover, it is clear that, if the identity of the perpetrators is known, failure to bring those individuals to justice would constitute a ḥillul ha-Shem in the eyes of all.
There is no question that the deeds committed were heinous in nature. Self-defense may be sanctionable under appropriate circumstances. Elimination of individuals who seek to spill the blood of innocent victims may also be sanctioned in some circumstances. But those considerations do not justify either collective punishment or acts of terror committed against entirely innocent persons. A hand grenade cast into a building of an Arab university causes indiscriminate damage and takes the lives of entirely guiltless students. A time bomb placed on a bus and designed to explode at an hour at which there are a maximum number of passengers is clearly designed to take the lives of innocent victims. Regardless of the motivation of the perpetrators, regardless of their idealism and self-sacrifice, such acts cannot be sanctioned. The only way in which the profanation of the Divine Name which has already occurred can be rectified is by resolute condemnation of such wanton acts of terrorism.
Above all, we must foster a moral climate in which acts of terrorism are anathema. The Psalmist calls out, " Yitamu ḥata'im min ha-arez—Let evil deeds cease from the earth" (Psalms 104:35). The Gemara, Berakhot 10a, underscores the use of the word ḥata'im in commenting, "Mi ketiv ḥot'im, ḥata'im ketiv," i.e., we pray for the eradication of evil deeds, but not of evildoers. Even in administering punishment, the purpose is not retribution but prevention. Public condemnation and censure are essential lest silence be regarded as approval. And approval, Heaven forbid, can only lead to further violence.
Physicians' Strikes
A lengthy strike on the part of medical practitioners in Israel during the spring and summer of 1983 ended with both sides agreeing to submit all disputes with regard to salary and hours of service to binding arbitration. However, the refusal of physicians to treat patients over an extended period of time raised serious questions concerning the ethical stance of the participants in the strike. Indeed, individual doctors were faced with the moral dilemma of allowing their patients to go untreated or of undermining the solidarity of the profession and incurring the professional and personal ire of colleagues. Many physicians sought halakhic guidance with regard to this issue. In a two-part article published in Ha-Tzofeh, 15 Sivan and 22 Sivan 5743, the former Chief Rabbi, Rabbi Shlomoh Goren, discloses the advice he gave physicians who consulted him and the halakhic reasoning upon which his counsel was based.
Jewish law, as recorded in Shulḥan Arukh, Hoshen Mishpat 133:3 and Shakh, Hoshen Mishpat 333:14, grants workers the right to abrogate labor contracts unilaterally although, under certain conditions, a worker may be liable for consequential damages sustained by the employer. The Gemara, Baba Mezi'a 7a, categorizes compelling a worker to abide by his agreement as a form of involuntary servitude forbidden by Jewish law. Hence, a laborer may withdraw from his employment "even in the midst of the day." According to all authorities, a worker is under no obligation to perform any service subsequent to the expiration of the stipulated period of employment, even though failure to accept a renewal of the contract will result in financial loss to the employer.
A physician is entitled to receive a fee for his services. Ramban, in his Torat ha-Adam, explains that although the physician is bound to treat the patient by virtue of divine command and, ordinarily, no compensation may be demanded for an act which constitutes the fulfillment of a mizvah, the physician is nevertheless entitled to compensation for physical travail and for expenditure of time during which he might be gainfully employed in some other occupation. However, he may not charge a fee simply for sharing his knowledge and expertise with the patient. Although it is forbidden for the physician to demand an exorbitant fee, there is disagreement among early authorities with regard to whether an agreement to pay an inordinately high fee is actionable. Ramban rules that, although it is immoral for the physician to exact such a promise, the physician may nevertheless legally collect whatever sum has been stipulated.
During the early period of the strike, the physicians declined to report for duty at hospitals and government-sponsored medical facilities, but established their own clinics in which they treated patients on a fee per visit basis. Although this placed a financial burden upon patients deprived of the benefits of socialized medicine, Rabbi Goren finds nothing objectionable in this action taken by the doctors since all patients in need of medical attention were treated.
This course of action did not have the desired effect and did not lead to acquiescence by the government to the demands of the physicians. In Israel, with the exception of several small proprietary hospitals and four voluntary hospitals under private sponsorship (Hadassah, Shaare Zedek, Bikur Cholim and Laniado), all hospitals are government-operated. The government, however, establishes salary scales which are imposed upon voluntary hospitals as well. Since the government adamantly refused to accede to their demands, during the latter period of the strike the physicians declined to see patients even on a private basis.
Under Jewish law the treatment of a patient is not merely a matter of private contract but constitutes a religious obligation. Refusal to treat a patient in need of medical assistance is a clear violation of Jewish law. Shulḥan Arukh, Yoreh De'ah 336:1, declares, "If the physician withholds his services it is considered as shedding blood." The obligation to render assistance in life-threatening situations is predicated upon the verse, "Nor shall you stand idly by the blood of your fellow" (Leviticus 19:16). A further obligation is predicated upon the scriptual exhortation with regard to restoration of lost property, "and you shall restore it to him" (Deuteronomy 22:2). On the basis of a pleonasm in the Hebrew text, the Gemara declares that this verse includes an obligation to restore a fellow man's body as well as his property. Hence, there is created an obligation to come to the aid of one's fellow man in a life-threatening situation. Every individual, insofar as he is able, is obligated to restore the health of a fellow man no less than he is obligated to restore his property.
A latter-day authority, R. Yehudah Leib Zirelson, Teshuvot Azei ha-Levanon, no. 61, cogently argues that these obligations apply under non-life-threatening circumstances no less than in life-threatening situations. The verse "and you shall restore it to him" mandates not only the return of lost property but, a fortiori, preservation of life as well. The verse, then, does not refer only to the return of objects of material value. Accordingly, declares Azei ha-Levanon, restoration of health to a person suffering from an illness is assuredly included in the commandment "and you shall restore it to him."
Azei ha-Levanon further demonstrates that failure to provide a medical remedy, when available, entails violation both of the commandment "you may not hide yourself" (Deuteronomy 22:3), which, in its biblical context, refers to a person who comes upon lost property belonging to another and of the admonition "nor shall you stand idly by the blood of your fellow" (Leviticus 19:16). Sifra, Kedoshim 41, declares that these commandments establish an obligation making it incumbent upon an individual to act, if he is capable of doing so, in order to prevent his fellow from sustaining a financial loss. This obligation is recorded by Rambam. Hilkhot Rozeaḥ 1:13; Sefer ha-Hinnukh, no. 237; and Shulḥan Arukh, Hoshen Mishpat 426:1. It similarly follows that a person is bound by the selfsame commandments to prevent loss or deterioration of health if he possesses the requisite knowledge and skill to be of assistance in providing medical care. Failure to do so, concludes Azei ha-Levanon, would constitute transgression of these two negative commandments as well as of the positive commandment "and you shall restore it to him." Furthermore, Ramban, in Torat ha-Adam, observes that failure to render medical assistance entails abrogation of the positive commandment "And you shall love your neighbor as yourself." Thus, even in situations which pose no threat to life, a person in a position to do so is bound by no less than four separate mizvot to render medical assistance.
When his services are requested by a patient, a physician may not decline to treat the patient requesting his services even if other competent and equally qualified physicians are available to provide medical services. The Palestinian Talmud, Nedarim 4:3, declares, "Not by every person is an individual privileged to be cured." Medical diagnosis and treatment is an art and the personal dynamic between doctor and patient may play a crucial role in any given case. The confidence which a patient has in his physician may itself be a crucial element in therapeutic efficacy. Accordingly, Halakhah provides, for example, that, when his services are specifically requested, a physician may violate Shabbat restrictions in traveling to reach a patient even though another physician may be available to treat the patient without the need for any violation of Sabbath laws. The identical considerations preclude refusal on the part of a physician to attend a patient because of the doctor's own personal or financial considerations.
The administration of Laniado hospital claims that, in accordance with halakhic norms, its staff provided a full complement of medical services during the entire period of the strike.9See Lanaido Hospital News, Spring 1984, p. 1; The Jewish Press, June 24, 1983, p. 46; and Yedi‘ot Aḥaronot, June 28, 1983, p. 4; and The Jerusalem Post, February 1, 1988, p. 1. In declining to participate in strike action, the members of the medical staff of Laniado hospital complied with the halakhic ruling issued by the Klausenburger Rebbe, the spiritual leader of Kiryat Sanz, under whose aegis the hospital is administered. Rabbi Goren similarly counseled the doctors who consulted him that the dictates of Halakhah required them to return to duty. However, in light of the fact that the physician may charge a fee for his services, he advised that they announce in advance the fees demanded for their services. Rabbi Goren asserts that, under such circumstances, their demands would be actionable in accordance with the provisions of Halakhah.
Given the realities of the situation, the halakhic cogency of Rabbi Goren's advice with regard to financial compensation is not a pressing issue. Unfortunately, the striking physicians had no reason to believe that their employer, the Israeli government, would abide by the provisions of Jewish law in meeting the physicians' demands for compensation. Practically speaking, Rabbi Goren's advice amounts to a ruling requiring the physicians to return to work without any guarantee of a settlement favorable to them.
Nevertheless, it should be noted that Rabbi Goren's statement to the effect that, if the physician stipulates his fee in advance, he may compel payment in full, is correct as a general principle only if the amount stipulated is consistent with the halakhic principle which provides that a physician is entitled to compensation solely for physical exertion and time expended. An inordinate fee is collectible only if there are other physicians available who are equally competent with regard to the treatment of the specific illness for which the physician's services are sought. Rema, Yoreh De'ah 336:3, emphasizes that the physician may legally, if not morally, collect any fees stipulated in advance because even though he acts in fulfillment of a mizvah, his obligation with regard to the mizvah is no greater than that of any other physician and hence he may plead that the obligation is not incumbent upon him specifically. This, of course, is not the case if the doctor in question is the sole physician in the city or if he is in any manner uniquely competent to treat the malady. Accordingly, Teshuvot Radbaz, III, no. 556, rules that all authorities are in agreement that, if no other physician equally competent to treat the illness is available, the doctor cannot collect the stipulated fee if it is exorbitant. A later authority, Ẓedah la-Derekh, ma'amar 5, klal 2, chap. 2, counsels that standing upon one's rights in such circumstances may, at some future time, result in the doctor refusing to treat patients when he feels that the patient may not pay his fee.10Cf., R. Eliezer Waldenberg, Ramat Raḥel, no. 25.
There is, moreover, one additional consideration which Rabbi Goren overlooks. The physician who stipulates his fee in advance may collect the amount stipulated because acceptance of his services is to be construed as acquiescence to the terms stipulated. Such constructive acquiescence is inferred because the patient accepts the benefit conferred without demur. However, in the Israeli dispute, the doctors sought compensation, not from the patients, but from the government, or from the hospitals which employ them. The government might counter with the argument that, since it receives no direct benefit from the physicians' services, failure to engage in a lockout does not constitute acquiescence. The hospitals would, of course, contend that the level of compensation is set by the government and they are not legally free to contract for any modification of the salary scale set by government authorities.
Moreover, the government (and the hospitals) might plead that, absent a formal undertaking to make the payments on behalf of the patients, the physicians have no claim whatsoever upon the government. In the unlikely event that the Israeli government would agree to submit the matter to a din Torah these conflicting claims would of necessity be adjudicated by the Bet Din.
One aspect of Rabbi Goren's ruling obligating the doctors to return to their posts requires further comment. A physician may indeed not refuse to provide treatment when treatment is required by the patient and requested of that particular physician. However, an individual physician might circumvent any obligation which might devolve upon him by removing himself from situations in which his aid might be sought. In fact, at one point during the strike, the government ordered the physicians to return to duty upon pain of penal sanctions. The physicians attempted to avoid accepting service of those orders by making themselves physically unavailable. In a similar manner, in order to avoid incurring any halakhic obligations, they might make themselves unavailable to their patients by going away on vacation or by otherwise removing themselves geographically from their patients. Although the lives of patients might be endangered by such a course of action, each individual physician might plead that, since other doctors are capable of caring for the patients, he is under no personal obligation to make his services available. While, to be sure, such conduct would not merit approbation, it appears that the physician who acts in such a manner would technically not be guilty of a halakhic infraction.
Nevertheless, there is a method by which society can assure that medical services are provided on behalf of its members. Physicians can indeed be compelled to make themselves available for the treatment of patients. Such obligation with regard to providing treatment is quite independent of any claims they may have with regard to compensation for services rendered. Rema, Yoreh De'ah 261:1, rules that a mohel may be compelled to circumcise a child without compensation if the father cannot pay the mohel's fee. R. Eleazar Fleckles, Teshuvah me-Ahavah, III, no. 408, in his comments on Yoreh De'ah 336:2, rules that the Bet Din may similarly compel a physician to treat an indigent patient without a fee. Rema explains that, in the absence of a father who is capable of fulfilling the precept, the Bet Din is obligated to circumcise the infant. This must be understood as meaning that society itself is obligated to discharge the responsibility of circumcising the child and does so through the Bet Din which in this regard serves in an administrative capacity. Similarly, although no individual member of society may be obligated to provide for the medical needs of needy patients, society itself does have such an obligation. Hence, the Bet Din, or the appropriate administrative agency, may compel a medical practitioner to make his services available.11Cf., Ramat Raḥel, no. 24, sec. 3. R. Elijah of Vilna, Bi'ur ha-Gra, Yoreh De'ah 261:7, declares that the Bet Din may direct the mohel to circumcise the child by virtue of its general power and obligation to compel performance of a mizvah. The selfsame consideration would empower the Bet Din to direct a physician to provide medical care. Rabbi Waldenberg, Ramat Raḥel, no. 24, sec. 6, quite logically states that when more than one qualified mohel is available, the Bet Din must apportion the burden of circumcising the children of indigent parents among the various mohalim. The identical considerations would require that society assure that the burden of providing medical care be shared equitably by all physicians qualified to render such service. Hence the Bet Din might direct striking physicians to provide for the immediate needs of patients requiring medical attention. The Bet Din would then be duty-bound to call upon the services of all qualified physicians and to arrange that duty rosters be prepared in a fair and equitable manner. Physicians are, of course, duty-bound to obey the directives of the Bet Din in such matters. The obligation to render care in such manner is in no way contingent upon satisfaction of any monetary claims the physicians may have upon either society or their patients.
An interesting point regarding the level of services which must be provided is reflected in a letter addressed to the medical staff of Shaare Zedek Hospital signed by two leading rabbinic authorities and published in the Kislev 5744 issue of Assia. The signators, Rabbi Yitzchak Ya'akov Weiss and Rabbi Shlomoh Zalman Auerbach, report that it had come to their attention that the number of physicians available to treat patients fell below the number of physicians customarily on duty on Shabbat. Assuming that the Shabbat staff is the minimum necessary for purposes of pikuaḥ nefesh, those authorities declared that the members of the medical staff are obligated to assure the presence of medical personnel "not fewer [in number] than on the holy Sabbath days." Citing Shulḥan Arukh, Yoreh De'ah 336:1, Rabbi Weiss and Rabbi Auerbach admonished that "a physician who withholds himself from healing is guilty of bloodshed." In a subsequent letter which also appears in Assia, the same authorities emphasize that a physician may not withhold his services even in a situation in which he is called upon to treat patients because his colleagues, in violation of Halakhah, have refused to do so.
It should, however, be noted that it is unlikely that minimum staffing could be maintained for any significant period of time without placing the lives of patients in jeopardy. Hence maintaining medical staff at the Shabbat level for longer than a brief period of time would not satisfy the requirements of Halakhah.
In the same letter Rabbis Weiss and Auerbach advised that physicians may not participate in a hunger strike in order to draw attention to their demands for two reasons: (1) Any course of action which is deleterious to health constitutes a form of "wounding" and is ipso facto forbidden.
(2) Physical weakness induced by fasting would undoubtedly compromise the quality of care which patients would receive. A medical practitioner who provides inferior care, they assert, is also deemed to be a physician who "withholds himself from healing" and is "guilty of bloodshed."
Conversely, those physicians to whom medicine is a sacred calling who, conducting themselves in accordance with the norms of Halakhah, not only declined to participate in strike action but also shouldered the burden thrust upon them by absent colleagues, earned the reward vouchsafed to those who "preserve a life of Israel" and the esteem of all.