Andrew Bellinfante: Welcome to Responsa Radio, where you ask and we answer questions of Jewish law in modern times! I'm Andrew Bellinfante, sitting in for Rabbi Avi Killip, as we record live from the Limmud conference here in the UK! I'm here with Rabbi Ethan Tucker, Rosh Yeshiva at Mechon Hadar, a center for higher Jewish learning based in New York City. Alright, Ethan, you ready for the first question?
Rav Eitan: Yeah, how are you, Andrew? Enjoying our time here in the UK?
Andrew Bellinfante: I have never been to Limmud before, and I have never been to the UK before, and I'm having the best time!
Rav Eitan: It's awesome, it's like reverse American invasion here with Responsa Radio.
Andrew Bellinfante: I love it, I love it.
Rav Eitan: Fantastic.
Andrew Bellinfante: Learning new terms, learning about filter coffee. Yeah.
Rav Eitan: Good stuff. Alright. Yeah, what do we got this time?
Andrew Bellinfante: Okay, so I have a question that is both general and specific, and I think you'll like this one, because we are actually — it's at the cutting edge of the technological world and the halakhic world at the same time.
Rav Eitan: Okay.
Andrew Bellinfante: So the question is that was sent in, "How would halakhah have us program driverless cars in order to maximally respect life? More generally, I have a question about halakhah's added value to that process in and of itself. Wouldn't some sense of standard morality, such as the notion of being kind to others, get you to mostly the same place in that question? And is halakhah just our Jewish language for that general conversation, or does halakhah provide a useful perspective for these discussions, or is general morality sufficient enough?"
Rav Eitan: Okay, small question.
Andrew Bellinfante: Yeah.
Rav Eitan: This is a really interesting one. Yeah. So — let's start with the specific. Here, I guess there's basically two texts that I think ultimately kind of anchor our discussion here. So, this notion of kind of picking some people's lives over others, I mean, I think the question here of the driverless car is basically, what should the car do if you're in a situation where it seems like you're about to plow into a hundred people who have just shown up on the street, and the car could save those hundred people's lives by suddenly throwing you into a brick wall, which would probably kill you, but will save those hundred people. For those who engage in this sort of moral philosophy, this is what's often known as the trolley car problem, you can kind of switch tracks of a trolley that's plowing along to mow down fewer people. So, the Tosefta, one of our earliest texts, deals with a version of this issue. It talks about a group of people who are located somewhere and gentiles, who are always, you know, the boogeymen, bad guys in these stories in rabbinic sources, gentiles come and they say you're gonna hand over one of your group and we're gonna kill them, and if you don't do that, we're gonna kill all of you. Alright? So it's pretty much straight-up trolley car problem type thing. And the Tosefta, interestingly enough, says they all have to die rather than handing over, actively handing over one person to be executed.
Andrew Bellinfante: I just want to clarify one thing, which is that if the onus is on the person to actually give someone over versus that person perhaps being killed without the responsibility being handed to them first, they have to choose the mass?
Rav Eitan: That's right. So, we'll come back to this, because that might be a key element of this story. But if a Jewish person in this text is required to pick one person over the entire group, even though that person is in that very same group, they actually have to let everyone die rather than actively singling someone out for death. Except — it's a rabbinic text, so of course there's an "except" — except if it's a case like Sheva ben Bichri. Okay, he's not, like, the most well-known character in Tanakh, but some people might know, I hope my kids know who he is. There's a great story of Yoav, who's David's general, who is going out and kind of tamping down various rebellions across the country.
One of the main rebels at the time is Sheva ben Bichri, and he goes all the way up to Avel Beit Machai in northern Israel and hides out there. And Yoav comes to the town and says, you hand over Sheva ben Bichri, or I'm wiping out the whole town. And then there's interesting mysterious isha chachama, a wise woman, we don't know exactly who she is, different midrashim have a take on who she might be, but she basically says no problem, cuts off Sheva ben Bichri's head, and throws it over the wall. And the text seems to approve of this as a means of resolving the dilemma, so the Tosefta says if it's a case like Sheva ben Bichri, where the person coming to kill, and here, by the way, it's a Jewish, as it were, general, right, who's coming on a mission, if he has named the person he wants you to hand over, such that you're not really selecting him out, then you hand the person over rather than having the whole group die.
Andrew Bellinfante: Meaning that the person who is doing the murdering already knows who they want killed?
Rav Eitan: That's right. So the notion here seems to be, it is unacceptable for you to play a role in essentially marking the person for death, but if the person has been marked for death, then you are essentially just facilitating a process that is inevitable. Now, you then have further discussions around this. Rabbi Yehuda comes along and then says no no no, not so fast, we only say you're not allowed to hand someone over when the marauding forces, when the gentiles or the army that's coming to kill is outside the wall and you're inside the wall.
Andrew Bellinfante: Meaning what?
Rav Eitan: Meaning there's still some distance between kind of the moment where they're gonna execute someone, and maybe there's still some hope that they won't break through, and you are actively putting someone into danger when you're not actually sure if everyone's gonna die. But once they've breached the walls and they're inside, then since everyone's gonna be killed, if they offer you the ability to save the city by handing over a person, then you can do it. And that seems to be even if, right, they haven't even named someone. You can then save yourself in that way.
Andrew Bellinfante: Got it. So, do not take any action until there's a real and serious and imminent danger, and then don't hand over the person unless they were named.
Rav Eitan: Yeah. And I think it's something even more than a real and imminent danger; it — has the die been cast of this person essentially being a dead man walking? And until that time has happened or until all of you are labeled as dead men walking, then, you know, you can't do anything until that point. Now, there's one last opinion here. This is — I'm gonna get to, this is one of the things I think is the contribution of how rabbinic sources deal with these things, but Rabbi Shimon comes along and says, no no no, you've gotta understand, Sheva ben Bicrhi was a rebel against the Davidic kingdom, and therefore he was mored b'malkhut, as a rebel he was already liable to the death penalty. And that's why, that's why you are justified in handing him over, only because he already deserves to be killed. But says Rabbi Shimon, don't think that just because the enemy has named someone innocent, then you can hand them over. If you want to stick to this precedent, it means you can hand over a guilty person who you basically think deserves to die in order to save the rest of the city. Now that pretty much eviscerates much of the precedent at that point, and takes them in a totally different direction.
So let me just add one other source. That's the Tosefta. We'll somehow get back to a driverless car. The Yerushalmi then tells an amazing story. It says there was a man named Ulla bar Kushav, and the kingdom, which, this seems to be the Romans, come after him and want to kill him. And he goes and he escapes, and he ends up in Lod, in the town of Lod. Not as exciting a place today, but okay. Lod is where Rabbi Yehoshua ben Levi lives. And the entire, a Roman legion comes and surrounds Lod in order to demand Ulla bar Kushav's, you know, extradition, as it were. And they say if you don't hand him over, we're gonna wipe out this entire town. And so then Rabbi Yehoshua ben Levi gets involved, he goes over to Ulla bar Kushav, and he convinces Ulla bar Kushav to hand himself over to the Romans in order to save the town. So he doesn't hand him over; he convinces himself to hand him over, and that seems to resolve the standoff. But then the Talmud continues and says, you know, Rabbi Yehoshua ben Levi actually used to receive frequent visits from Elijah the Prophet. And after this episode, he stopped appearing to him. And this rattles Rabbi Yehoshua ben Levi, and he fasts many fasts, and finally after this display of piety, Elijah comes back to him and appears to him, and he says what, should I appear to someone who hands Jews over to the gentile authorities? And he says, but didn't I just follow the Mishnah? Doesn't the Mishnah say that when, or the Tosefta say that when gentiles come and demand a specific person, you can hand them over? And Elijah says, zo mishnat hachasidim, is that the Mishnah of how pious people behave? Now, this is a very interesting and odd text. On the one hand, Rabbi Yehoshua ben Levi clearly has the law on his side, he seems to be doing exactly what you're supposed to do. But Elijah is basically saying, that's very nice that that's the law, but that's not what I consider to be the kind of pious behavior that I'm looking for when I decide who I descend from heaven to appear to.
Andrew Bellinfante: There's a lot to unpack there. Well, first of all, I think in each of the examples you gave, which I think is fascinating, the question of morality actually keeps popping up. It's like, do we decide someone's fate, how do we decide who dies and who lives, what's our actual responsibility in that, if someone's already marked we actually don't have a say in that, can we actually martyr ourselves for the greater good, and does that make us more religious or less religious, in which ways, and also how do we deviate from codes or laws in order to be more ethical or less ethical? I mean, I could ask a hundred questions.
Rav Eitan: Yeah. There's so much in this text. Let's see if we can bring it back to the driverless car, right? On some level, this text is giving a perspective, this text is offering a perspective that says there is a problem in being the agent of a decision that will take someone from being out of harm and putting them into harm, and actually even if they're potentially in harm's way but, you know, it's sort of random and an external force that's causing it, for you to step in and become the human agent of responsibility specifically killing them in this way, or handing them over to the agent of death, that is problematic and unacceptable. That whole sort of thrust would seem to militate against if we're thinking from a human perspective, right, certainly allowing someone when they're in a car, right — let's go back to the trolley car example — and they see a hundred people that have suddenly stepped onto the road from making the calculus, if anyone even makes a calculus of this sort, right, to actively turn the wheel to kill someone else who was not in the picture — on some level that's even worse in this case, because part of what's striking about this case is, it seems the person you want to hand over to the authority is probably gonna die anyway. And you still can't hand them over; there's actually an imperative to let more people die rather than to dirty your hands with this sort of approach.
So, all the moreso, suddenly turning the car to kill someone else, or even yourself, who are not particularly in danger at that moment, would seem to run against what this text is doing. However — right, there's two caveats here. So the first is, we're dealing with a machine. Here's an example where I'm not quite sure exactly where we go with this. In other words, should we think of the programming of a driverless car as analogous to the person themselves who is the programmer, as it were, or the purchaser who buys the car, is now actually handing the person over to death? That, you know, sort of future victim is now being programmed for death in a way that makes this a sort of forbidden program to write? Or is putting in a sort of abstract program without the case being in front of you a place where actually you're no longer bound by some of the variables that are being raised here. So that's a caveat one. Caveat two is, of course, questions that involve you putting your own life at risk, as opposed to someone else, also raised other issues.
So, even if we could imagine maybe justifying programming a driverless car to minimize casualties of other people, because we don't think that the issues raised in these texts apply to kind of a program programmed for some future, abstract situation, to create something or to expect someone to buy something that will put their own life at risk and not prioritize their own life, runs up against another precedent, and this is a famous debate between Ben Petora and Rabbi Akiva, the case of two people going in the desert and they end up with one flask of water, and there's enough for one of them to drink but not for both, Ben Petora actually says yeah, they're both supposed to drink half and watch each other die. Which, in a way, is actually an extension of this thinking here: even when it comes to yourself, you can't actually take a situation where you're gonna mark one of you for death; you'll have to let as the circumstances take you.
Andrew Bellinfante: In effect, human life is equal.
Rav Eitan: Totally equal, there's no way to reconcile; each human life is infinitely valuable in that way, you can't make any kind of judgement. Rabbi Akiva comes along and says, well, that might be true in the abstract, but here we have a situation of your life from your perspective, of course, always comes before the life of your neighbor. Now, we could ask whether that's a moral principle or a kind of almost necessary principle of acknowledging how human beings behave, and sort of giving it some legitimacy in the eyes of the law.
Andrew Bellinfante: Think about when you get on an airplane, you're supposed to put the breathing mask over someone else before you do your own, right? On your own before you put someone else's?
Rav Eitan: Right. That's probably based on the theory of you'll, like, lose consciousness and will lose focus and you won't get your kids' mask on.
Andrew Bellinfante: Okay.
Rav Eitan: But you're right, it actually probably does fit well with people — well, the first thing is this. I mean, parents is always where that kind of breaks down. Parents, I think, do and would put their children before them, which is why they're probably sending that message.
Andrew Bellinfante: I would just add, we should at some point in this conversation get to what happens when family members are involved in this equation, or people we love or are in a relationship with in some way.
Rav Eitan: Yeah. So I think we can go into all the depth of that, but there's a sense in which the imperative to preserve oneself and then plausibly certain, you know, circles around oneself in a way that privileges those against, above and against other people, reflects some notion that that's actually how human beings work, with some sense of self-preservation followed by working in smaller groups, followed by slightly larger groups.
But coming into tension with some notion of, but at some fundamental place, all of life is sacred and equal. So, I think — let me go to the larger question of here, what is halakhah contributing, and then maybe we can come back to at least some tentative answer on the car. The questioner's question of, well, how does halakhah look any different, right, couldn't we just have an article in The New York Times playing out the options that are available to us without any reference to Jewish sources. So first of all, like, on some level yes, meaning there's some level at which sure, I don't think that someone who is, doesn't have these sources is incapable of having in-depth moral engagement with this question. But there are actually two things here that I think are important, and I don't know if they're totally exclusive to halakhah or to this current moment where halakhah is asked to speak, but they are significant.
The first thing that runs through that first source is the notion that your action of singling someone out might be more significant than the consequential results of one decision or the other. Meaning, at the end of the day, I mean, often this is what's talked about in moral philosophy, is the difference between utilitarianism as opposed to a more deontological approach. Utilitarianism ostensibly says, lt me see what's gonna maximize the most good for the most people, and it's from that framework that we tend to think, well of course you save the hundred people as opposed to the one. And truth be told, that's how most of our governments work, that's how most of our public policy works, and it becomes painful on individual cases, but that's the game we're playing.
A deontological approach says, well, wait a minute, don't I have to start from the place of asking, is this an acceptable way for a human being to behave as an actor? Sure, maybe in one case a hundred people will die and in the other case one will die, but in the case of the hundred people, at least the human being is refusing to be complicit in the machinery of death. Whereas in the life-saving action of curving the car away to the one, there is actually a meaningful sense in which you involve yourself, and it ceases to be a kind of act of G-d and tragedy, and potentially an act of murder. Now, I think that's important, I don't know. That, I'm not sure I would want all of our ethics to be conducted only on the deontological plane, certainly not when we get to the level of states and societies, but there is something that I think is lost in a lot of our contemporary discourse which is very live in halakhah, which is something beyond results sometimes matters. There is something about actually your moral responsibility and culpability. That's one thing I think that's contributing.
Andrew Bellinfante: So, I would add or respond to that by saying that, with the driverless car example, just to bring it back here, it's like on some level we all know that when we apply to and do our driving test for our license, we are in some ways responsible for the lives of the people that we're driving, for ourselves and for the people that we may or may not get into an accident with. With the driverless car, we're actually given the dilemma of how do we program morality into a computer, and all of a sudden we are even more responsible for hypotheticals as opposed to, uh-oh, I accidentally, my hand slipped or I wasn't wearing my seat belt or any other number of factors that might come into play, where we actually can't take responsibility for those things. And in this situation, we're actually saying, well, if it is the case that we're gonna hit one person versus a hundred, I have to tell you that before it even happens, and that is the heart of the question. It's actually like, how do we make those decisions when we're forced to, as opposed to when they happen on the fly or in some accidental way.
Rav Eitan: Yeah, I think that's right. I think that's definitely right. You know, second dimension that I think this discourse brings that is somewhat unique is precisely what makes it a little hard to follow the Tosefta at first, which is, wait a minute, they said this, then they gave an exception, then Rabbi Yehuda came along and said this, then Rabbi Shimon came along and said this — I actually think it's a virtue. That is to say, there is something about halakhah that does a marvelous job at producing some degree of ambiguity, and I actually think that's probably where you want to remain with certain issues like this, even as you gotta make decisions, but when you're dealing with life and death, I'm not sure I want an answer of, yes, the absolute right thing to do is to kill the one person and let the hundred survive. There's some notion here of the multivocality of halakhah that I actually think brings something very important, and that pushes to sort of extreme and limit cases in a way that's helpful. One other text on this, just by way of sort of, I think, getting people to understand that the personal issue, how self-preservation plays an important role: the Rabdaz, Rav David ben Zimra, who was in 16th century Egypt, receives a question asked, what does someone do if they are threatened, I'm either going to chop off your arm in a way that won't endanger your life, I'm gonna chop off your arm, or kill this other guy.
Andrew Bellinfante: Define "threatened" for one second. What does that mean?
Rav Eitan: Meaning, you are placed in an impossible situation, someone's putting a gun to your head — not putting a gun to your head in the 16th century, but I don't know, putting an arrow to your head, whatever — and are essentially saying the choice here is not one person dying or a hundred people dying; it's your arm versus his life. And the Radbaz sort of confronts the fact, in this responsum, that if you are just doing a utilitarian math calculus here, you would say, well of course it's an obligation to give up your arm. I mean, how can you possibly say that your arm is worth more than someone else's life? And yet, he says, how could you possibly imagine that there's an imperative for someone to have their arm chopped off? It's actually an amazing piece.
Andrew Bellinfante: Right.
Rav Eitan: He says, I can tolerate the notion that maybe it's not forbidden to have your arm chopped off; maybe it's even the pious thing to do, maybe that's the kind of person Elijah would come and visit, but that's a far cry from saying really, the religious obligation is for someone to completely go against the entire instinct of self-preservation, and if they don't do that, they are a murderer vis a vis that other person, or complicit? And he interestingly comes out in this place where he basically says, right, that can't be. Again, I might have some praiseworthy things to say about someone who could take themselves to that level, and that is encoding, I think, in a deep way the self-preservation piece.
So, I have to think about this one more, but I think my tentative answer on this, and this has been borne out by some of the surveys that have been done — I think it's very hard to make an argument that one, people would buy, or two, you should program a driverless car not to have as its primary responsibility keeping its driver safe. In other words, as a sort of starting piece, and I think from the perspective both of halakhah and human nature, even though it does not fit perfectly with the utilitarian calculus, that feels like it is something that both makes sense and is reasonable for people to want when they get into a vehicle of that sort. Where I feel much more open is whether the whole discourse of preferring this kind of tragedy to that kind of tragedy might be amenable to a more utilitarian calculus when you are already dealing with programming something in the abstract such that I'm not now picking this person up and handing them over to the Roman authorities.
And here, I guess one frame that I saw that's maybe helpful, the Chazon Ish, one of the great halakhic authorities of the 20th century, tried to deal with his own version of the trolley car problem, dealing with an arrow going into one group of people as opposed to another, and say if the person redirects the arrow from the larger group to the smaller group, maybe it's not right to think of it as they're killing the one; it's just that they're saving the hundred. It's then an unfortunate circumstance, an unfortunate result, that as a result of saving the hundred, a person is going to die, but that perhaps actually we should abstract out from those cases, that's different when you're dealing with a sort of impersonal force of violence or act of G-d than when you're talking about grabbing someone by the collar and handing them over to a general demanding their neck.
Andrew Bellinfante: Fascinating. I mean, there are problems that that situation presents also, but it's a beautiful non-answer.
Rav Eitan: Alright, we like non-answers on this show, as long as they're helpful.
Andrew Bellinfante: Do you have a halakhic question you'd like answered on the show? Email us at halakah@hadar.org. You can also leave a message at (215) 297-4254.