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Wednesday, October 25, 2006

The 9/11 scenario in Halachah

A. Background
Is it permissibile to shoot down a plane full of passengers in the 9/11 (or the Corey Lidle) scenario, where the plane headed for a building with occupants?

The passengers of the plane will certainly die upon impact, and some of the occupants of the building will likely die if the plane is allowed to hit the building. The question is, may one actively deprive the passengers of the plane of Chayei Sha’ah, a short span of life, for the sake of preserving the extended life span of the building occupants.

The place to begin this discussion is the well-known Yerushalmi in the 8th Perek of Masseches Terumos:

"A group of people who were walking on the road and non-Jews accosted them, and said: ‘Give us one of you and we will kill him, and if not, we will kill all of you, even if they will all get killed they should not hand over one soul of Israel. If they designated one like Sheva the son of Bichri [In Shmuel II:20 Sheva ben Bichri is demanded by Yoav, the general of David’s army, for rebelling against the king] they should hand him over and not get killed.

R’ Shimon ben Lakish said: This is only so if he is liable for death, like Sheva ben Bichri.

And R’ Yochanan said: Even though he is not liable for death like Sheva ben Bichri (it is still permissible to hand over the one who was singled out)."

The first Halacha here, that where no particular individual was singled out it is forbidden to hand anyone over, even if they will all die as a result, is recorded in Rambam (Yesodei HaTorah 5:5) and by the Rema (Yoreh De’ah 157:1).

This requires some elucidation. Generally speaking, one is obligated to give up his life rather than murder another, based on a Sevara of מאי חזית דדמא דידך סומק טפי - "Why do you think your blood is redder?", meaning that there is no benefit in killing the other person, since either way a Jew will die, so there is no reason to allow the murder. However, in the case in the Yerushalmi, if they do not hand over one person, they will all die, including the person being handed over, so why do we not allow the handing over of one person to save the others?

The Kesef Mishneh on the Rambam (ad. loc.) explains that the Sevara of Mai Chazis is only necessary when the non-Jew who is asking you to kill has designated another particular Jew to be killed. In this case, however, even without the Sevara of Mai Chazis it is clearly forbidden to hand over one Jew, since there is no way to determine who should be handed over, and we cannot condemn one to death more than any of the others, and therefore they must all die and not hand anyone over.

B. Can one volunteer to die to save the others?
Yes. In fact, it is a Mitzvah to do so. The Chazon Ish (Yoreh Deah 69) proves the permissibility of this act from the story of Papus and Lulianus (who confessed to a crime of murder that they did not commit in order to save the Jews who were under threat - Rashi to Taanis 18b), about whom the Gemara (Bava Basra 10b) says that no person is allowed into their exclusive area in Olam HaBa.

However, the reason for this is a dispute among the Poskim. The Chazon Ish (ad. loc.) says that the reason for this is that this is considered primarily an act of saving others and not an act of getting oneself killed. On the other hand, the Binyan Tzion (2:173) states that the reason for this is that since if he does not volunteer he will die in any event, it is permitted.

(An apparent practical difference would be in a situation where the person who is volunteering has a chance of escaping, where the Chazon Ish would still permit it, whereas the Binyan Tzion would not. This is not the 9/11 scenario, however.)

C. Can we assume that the passengers on the plane would willingly volunteer, and shoot down the plane?

In a Sefer called Mishnas Pikuach Nefesh [by R’ Yosef Aryeh Lorincz, Bnei Brak 5763] (Simman 50), the author (when discussing this 9/11 scenario) assumes that there is an Anan Sahadei - a clearly valid assumption - that the passengers would be willing to give up their lives in this scenario, and it should be allowed.

However, he points out that usually there are minors (below Bar Mitzvah) on the plane, and for them the Anan Sahadei will not help (I assume, since they cannot waive their own lives, and we
cannot do it for them).

Additionally, in the Sefer B’Chol Nafsh’cha (10:(32)) the author is not sure whether one can volunteer to be actively killed by a Jew to save the many. (He says that from the Yam Shel Shlomo to Bava Kama (8:59) it would seem that is allowed, based on what he writes regarding Shaul HaMelech committing suicide, but it still requires more thought).

D. What is the Halachah in the dispute between R’ Yochanan and Reish Lakish?

When the non-Jews do designate someone to be killed, who is not liable for the death penalty, may he be handed over?

This is a Machlokes Rishonim. The Rambam (ad. loc.) says that they may not hand over the Jew who has been singled out, in accordance with the position of Reish Lakish, whereas many other Rishonim decide the Halachah in accordance with R’ Yochanan [The Beis Yosef (Yoreh Deah 157) quoting the Rash to the Mishnah in Terumos and the Ran to Yoma 82a; Bach understanding of Semag (Lavin 165) and Semak (78); Issur V’Hetter HeAroch (Klal 59).]

The Rema (Yoreh Deah ad loc) brings both opinions.

The Bach and Taz (157:7) decide the Halachah in accordance with the Rambam.

However, in Teshuvos Rema (11) he holds that the primary opinion is like Rabbi Yochanan. This is also the position of the Shaar Efraim (72), Tiferes Yisrael (Mishna Terumos 8:12) and the Chazon Ish (ad. loc.) say that the Halachah is in accordance with Rabbi Yochanan.

Most authorities hold that Rabbi Yochanan’s position is only true if the one who is singled out will certainly die in any event.

E. What is the rationale for R’ Yochanan’s position?
This is a further dispute. From many Rishonim (Kesef Mishneh ad loc., Rashi to Sanhedrin 74b s.v. Yatza, Ran (Yoma 4a in the Rif folio), Ritva and Maharam Chalawa to Pesachim 25) it seems that the reason for R’ Yochanan’s position is that the Sevara of the Kesef Mishneh quoted above for the prohibition of handing one of the people over is no longer applicable. Since the one who has been singled out is going to die anyhow, there is no reason why he should not be handed over to spare the others.

However, the Maharam Shick (Yoreh Deah 155), the Chazon Ish (ad loc) and Igros Moshe (Yoreh Deah 2:60) all say that the reason why he may be handed over is because, after he has been singled out, he has the status of a Rodef. [However, the Igros Moshe there does end up proving that the Ran and the Rash hold of the first reason as above.]

F. Does this hold true even at the expense of the condemned’s Chayei Sha’ah?
Yes. This is clear from the Chazon Ish and the Igros Moshe. R’ Moshe explains that the reason for this is because whatever time there is in excess of that Chayei Sha’ah which they are depriving that person of, only he is a Rodef on the others, but they are not a Rodef on him for that time span, since he will not have that time to live in any event.

Presumably, according to the first reason mentioned in the Rishonim as well, there is still reason enough to hand the one who is singled out over the others, since his lifespan is inevitably limited to Chayei Sha’ah.

[Although the Yad Avraham on the margin to the Shulchan Aruch seems to disagree, the Sefer B’Chol Nafsh’cha says that that position is in accordance with Reish Lakish].

G. Can we extrapolate from the Hetter to hand over the person, that it allowed to actively kill him to save the others?
The Meiri (Sanhedrin 72b s.v Zeh) as well as the Arugos HaBosem (brought in the Hagaha to the Mordechai (end of Perek Arba Misos) say that, while one may hand over the Jew to a non-Jew, one may not actively kill the Jew.

However, the Sefer B’Chol Nafsh’cha says that this is not implied by the simple reading of the other Rishonim (since the logic used should apply to direct murder as well).

If we were to decide the Halachah in accordance with the position of Rabbi Yochanan, then, it would seem that it is permissible to shoot down the plane, since they will die in any event, and the occupants of the building will be saved as a result.

However, we cannot simply discount the weighty position of the Rambam on this issue, as there are major Acharonim who decide the Halachah like him, as above.

H. Are there Hetterim even if we were to decide the Halachah in accordance with Reish Lakish?
Perhaps.

a) There are positions in the Acharonim (Lechem Mishneh to Rambam ad loc., Tosefes Yom HaKippurim (Yoma 82) who hold that even Reish Lakish would only argue if there is some slim chance that the person singled out will escape. But if there is no chance at all, he would agree that he should be handed over.

b) The Chazon Ish (ad loc) discusses the following scenario:
"We must delve into a case where one sees an arrow about to kill many people, and he can divert it to a different side, where it will kill only one person on another side, and those on this side will be saved, and if he were to do nothing, the many will die and the one will live. It is possible that this is not the same as the case of handing over someone to be killed, since that handing over is a cruel act of killing someone, and in this act there is no salvation of others in the inherent nature of the act, it is only that the particular circumstance caused that this act will bring about salvation to others, so the saving of the others hinges on the handing over of a Jewish soul.

However, in the diversion of the arrow from one side to the other, there is essentially an act of salvation, and it is not connected at all to the killing of the individual on the other side, rather it is only now, in this circumstance, that there is another Jew on the other side. And since on this side many Jews will die, and on the other side only one, it is possible that we must make every effort to reduce the loss of Jewish life to whatever extent possible. After all, Lulianus and Papus were killed to save the Jews, as Rashi writes to Taanis 18b, and they say that no person can stand in their section.

However, here may be worse since he is actively killing, and we only find that we may hand over Jews, but to kill with one’s hands, perhaps we do not do so, and that which they killed Sheva ben Bichri was because he was a rebel against the king. But, this requires more delving into.

So, the Chazon Ish has a doubt whether one may do an act which is primarily one of salvation, which will actively kill an individual, to save the multitudes. It seems that the accepted position by the Sefarim on the topic is that the Chazon Ish permits this. [The Sefer B’Chol Nafshecha seems to understand that this case of the Chazon Ish is not really direct killing. He holds that the Chazon Ish’s doubt is only in real active murder, like swerving a car away from the many to run over an individual. Though I do not see how that fits into the language of the Chazon Ish.]

In the Sefer "Chashukei Chemed", which is a collection of Psakim by R’ Yitzchak Zilberstein Shlit"a of Bnei Brak in order of the Dapim on Pesachim, brings from the preface of the Pnei Yehoshua to his novellae on Shas, that he had vowed to dedicate his life to delving in to the depths of the Torah, after he was trapped under some collapsed buildings, and many came to save, "And those that they killed by their trampling (in the area) were even more than those who had originally died, although there was no way out of this, since their intent was to save and remove the rubble."

Rav Zilberstein understands that the Pnei Yehoshua is approving of what they did. (It seems to me that the language of the Pnei Yehoshua implies that the Hetter is because - if they don’t do this they would all die anyhow, in addition to this being an act with the intent of saving. This would be a parallel to the 9/11 scenario. Though it is not clear in the Pnei Yehoshua whether he would hold this to be true even according to Resh Lakish, nevertheless, in the final analysis, he says it is allowed).

I. Is shooting down the plane primarily an act of saving or of killing?
One could perhaps distinguish between that Pnei Yehoshua and the 9/11 scenario, wherein in the Pnei Yehoshua’s case they were not actually doing acts of killing, they were only inadvertently shifting debris that caused people to die.

Rav Chaim Kanievsky Shlit"a, quoted in the Sefer Mishnas Pikuach Nefesh, says that he is unsure whether this should be considered an act of killing or of salvation.

J. Is a situation of war different?
In the Sefer Mishnas Pikuach Nefesh, the author raises the concern that if we were to conclude that it is impermissible to shoot down the plane, we would be in a terrible quandary. Our enemies could take a few Jews from their countries, put them on a plane (with a nuclear bomb!) drop it on the concentration of the Jews!

He therefore says that in the context of war, the rules are different. Here, everyone must fight and be willing to sacrifice his life to save the multitiudes from the enemy, and therefore it is allowed to down the plane although we are killing Jewish passengers.

This would even be true if there were children on the plane who are not obligated to fight against the enemy, since that is the Halachah, that in war we sacrifice the few to save the many.

And, so, a plane hijacked by terrorists would come under the rubric of war, and would be permissible, especially in light of Rav Yaakov Kamenetzky’s position on the impermissibility of ransoming the kidnapped Rav Hutner, on a hijacked plane, at the time, due to Israel being engaged in a war with the Arabs since ‘48.

[What would be in a case where one is not sure whether a terrorist attack is being perpetrated, like initially on 9/11, or in the Corey Lidle case, is an interesting question]

K. Conclusion:
We have a number of Tzedadim that would allow for downing the plane:
1) If all the occupants are adults, based on an assumed volunteering to save the multitudes.
2) If we hold like the many Rishonim who hold like Rabbi Yochanan, as some Acharonim aver, it would likely be allowed.
3) Even according to the Rambam and Resh Lakish, if it is clear that they will all die if nothing is done, some Acharonim say that it is allowed.
4) This may constitute primarily an act of salvation, with the killing being a side-effect, which is probably allowed according to the Chazon Ish.
5) In the context of war, this would certainly be permissible.
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Monday, October 23, 2006

Rav Moshe Feinstein on Government

This post is in reaction to Jak Black's over at Mishmar . It is a translation of Darash Moshe Derush 10 (page 415) in the standard edition:

"Remember that which Amalek did to you etc., do not forget". It is seemingly not understood what purpose there is in remembering the action of Amalek orally and in our hearts. What can we do about it?

However, the Passuk in Parshas Tetzaveh answers this, in that it seems difficult, that here (Parshas Tetzaveh) is not the place where Bnei Yisrael are commanded (about lighting the Menorah with pure olive oil), rather Hashem is only saying now that He will eventually command them, as Rashi explains in Parshas Emor (24:2), and, if so, what purpose does it serve now? This is not done by the other Mitzvos!

We also must understand the reason that the Torah commands that it be pure-pressed oil, that never had any sediment, since it will burn with sediment as well.

The reason is that the Torah is telling us a great thing. Every empty belief in the world, and every vapid value system in the world, declares that it illuminates the world, and portrays some nice things to mislead the eyes and to ensnare souls. But since many people are not interested in it, they force their opinions upon anyone they can with swords and spears, that they should accept their beliefs and value system, as is known in every period and era, whether in beliefs or value systems, whether in the past or present, and even more strongly so (now) such as with (Communist) Russia and Germany and the like. This is the sediment in their light, and in the end all that is left is only the evil and not the system that they portrayed, which they no longer have any use for since they have a sword and a spear. And it turns out that since there was sediment mixed into their light, which is the waste of the sword and the spear, there was room to err ansd think that the sediment provides light, until, finally, all that is left is the sword and spear alone, and the light is completely extinguished, as we saw with our own eyes with Russia and Germany on both extremes.

And we derive from this that no government, which is the authority, has the right to accept one particular belief or value system, because in the end all that will remain is force, devoid of values, and there will be destruction in the world, as we see with our own eyes.

If so, there is a difficulty, since the path of the Torah is also that the Jewish government supervises the law of the Torah as well, and this is represented by the Mikdash which is the foundation of our Nation, and if so, how can we have a claim against the Kings of the Nations that they supervise their beliefs and values?

The answer to this is that it is true that the Jews can hand over the implementation of the Torah to their government as well, because in the end He will command them to light in the Menorah only pure-pressed oil that was never with sediment, meaning that only with the light of the Torah will it be illuminated, in that it is a wise and understanding Nation, to influence the entire world, as it was in the days of David and Shlomo that all the Nations streamed to them, and many converted, out of a pure love for Hashem and the Torah, because it is forbidden for the Jews to force other Nations to convert, and we do not coerce any nation or country to do so, and on the contrary, we do not accept converts if there is even a doubt whether they want to convert because of some fear or other mundane matter, and therefore there is no need to be concerned about this - rather the righteous king will see, through the might of the wisdom of the Torah, to influence the entire world.

And even those among the Jews who are liable for the death penalty - it is so difficult to have an individual be liable for the death penalty! For only righteousness and justice is our our light, with no addition of sediment. And therefore Hashem hurried to inform us, in the middle of the commandment to erect the Mishkan, to answer that which Hashem gave over the Torah to the leadership of the monarchy, that they need to use pure olive oil, although here is not the place for that commandment.

Now, Amalek, who came to fight against the Jews, also had a value system. They wanted to show, erroneously, that there was nothing miraculous about the Jews and there is nothing to fear about them, and if so they should have initially argued with words and to show that they were right if they could, or to admit that they were wrong if they could not. But they did not do so. They came immediately to fight. They showed that the primary part is the sediment. So we must remember, orally and in our hearts, so that we know that any belief or value that uses its authority and force, and is not satisfied with its light alone, is full of vapidity and lies and they are merely fooling the public, and that is the benefit of remembering Amalek for us as well.

We conclude from all this that any kingdom from the Nations of the world is not allowed to espouse one particular belief system. It must only do its job, which is to make sure that noone wrongs his fellow by stealing or murdering, for without the fear of government each man would swallow his fellow alive, but regarding value systems and beliefs and other things everyone must be free to do as he wishes.

And if so, the government of the United States, which already 150 years ago set as a law for its government that they will not espouse one particular belief or system, rather each man can do as he pleases, and the government will only ensure that one man does not swallow his fellow, they are doing the Will of G-d, and therefore they were successful and they became great during that period. And we are obligated to pray for them that Hashem grant them success in all that they endeavor.

And soon may Yehudah and Yisrael be redeemed, Amen.
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