• September 21, 2020
  • 3 5781, Tishrei
  • פרשת ויגש

Lesson 3

Hello Everyone,

Philosophy students are often challenged by their teachers to solve what is known as “the trolley problem.”[1] The problem is as follows: Imagine yourself standing by a lever which controls a section of trolley tracks. A trolley is coming down the rack and is headed for a large group of people. If you do nothing, then the trolley will collide with the large group of people killing m and injuring many, if not all of them. You have the opportunity to pull on the lever which will send the trolley down a different section of track where a man is tied down. By pulling on the lever you will surely kill the man tied to the track but you will have saved the others. What should you do?

This question has ( as far as I know) no easy answer. An entire body of literature known as  “trollyology” has grown up around this problem and it has been analyzed and reformulated from many different aspects.

There is of course no easy answer to the trolley problem ( hence its appeal to teachers as tool for provoking debate in the classroom).  Yesterday we saw the Halachah’s equivalent of the trolley problem. However, unlike the trolley problem this was a real and terrible problem which was placed before the rabbis of the Kovno Ghetto[2] during the Holocaust.  This is the story told by Rav Ephraim Oshry who survived the ghetto and published the Halachic rulings that he was called upon to give during the Holocaust period in a multi-volume work titled “. שו”ת ממעמקים”

The SS commander of the ghetto told the Jewish council that he is presenting them with 5000 “white cards.” These “white cards” were to be distributed to the workers in the ghetto. Only workers holding these white cards would be allowed to remain in the ghetto with their families. All of the other prisoners of the ghetto would be sent away. At that time the population of the ghetto was about 30,000 people of whom there were 10,000 workers. What should the Jewish council do? By distributing the cards they would be sentencing the non-recipients to death. Do they have that right? Perhaps they should simply refuse to cooperate and let the Nazis ימ”ש make the selection themselves? Must they prevent people from stealing cards, since those poor people were only trying to save their lives?

These were the choices that Rav Oshry zt”l  and the Rabbi of Kovno, Rav Avraham Shapira zt”l faced.

Rav Oshry  addressed the issues basing himself on the suggyaot which we studied yesterday.

Murder is one of the three sins which a person may never violate. The reason that murder may never be condoned is not learned from a דרשה. This absolute prohibition is based on a simple logical argument taught by Rava:

תלמוד בבלי מסכת פסחים דף כה עמוד ב

מאי חזית דדמא דידך סומק טפי דילמא דמא דההוא גברא סומק טפי

A man came to Rava with his own, personal “trolley problem.” The ruler of his town gave him an order, kill a certain person or you will be killed. This unfortunate man came to Rava seeking guidance; what should he do? Rava said you may not kill that person. How can you say that your blood is redder than his, may his blood is redder than yours?

Rashi explains Rava’s statement:

רש”י מסכת סנהדרין דף עד עמוד א

מאי חזית דדמא דידך סומק טפי – מי יודע שיהא דמך חביב ונאה ליוצרך יותר מדם חבירך, הלכך אין כאן לומר וחי בהם ולא שימות בהם, שלא התיר הכתוב אלא משום חביבות נפשם של ישראל להקדוש ברוך הוא, וכאן שיש אבוד נפש חבירו לא ניתן דבר המלך לדחות שצוה על הרציחה.

We saw in the first class on Kiddush Hashem that for 610 out of the 613 mitzvot the pre-eminent obligation is the preservation of life- “.וחי בהם” Only three prohibitions, idolatry, sexual immorality and murder, are the exceptions. Murder, Rava explained, is excluded from וחי בהם because no life will be saved by violating the prohibition of murder. Yes, it is true that this unfortunate man was trapped in a horrible situation by a despotic rule. Nevertheless this man has no right to take another’s life to save his own.

This is one discussion about the prohibition of taking another person’s life. There is a second discussion in the Talmud Yerushalmi:

משנה מסכת תרומות פרק ח משנה יב

וכן נשים שאמרו להם עובדי כוכבים תנו אחת מכם ונטמא ואם לאו הרי אנו מטמאים את כולכם יטמאו את כולן ואל ימסרו להם נפש אחת מישראל:

תלמוד ירושלמי (וילנא) מסכת תרומות פרק ח

תני סיעות בני אדם שהיו מהלכין בדרך פגעו להן גוים ואמרו תנו לנו אחד מכם ונהרוג אותו ואם לאו הרי אנו הורגים את כולכם אפי’ כולן נהרגים לא ימסרו נפש אחת מישראל ייחדו להן אחד כגון שבע בן בכרי ימסרו אותו ואל ייהרגו

א”ר שמעון בן לקיש והוא שיהא חייב מיתה כשבע בן בכרי ורבי יוחנן אמר אף על פי שאינו חייב מיתה כשבע בן בכרי

עולא בר קושב תבעתיה מלכותא ערק ואזיל ליה ללוד גבי ריב”ל אתון ואקפון מדינתא אמרו להן אין לית אתון יהבון ליה לן אנן מחרבין מדינתא סלק גביה ריב”ל ופייסיה ויהביה לון והוה אליהו זכור לטוב יליף מתגלי עלוי ולא אתגלי וצם כמה צומין ואיתגלי עלוי אמר ליה ולמסורות אני נגלה א”ל ולא משנה עשיתי א”ל וזו משנת החסידים

The Mishnah discusses a case where a group of women is surrounded by men who demand that one woman behanded over to them to be raped. The women are threatened that if they do not comply then they will all be raped. The Mishnah says that they must refuse to comply- it is forbidden to hand a Jew over to the gentiles.

The Talmud Yerushalmi then quotes the Tosefta.. The Tosefta says that if a town is surrounded and the forces surrounding the town demand that one Jew be handed over to be killed. These forces threaten the townspeople that if they do not comply then they will enter the town and kill everyone. The Tosefta says that the townspeople  may not comply- it is forbidden to hand over a Jew to be killed. But the Tosefta makes an exception to this rule. If the person whom the gentiles are demanding is someone like שבע בן בכרי then the townspeople may hand him over and save themselves.

Who was שבע בן בכרי? He was a man who launched a rebellion against דוד המלך and so was condemned to death as a rebel. Why does the Tosefta say that we may handover a person “singled out like “? שבע בן בכרי” Resh Lakish says that the Tosefta means that we may only hand someone over if he is justly condemned to death as שבע בן בכרי was sentenced to death. Rabbi Yochanan says that שבע בן בכרי is merely an example of someone who was singled out by a besieging army.[3]

The Yerushalmi then goes on tell the story of Rabbi Yehoshuah ben Levi. There was person named Ulla bar Kushav who was  being pursued by the Romans. Ulla fled to the city of Lod where Rabbi Yehoshuah ben Levi lived The Romans demanded that Ulla be handed over to them. If this would not be done the Romans threatened to kill everyone in Lod.

Rabbi Yehoshuah ben Levi tokk the Roman’s threat seriously and he sought out out Ulla. He spoke to Ulla and persuaded him to surrender to the Romans.

The story goes on. אליהו הנביא used to visit Rabbi Yehoshuah.  After the incident with the Romans and Ulla, Eliyahu stopped visiting him. Rabbi Yehoshuah fasted many times and eventually Eliyahi came to him. Upon seeing Rabbi Yehoshuah, Eliyahu said that he is not in the habit of visiting informers. Rabbi Yehoshuah protested his innocence, citing the Tosefta which says that if someone was singled out by the besieging force he may be handed over. Eliyahu replied:

וזו משנת החסידים?

We saw two suggyaot. According to Rava in the Bavli, murder is never condoned because it can never be morally defended. No one can ever say that his life is more valuable than another’s. No one can ever commit murder according to Rava. But Rava’s argument should teach a second lesson. No one should ever be expected to give up his life to protect someone else. If my blood is not redder than his, can he claim that his blood is redder than mine? Why then does the Rambam hold like Resh Lakish who says that the only person who can be handed over to be killed is the person who is actually deserving of death? Why must I protect someone at the cost of my own life?

The Kesef Mishneh in his commentary to the Rambam asks this question. He answers that Resh Lakish may indeed have a different theory for explaining why murder is יהרג ועל יעבור and he may not accept Rava’s theory. What would be defensible according to Rava would not be defensible to Resh Lakish and the Rambam who rules like him.

The Chazon Ish wrote on this subject. He explains the Tosefta according to the rules of רודף . A רודף is a person pursuing another person with the intention to rape or kill her. A רודף can be killed by any onlooker. The Chazon Ish says that when a person’s presence in a city threatens the entire city he is in effect a רודף and the people of the city have the right to protect themselves. The מחלוקת between Resh Lakish and Rabbi Yochanan is how to apply the law of  רודף to the situation of the Tosefta. According to Resh Lakish the fugitive is a רודף only when the gentiles claim that he is guilty of a capital crime ( as was the case of שבע בן בכרי). If however the fugitive has been singled out for no reason then he is not a רודף and we have no right to hand him over.

Rabbi Yochanan says that we can only make decisions based on the present state of affairs. If right now gentiles have laid siege to a town and how demanded that someone be handed over to them, that person, tragically and through no fault of his own, has become a רודף and the people of the town have the right to defend themselves by handing him over.

This is a summary of yesterday’s shiur. Thanks to everyone who participated. Next week I hope to study with you the teshuvah of Rav Oshry zt”l to see how he ruled in the ghetto of Kovno.

Stuart Fischman

[1] https://www.psychologytoday.com/blog/is-america/201401/trolleyology

[2] https://en.wikipedia.org/wiki/Kovno_Ghetto

[3] See Shmuel 2 chap. 20.