Introduction
In re A was decided by the English courts in 2000.Footnote 1 In that case twin girls, named Jodie and Mary for purposes of the decision, were born joined together at their lower extremities. Jodie's heart and lungs were more or less healthy, but Mary's were insufficiently developed and could not provide her with the flow of blood and oxygen needed to survive. The girls' blood systems were joined by the aorta so that Jodie's heart pumped blood that flowed through both their bodies. In this manner, Jodie's heart and lungs kept Mary alive. According to their doctors' opinions, this situation could continue for a limited time only, between three and six months or perhaps a bit longer. As the girls grew, Jodie would eventually be unable to provide sufficient blood and oxygen to support both Mary and herself. Both would die. The doctors recommended surgical separation of the two girls. Mary would necessarily die “[w]ithin minutes,”Footnote 2 being cut off from her source of sustenance. Jodie would have a good chance of surviving.
The twins' parents denied their consent for the proposed surgery on religious grounds,Footnote 3 and the question of whether to order or authorize the surgery was presented to the courts. Several issues arose that required resolution. The issue that concerns us here relates to the criminal law. Would the doctors who performed the surgery be guilty of an offense for causing Mary's death? The doctors might be guilty of murder even if it were conceded that they did not intend to kill Mary, since under English law, it is sufficient to a charge of murder that the actor knows that death will be virtually certain to ensue.Footnote 4 In this sense, the doctors' purpose would be to bring about Mary's death, which would be the inevitable result of the surgery. Alternatively, they might be guilty of manslaughter. Was there some defense in English law that would render the surgery lawful in the circumstances? The English Court of Appeals approved the surgery by a unanimous decision. But the three judges were sorely divided regarding the grounds for their rulings.
Two possible defenses presented themselves for consideration. One was the defense of necessity—that it would be proper and warranted to perform the surgery that would cause Mary's death, because otherwise, both Mary and Jodie would surely die. Although the proposed surgery would cause Mary's death almost immediately, it would be the only way to avoid a worse result, the death of both. But English law has generally held per Lord Coleridge's opinion in Regina v. Dudley Footnote 5 in 1884 that necessity is not a defense for murder. In that case, four members of the crew of a sunken ship were cast adrift at sea. Their food and water were gone and no help from any outside source appeared to be forthcoming. Two members of the crew killed one of the men, who was already extremely weakened by the lack of sustenance. The three survivors fed on his flesh and blood until rescue appeared on the scene four days later. The two members were charged with murder; their defense was necessity: if they had they not killed him, they would not have survived the ordeal. Notwithstanding the jury's findings that the one they killed would likely have died before the others because of his severely weakened state, and that all the survivors probably would have died before rescue came, the Queen's Bench rejected the claimed defense. Dudley has been regarded for over one hundred years as having settled the law in England, by establishing that necessity is not a defense for murder.
Nevertheless, in In re A, Lord Brooke held that the proposed surgery was warranted under the doctrine of necessity. Dudley, he ruled, “is not conclusive of the matter.”Footnote 6 Rather, Lord Brooke distinguished the ruling in Dudley on the ground that the decision, to deny the defense of necessity in Dudley, was based on the concern that persons in distress might act hastily and injure others' interests prematurely in order to protect their own. Such a danger was not present in the case of the conjoined twins.Footnote 7
A second possible ground for the Court's decision was self-defense. According to this argument, Jodie had the potential to lead an ordinary life. Her life was in danger only because Mary was feeding on her, thereby weakening her ability to sustain herself. Mary, then, was an aggressor who endangered Jodie's life, and Jodie, or someone else on her behalf (the doctors), may take action against Mary in Jodie's defense, even to the point of causing Mary's death. To the best of my knowledge, no previous English or American case has presented the question of whether the law of self-defense applies in such a case. The literature abounds in discussions of whether self-defense applies in the case of an innocent aggressor. The examples given usually involve an insane aggressor or an attack by a child. In the twins' case, Mary was clearly, at most, an innocent aggressor. She obviously was not guilty of any offense respecting her attack on Jodie's person. Nor could any moral blame be ascribed to her. Indeed, it appears reasonable to aver that Mary was not an aggressor at all, innocent or otherwise, since she had not chosen to attack her sister. Her so-called attack on Jodie's person was an act of nature, like a falling tree—the girls were born not fully separated, with a shared circulatory system—and was not a volitional act.
Lord Ward dismissed these issues and allowed the surgery on the grounds of self-defense. “Mary is killing Jodie,” he wrote.Footnote 8 “Mary uses Jodie's heart and lungs to receive and use Jodie's oxygenated blood. This will cause Jodie's heart to fail and cause Jodie's death as surely as a slow drop of poison.”Footnote 9 And further: “The six-year-old boy indiscriminately shooting all and sundry in the school playground is not acting unlawfully for he is too young for his acts to be so classified”; nevertheless, “killing that boy in self-defence of others would be fully justified and the killing would not be unlawful.”Footnote 10 Lord Ward saw no difference between “that resort to legitimate self-defence and the doctors coming to Jodie's defence and removing the threat of fatal harm to her presented by Mary's draining her life-blood.”Footnote 11
The third judge, Lord Walker, based his ruling permitting the surgery in large measure on the doctrine of double effect.Footnote 12 The doctors do not intend to kill Mary. Their purpose is to save Jodie's life. Standing alone, this rationale is difficult to justify. As we have seen, English law holds that awareness that a given result—in this case, death—will occur is tantamount to intent to cause that result. But Lord Walker argued that double effect could prevent foresight from being considered intent.Footnote 13 Still, the doctors might be guilty of manslaughter for causing Mary's death, even if they do not intend to cause that result. Apparently, Lord Walker thought that some form of the defense of necessity was also applicable. This was a case of “undertaking surgery without which neither life will have the bodily integrity (or wholeness) which is its due.”Footnote 14
In issuing its opinion, the Court made brief reference to Jewish law concerning the issues presented.Footnote 15 A similar case arose in New Jersey in 1977, concerning an Orthodox Jewish family in which the father was a rabbinic student. There, too, the doctors proposed surgical separation of the twins, which would cause the death of one child but would potentially save the other child's life. The parents brought the matter before Rabbi Moshe Feinstein of New York (White Russia 1895–United States 1986), who was universally accepted as a leading rabbinic authority in such religious matters. Rabbi Feinstein authorized the surgery. The Court's reference to Rabbi Feinstein's ruling may have been motivated, in part, by the fact that the twins' parents in the English case opposed the surgery for religious reasons. Jodie and Mary's parents were of the Catholic faith and preferred to leave the matter in God's hands.Footnote 16 And the Archbishop of Westminster agreed with them in a presentation he made to the Court.Footnote 17
As noted, the Court's reference to Jewish law was very brief. Actually, a vast amount of literature, going back to at least the second century, deals with Jewish law's approach to the issues presented. And recent rabbinic and academic literature has discussed various grounds of support for Rabbi Feinstein's ruling. But Rabbi Feinstein never published a responsum setting forth his reasoning and the grounds on which he based his ruling.Footnote 18 Rabbi Feinstein apparently based his ruling on the Jewish law of self-defense or, perhaps, on an expansion of that law. Some scholars support this ground. Others do not. One article suggests a possible connection between Rabbi Feinstein's ruling in the case of the conjoined twins and a responsum he wrote in 1935, when he still lived in the Soviet Union.Footnote 19 Yet despite the different suggestions concerning the grounds for Rabbi Feinstein's ruling and the variety of explanations offered by different rabbis in its support, Jewish law authorities and scholars appear to agree unanimously that the surgery was permitted. At least, to my knowledge, no one has expressed a contrary opinion. In this respect, the situation is similar to that in In re A: unanimous agreement concerning the result combined with considerable—and strong—disagreement as to the grounds. It appears that at least one reason for the brevity of the Court's reference to Jewish law in the matter is the paucity of material available in English.Footnote 20
This paper will examine some of the sources in Jewish law that bear on the issue. As noted, the contemporary Jewish literature that focuses on the specific question of whether surgical separation of the conjoined twins is permitted is based on an examination of earlier sources that go back to at least the earliest days of the Common Era. The issues to be considered concern the scope of self-defense—or private defense—and justifying necessity in Jewish law.
Preliminary Observations Concerning Jewish Law
Several preliminary observations concerning the nature of Jewish law are in order. First, Jewish law is religious law. Its principal concern is the question of whether a proposed act accords with God's will and is permitted—or perhaps even required—or violates His will as expressed in the law and is forbidden. The question of whether performance of the act, if forbidden, will result in the imposition of penal sanctions is, at best, secondary. It is indeed possible, even likely, in some instances, that a given act will be forbidden but will not be punished, either because the particular offense, though an offense against the law, carries no punishment, or because of some special consideration relevant to the particular case, such as an excuse available to the offender or the absence of criminal intent. Accordingly, the literature in Jewish law dealing with issues of permissible self-defense or the question of whether one may sacrifice an individual in order to save a group has always been cast in terms of the primary permissibility of the proposed act rather than whether the act will be punished.Footnote 21
Second, Jewish law is basically casuistic in its nature. Most assuredly, theoretical generalizations concerning the rationale and basis for rulings in particular circumstances and matters of social policy are important, and they affect the understanding of later rabbis and their interpretation of rulings as they are recorded in the sources. But they are not necessarily determinative. In the final analysis, a rabbinic decision maker is concerned principally that his decision is consistent with decisions of earlier authorities that he regards as authoritative, not that his decision is supported by and consistent with some abstract theoretical generalization that may or may not appeal to his thinking about a subject. Such casuistry enables him to consider any unique features of a given case that attract his attention. Any general rationalization of his decision may be just that: an after-the-fact attempt to show that his decision is also consistent with broader concerns.
Third, as a system of religious law based on a belief in divine revelation and guidance, Jewish law does not erase from its records earlier discussions and rulings of rabbis. Once accepted, a position remains within the system as a source for possible future use. This is not to say that Jewish law always follows precedent. The very opposite is the case. Minority positions are also recorded, so that they may be used as the basis for a decision that deviates from the accepted majority view.Footnote 22 More to our point, earlier sources and decisions are not lightly rejected. But they are subject to the interpretation and understanding of later generations. The earlier sources and rulings may even be reinterpreted in terms that do not reflect the thinking of the earlier rabbis. And the later interpretations, together with the rulings based on them, may become the subject of additional interpretations and reinterpretations in generations that follow. Jewish law, then, builds layer upon layer of interpretations and rulings that are constantly subject to potential reworking and remodeling according to each generation's understanding of itself and of its faith.
In this respect, then, Jewish law has an affinity to the common law. But it also differs from the common law. Jewish law has no mediating concept of the “reasonable man.” Its treatment of the issues and of its sources is more structured. In this regard, then, it may be more akin to Continental law.Footnote 23 Ronald Dworkin's metaphor of the chain novel, a novel in progress, in which succeeding judges add a new chapter, seems to me appropriate.Footnote 24
We will begin our study, therefore, with an analysis of the Jewish law sources that bear on the topic. Perhaps not surprisingly, we will find approaches in Jewish law similar to each of the three grounds for decision presented in In re A: self-defense, necessity, and lack of criminal intent. We will begin our analysis with an examination of the early sources that bear on the question: What are the limits of self-defense in Jewish law?
Self-Defense
These may be saved at the cost of their lives: he that pursues after his fellow to kill him, or after a male, or after a girl that is betrothed; but he that pursues after a beast, or that profanes the Sabbath, or that commits idolatry—they may not be saved at the cost of their lives.Footnote 25
Our source is the Mishna,Footnote 26 a collection of mostly legal statements that were gathered, and perhaps also edited, by Rabbi Judah the Prince around the end of the second century. The individual statements originated in the preceding three centuries and sometimes even earlier. This particular Mishna concerns the law of the pursuer, what we today call self-defense or private defense. The basic law is clear. One who pursues another to kill him is himself to be killed, if necessary, in order to prevent the intended murder.
The Mishna is brief. It states the basic rule of self-defense without any of its qualifications or limitations. Some of the latter matters are treated in the Gemara, which is an edited collection of discussions by the rabbis and their students of the issues raised by the Mishna's ruling. The Mishna and the Gemara together form the Talmud.Footnote 27
The principle underlying the Mishna's rulings appears clear. In the first group of cases noted in the Mishna, the pursuer is in the process of committing a capital offense in circumstances that will inflict severe harm on a protected interest of another person, for example, death. Therefore, he may be killed if necessary to prevent him from committing the offense. In the second group of cases, no interest of any individual person is in danger. These acts—bestiality, profanation of the Sabbath, and idolatry—are also capital offenses, but they have no harmful consequences to any individual person. Those committing these offenses may not be killed to prevent the offense. Rather, they are subjected to the Court's judgment after the fact.
Who is a pursuer? What about the so-called innocent pursuer?Footnote 28 The Gemara considers whether a minor child, who is not criminally liable, is a pursuer and may be killed to prevent the offense. “Rabbi Huna said: A minor in pursuit may be slain to save the pursued.”Footnote 29 How broad is this ruling? Does it apply to all minors, regardless of their age or other circumstances? The Gemara does not consider this question directly. It continues the discussion by referring to a ruling in another Mishna, this one concerning a woman in labor whose life is endangered by the emerging fetus.
If a woman was in hard travail, the child must be cut up while it is in the womb and brought out member by member, since the life of the mother has priority over the life of the child; but if the greater part of it was already born, it may not be touched, since the claim of one life cannot override the claim of another life.Footnote 30
The birth mother's life is in danger because of complications during delivery. The Mishna rules that so long as the fetus has not yet emerged, her life has priority and the fetus may be destroyed to save her life. However, once the major part of the fetus's body has emerged, one may not harm it, even to save the mother's life. At this stage, the fetus is a full human life equal to the mother, and one life cannot override the claim of another life. One may not destroy one life in order to save another life.
This appears to be the simplest and most straightforward understanding of this Mishna. It is based on the idea that life, full life, begins at birth, defined in this case as the moment when the greater part of the fetus has emerged. Up to this point, during the earlier stages of pregnancy, the fetus is not yet a life in being; it is a potential life but not yet an actual full life. Therefore, the mother's life has priority and the fetus may be destroyed in order to save her life. But once the fetus has emerged, it is as much a life as the mother. At this stage, neither life has priority over the other. One must let nature take its course, even if that means the mother will die, “since the claim of one life cannot override the claim of another life.”Footnote 31 One may not reject or destroy one life in order to save the other. Thus Rashi (Troyes 1040–1105)—the author of the leading commentary to the Talmud—explains this Mishna.Footnote 32
The Gemara tells us that, based on this latter Mishna, Rabbi Hisda challenged Rabbi Huna's ruling that one may kill a minor pursuer:
Rabbi Hisda asked Rabbi Huna: We learned: “Once his head has come forth,[Footnote 33] he may not be taken to save the mother.” But why so? Is he not a pursuer?Footnote 34
The point of Rabbi Hisda's question is clear. Why doesn't Rabbi Huna's ruling that “a minor in pursuit may be slain” apply to the case of the fetus whose head has emerged? True, at this stage of the birth, the child is a full human being and no longer a fetus. But the child's birth is endangering the mother's life. If a pursuing minor may be killed under the law of private defense, why can the pursuing child, whose head—or, to a large extent, whose body—has emerged, not be killed as well? He, like the pursuing minor, is a pursuer.
Rabbi Huna replied by distinguishing between the cases. “There it is different,” he said, “for she is pursued by heaven.”Footnote 35 The case of the partially emerged child differs from that of the pursuing minor. The emerging child is not pursuing the mother. Heaven is pursuing her.
This distinction can be understood in several different ways, and so it has been in the literature. We will follow the explanation offered by Rabbi Yisrael Lipschutz (Germany 1782–1860), which seems to me the simplest and most straightforward. Rabbi Lipschutz wrote:
[The case of the fetus is not a pursuer and differs from that of Sheva ben BichriFootnote 36 because] although Sheva ben Bichri did not intend to pursue the townspeople, he nevertheless voluntarily caused the danger that was virtually certain to occur. Therefore, one can properly regard him as a pursuer. Moreover, he acted contrary to the law . . . . But in this case, the fetus did not cause the virtually certain danger intentionally. And it did not act contrary to the law. For this is nature's way. Therefore it is not a pursuer.Footnote 37
The emerging fetus differs from Rabbi Huna's minor pursuer in two important respects. The minor pursuer, though not legally responsible or punishable for his acts, nevertheless pursues his intended victim knowingly and willfully. He is engaged in an intentional act, both in the sense that his physical act is voluntarily and intentionally undertaken and in the sense that he seeks to bring about its harmful result, the death of the pursued. He has chosen to pursue and kill his victim. But the emerging fetus has not chosen to do anything. The fetus's emergence from the mother's womb is not a voluntary or chosen act; the fetus does not intend to cause the mother's death or even foresee such a result. The fetus's birth is not an intentional human act at all. It is an act—better, an event—of nature. In short, the fetus case concerns a natural event that is not the result of any human choice or action; the minor-pursuer case involves a human act chosen and performed by the minor.
The significance of these statements for the issues relating to the conjoined twins appears obvious. Based on this understanding of the Talmudic discussion and its conclusions, neither twin can be considered a pursuer of the other. The twins, like the emerging child, have no volition and do not intend to commit any act that may cause harm. It is heaven that pursues. The conjoined birth and its accompanying dangers are an event of nature, not a human act. Based on this understanding, the law of the pursuer, or self-defense, is not a ground for allowing the proposed surgery that would save the life of the one but result in the death of the other.Footnote 38
As noted, Rabbi Feinstein did not publish any explanation of his decision to allow the surgery in the New Jersey case. Therefore, we do not know how he understood these sources or how he reconciled them with the position that one of the twins is in pursuit of the other. Perhaps he grounded his decision in the discussion of these issues recorded in the Jerusalem Talmud, which differs somewhat from that in the Babylonian Talmud.Footnote 39 We will turn our attention to the question of whether the doctrine of necessity can come to the rescue.
Necessity: Choosing the Lesser Evil
As we have seen in the Mishna concerning the birthing mother, ordinarily, one may not kill an innocent person to save the life of another. But that Mishna deals with a one-on-one situation. Therefore, its ruling may not apply to a case in which killing an innocent person would save many lives. Before confronting this issue directly, we must consider yet another source.
The Talmudic principle recognizing the equality of lives, which forbids taking one life to save another except in situations of self-defense, is reinforced by an additional source. A general principle of Jewish law holds that one may violate the law in order to save life. During the second century, rabbis considered the limits of this principle. When must one sacrifice his life rather than violate the law? When is martyrdom a religious obligation? Conversely, when is one permitted to violate the law, even upon the demand of a tyrant, rather than die? After discussion and debate, the accepted decision was that, ordinarily, one may yield to a demand to violate the law upon the threat of death. Generally, life takes precedence. However, three laws exist that may not be violated, even to avoid death. They are: idolatry, serious sexual offenses such as adultery and incest, and murder:
Rabbi Johanan said in the name of Rabbi Simeon ben Yehozadak: By a majority vote, it was resolved in the upper chambers of the house of Nithza in Lydda that in every [other] law of the Torah, if a man is commanded: “Transgress and suffer not death,” he may transgress and not suffer death, except idolatry, incest [including bestiality and adultery] and murder.Footnote 40
The later Talmudic rabbis found a basis in the biblical texts for the ruling that martyrdom is called for in the first two cases, idolatry and serious sexual offenses. But, they asked, what is the source for the third ruling, that one must suffer death in such a case rather than commit murder? They answered that this ruling is based on human reasoning:
And how do we know this of murder itself?—It is common sense. Even as in the case of one who came before Rava and said to him, “The governor of my town has ordered me, ‘Go and kill so and so; if not, I'll kill you.’” He [Rava] answered him, “Let him rather slay you than that you should commit murder. Who knows that your blood is redder? Perhaps his blood is redder.”Footnote 41
Once again, our source teaches that lives are equal. One may not kill another person, even to save one's own life. As we have seen, the situation of self-defense is different. One is permitted, even obliged, to kill a pursuer—one who is pursuing another person to kill him—when there is no other means available to save the life of the pursued. But this was not the case that was presented before Rava. Here, the demand was to kill an innocent person, one who was not pursuing anyone. Therefore, Rava ruled, one may not kill that person, even at the cost of one's own life. Both lives are equal. “Who knows that your blood is redder [than his]? Perhaps his blood is redder.”Footnote 42
And once again, Rashi's explanation of this passage comports with what appears to be its simple and straightforward meaning.Footnote 43 God has generally permitted a Jew to violate the law he promulgated for the Jewish people, because he loves the lives of his people more than the law. But in this case of life versus life, the law will be violated in either event; a person will be killed, a life will be lost anyway. In this case, there is no reason to grant dispensation to violate the law. Life will not be saved thereby.
At this point, the question of necessity arises. Does Jewish law permit killing an innocent person in order to save many lives? If yes, under what circumstances and subject to what limitations? The sources we have examined so far seem to suggest that the law permits killing an innocent person, at least in some circumstances, when doing so is necessary in order to save many lives. Let us briefly recapitulate these sources.
The Mishna concerning the birthing mother dealt with a one-on-one situation. The mother's life was in danger. She could be saved if the child were killed. But there is no legal reason to prefer the child's life to that of the mother. Once the child's head or the majority of its body has emerged, the child's and the mother's lives are equal. So, one may not interfere. But this ruling does not apply to the case of killing the one to save the many. Suppose both the child and the mother will die if nothing is done. But one of them will survive if we kill the other. May we kill one of them on the ground that this will prevent two deaths?Footnote 44
Rava's ruling forbidding killing under duress deals with a similar situation, in which one person's life comes into conflict with another person's life. As Rashi explains, in those circumstances, killing the one will not save life. But this ruling, and its underlying reasoning, does not extend to a situation in which the death of an innocent person—someone who is not a pursuer—would save many lives. Recall, too, that Rava's ruling forbidding the killing was not based on any textual authority. It was based on common sense, on ordinary human reasoning, to the effect that in the case presented, the killing would not save life. In the absence of textual authority forbidding killing the one to save the many, the very same common reasoning would appear to support the additional conclusion that the killing is justified when it saves many lives.
But we must examine other sources that seem to reject these conclusions. The Mishna says:
[I]f gentiles said to many women, “Give us one from among you that we may defile her, and if not we will defile you all.” Let them defile them all, but let them not turn over to them a single soul from Israel.Footnote 45
A horrible situation! Hoodlums demand the surrender of a woman to be defiled or they will defile all the women present. What should the women do? Do not surrender any one of your company, says the Mishna. Clearly, this Mishna is not motivated by a harsh sense of female chastity. The issue presented is the one versus the many. May the group sacrifice one of its members to suffer harm in order to save the others from similar harm? Should they surrender one woman to save the others? The answer is: No! Do not surrender one, even if all will be defiled. The Tosefta records a parallel ruling:
Caravans are accosted by non-Jews who say to them, “Give us one from among you that we may kill him, and if not we will kill you all.” Let them kill them all, but let them not turn over to them a single soul from Israel.Footnote 46
On their face, these rulings appear to suggest that one should not sacrifice the interests of one person even to save the many. Some maintain that they teach that numbers never count. Life is infinite in value. Therefore, one may never kill or cause the death of an innocent person, even when doing so is necessary to save many lives. Murder is too heinous an offense to justify killing, even in cases of necessity. Perhaps this is so. But we must examine these sources more closely. For instance, the Tosefta's case does indeed present the challenge of the conflict between one life and many lives. But life is not at stake in the Mishna's case. Nevertheless, note the perfect parallelism of the rulings in the two cases, which suggests an underlying principle common to both that transcends the different harms the groups will suffer.
The portions of the Mishna and the Tosefta quoted above concern situations in which the heathens demand the surrender of an unspecified person, either a woman to be defiled or a person to be killed. They demand that the group surrender someone, anyone. But suppose they identify the person whose surrender they seek. Does that change the picture in any manner? The Mishna does not consider the question of whether designation of a woman to be defiled has any significance. But the Tosefta, which presented the case of a demand to surrender one to be killed, elaborates:
However, if the demand is for a specified individual like Sheva ben Bichri, they should surrender him rather than all be killed.Footnote 47
The story of Sheva ben Bichri is recorded in the second book of Samuel.Footnote 48 A member of the tribe of Benjamin, he opposed David's claim to the throne after the death of King Saul and his son Jonathan, who were also Benjaminites. After the failure of Absalom's rebellion against his father David, Sheva ben Bichri staged his own rebellion. This rebellion also failed, and he took refuge in a walled Benjaminite city. David's army laid siege to the city and demanded his surrender, else the city be razed and its inhabitants killed. A “wise woman” counseled surrender. The residents killed Sheva ben Bichri and tossed his decapitated head over the wall. The army lifted the siege.
What is the critical feature of this story, cited in the Tosefta as an example of circumstances in which one is permitted to surrender the designated person to be killed and thereby save the remaining members of the group? The rabbis disagree.
Rabbi Shimon ben Lakish said, “[He may be surrendered] only if he is guilty of a capital offense, as was the case of Sheva ben Bichri.” Rabbi Yochanan said, “[He may be surrendered] even if he is not guilty of a capital offense as was the case of Sheva ben Bichri.”Footnote 49
Later authorities disagree as well. Maimonides (Moses ben Maimon) (Cordoba 1135–Cairo 1205) accepts Rabbi Shimon's position. Two conditions must be satisfied before one may surrender a member of the group to be killed. The individual to be surrendered must have been designated by the demanding group and be guilty of a capital offense.Footnote 50 Others, including Rabbi Joseph Karo (Spain 1488–Safed 1575), author of the Shulchan Aruch that is the principle code followed by religiously observant Jews to this day, adopt Rabbi Yochanan's position.Footnote 51 It is sufficient that the heathens designate the one to be turned over. In this situation, he may be surrendered even if he has not committed a capital offense.
Maimonides summarizes the rulings in both cases:
If idolaters will demand of a group of women, saying: “Yield us one of you and we will defile her, if not we will defile you all,” let them all be defiled, rather than surrender to them one soul in Israel. Likewise, if idolaters will say to a group of men: “Yield to us one of you and we will kill him, if not we will kill you all,” let them all be killed rather than surrender to them one soul in Israel. If, however, they singled out the one, saying: “Give us that man, if not we will kill you all,” if he be guilty of a capital crime, as for example Sheva ben Bichri, they may surrender him to them, but . . . if he be not guilty of a capital crime, they all must submit rather than surrender one soul of Israel.Footnote 52
What is the underlying rationale for these rulings? Why is one forbidden to surrender one person to be killed in order to save the rest of the group? And what is the significance of designation? If it is forbidden to surrender the one to save the group, why does designation of the person to be surrendered alter the picture and, according to Rabbi Yochanan and some of the later authorities, allow his surrender? Why is his guilt for some capital offense, as determined by other authorities, significant? These questions were raised and discussed by Maimonides's commentators.
Rabbi Moshe HaCohen of Luniel was a contemporary of Maimonides and a member of a school of Provence scholars who wrote critiques of Maimonides's Code. He queries: Why is it forbidden to surrender one to save the many, even when the one is not designated by the heathens? After all, he asks, in the case presented to Rava, which we examined above, the only reason Rava gave to support his ruling that the questioner may not kill the intended victim was, “Who knows that your blood is redder [than his]. Perhaps his blood is redder.” But this reason does not apply to a case of the one against the many, especially when, as in the Tosefta's case, the one will be killed anyway. Common sense, and the law, he thought, justify surrendering the one to save the many.Footnote 53
Rabbi Karo offered an explanation of the stated rule in his commentary on Maimonides's Code.Footnote 54 In principle, one may surrender the one to save the many. As per Rabbi HaCohen's critique, Rava's ruling and his supporting reasoning are limited to one-on-one situations. But the case of the heathens who demand the surrender of an undesignated individual raises a distinct problem: How to select the one who will be surrendered? Each person who is chosen can say, Why do you choose to surrender me rather than someone else? Who says that my blood is less red than that of any other member of the group? Since the group lacks any basis for selection, it cannot surrender anyone, even if all will be killed. But when the heathens designate the one to be surrendered, the problem of selection disappears. The heathens have specified whom they want. Only the specified person's surrender will satisfy them. The surrender of anyone else will not save the group.
Rabbi Karo's suggested explanation is problematic. The textual force of the ruling—“let them all be killed rather than surrender to them one soul in Israel”—suggests that a more fundamental principle is at stake. It seems strange that the problem of selection should rule the day and the entire group should be killed, if in principle, it is permitted to sacrifice the one to save the many. One can imagine several possible modes of selection. For example, elsewhere the Mishna provides an order of priorities for redeeming captives when one is unable to redeem them all.Footnote 55 Why not adopt the reverse of these guidelines?Footnote 56 It has also been suggested that the group might draw lots to select the one who will be surrendered.Footnote 57
A more fundamental difficulty with Rabbi Karo's explanation stems from the Mishna's case of the women. If it is permitted to sacrifice an individual, even to death, in order to save the group, and the only problem is how to select that individual—a problem that is resolved when the heathens designate the person they want—then a similar rule should apply in the case of the women. It should be permissible to surrender a woman whom the heathens have designated. Her surrender would save the remaining women from defilement, and there would be no problem of selection, since she has been designated. But the Mishna differs from the Tosefta. It does not suggest that one may surrender a woman whom the heathens have designated.
It is possible, of course, that there is no difference in this regard between the Mishna's case of the woman to be defiled and the Tosefta's case of a person to be killed. The textual difference between the two may be literary rather than substantive. Perhaps the Mishna chose to present only the most basic case, one that does not deal with varying circumstances, while the Tosefta elaborated on it. But this is not a likely explanation. The Tosefta records a dispute among the rabbis as to whether designation alone alters the rule. One would expect the sources to inform us had there been a similar disagreement in the case of the women.
In any event, consistent with his suggestion that the rationale for the rule forbidding the surrender of one to be killed is the absence of a means by which to select the one to be surrendered, Rabbi Karo interprets the Mishna as permitting the surrender of a designated woman to be defiled.Footnote 58 Maimonides clearly disagrees. He forbids surrendering the woman in any event.Footnote 59
Rabbi Karo confronts yet another difficulty in his attempt to explain Maimonides's rulings governing these situations. His explanation, that the underlying problem is the lack of a means to select the person to be surrendered, and that the heathens' designation of the person solves this problem, may explain Rabbi Yochanan's position, that designation alone is sufficient to warrant surrendering the selected one to be killed. But it does not explain Rabbi Shimon's ruling that designation is not enough, and that one may not surrender a designated person unless that person has also committed a capital offense. And, as we have seen, this is the position Maimonides adopts in his Code.
Rabbi Karo concedes the point. He has no explanation for Maimonides's stricter view. Rather, he only suggests that while Rava's explanation of the basis for his ruling—“Who knows that your blood is redder [than his]? Perhaps his blood is redder”—sufficed for the case at hand since it concerned one person on one person, it is possible that there is a second, unrecorded rabbinic tradition that forbids killing an innocent person, even to save the many.
I think it is possible to suggest a different rationale, one that explains Maimonides's rulings in these cases—involving the demand to surrender a woman to be defiled and the demand to surrender a person to be killed—in a way that is consistent with the premise that one may kill one person to save the many in other circumstances. These two cases are based on the religious obligation to sanctify God's name, or in Hebrew, the commandment of Kiddush Hashem. The unique feature of these two cases is the arbitrary and outrageous nature of the demands. In today's terms, the heathens are terrorists. To yield to their demands would be a sacrilege. The solidarity of the religious community is the order of the day.
The sanctification of God's name is the most fundamental commandment to the Jewish people, who took upon themselves the duty to be “a kingdom of priests and a holy nation.”Footnote 60 It is their very raison d'être. The prophet Isaiah says: “This nation I have created for Myself, that they may declare my praise.”Footnote 61 And God declared at Mount Sinai, “You shall not profane My name, that I may be sanctified in the midst of the people of Israel.”Footnote 62 To this end, the Jewish people accepted the yoke of numerous commandments not binding on other nations, and which included the commandment of Kiddush Hashem. This commandment, to sanctify God's name, has both positive and negative aspects. By observing the rituals of the Jewish religion, which deal with almost all aspects of daily life, the Jew expresses belief in God's omnipresence. By adhering to the laws, even when under extreme pressure to violate them, the Jew expresses overwhelming loyalty and obedience to God's will.
Maimonides elaborates the general principles underlying the mitzvah of Kiddush Hashem in his Code, in the very same chapter in which he sets forth the rules concerning the surrendering of one member of a group to save the other members.
The entire house of Israel is commanded to sanctify this Great Name, for it is said: “And I shall be sanctified among the children of Israel” [Leviticus 22:32]. They are also commanded not to blaspheme Him, for it is said: “And you shall not profane My holy Name” [Ibid.].Footnote 63
The primary way in which a Jew can fulfill these obligations is to follow the law of his own free will, for its own sake—or, as is sometimes said, for the sake of heaven—rather than for any personal benefit derived therefrom:
Whosoever willfully, without duress, will transgress one of the commandments of the Torah, because he despises it and does so spitefully, behold, he is blaspheming the Name . . . . Conversely, if one abstains from sin, or fulfills a commandment without ulterior motive, not because of terror or fear, nor in pursuit of honor, but merely for the sake of the Creator, blessed is He, even as Joseph the Pious did resist the temptation of his master's wife, behold he doth sanctify the Name of God.Footnote 64
The theme of Kiddush Hashem—sanctification of God's name—is also central to Maimonides's understanding of the law of duress. Indeed, Maimonides's explication of the law concerning duress opens with the command to sanctify God's name. And his summary of the law concerning duress appears in the very same chapter as his Code elaborating the laws concerning Kiddush Hashem. The command to sanctify God's name permeates the law of duress and explains why one must resist certain demands to violate the law. The Jew sanctifies God's name by adhering to His law, even under threat of death. He sanctifies God's name by resisting to the utmost. The tyrant holds himself and his will to be above God's law.Footnote 65 The Jew holds God's law above the tyrant's demands. He gives the ultimate value to God. He will resist the tyrant's demands, even at the price of his life.
Maimonides's treatment of the law of duress reads:
1. The entire house of Israel is commanded to sanctify this Great Name, for it is said: “And I shall be sanctified among the children of Israel” [Leviticus 22:32]. They are also commanded not to blaspheme Him, for it is said: “And you shall not profane My holy Name.” How are these commandments to be observed? If an idolater will force an Israelite to transgress one of the commandments of the Torah and threaten him with death for disobedience, it is mandatory that he transgress the commandment and not be put to death, for it is said concerning the commandments: “That which a man may do and live by it” [Leviticus 18:5], live by it, but not die for it. . . .
2. Whereat are these words directed? Concerning all other commandments, save idolatry, adultery and bloodshed. For respecting these three commandments, if one will say to him: “Transgress one of these three, or die,” he shall die and not transgress.
. . .
4. [C]oncerning a person of whom it is said that he shall die and not transgress, and in fact he did die and not transgress, he sanctified the Name of God . . . , even like unto Daniel, Hananiah, Mishael and Azariah and Rabbi Akiba and his associates, who were slain by decree of a tyrannical government and to whose degree of martyrdom there is no parallel. . . . And concerning a person of whom it is said that he shall die and not transgress, but he did transgress and did not die, he blasphemed the name of God, and . . . violated the affirmative commandment of the sanctification of God, and transgressed the prohibitive commandment not to profane God's Name.
. . . Nevertheless, because he committed the transgression in duress, he is not lashed, needless to say that no punishment of death is inflicted upon him by a court, even if he committed murder in duress; for no punishment of either lashes or death is inflicted unless one commits the crime willfully. . . .Footnote 66
It seems to me that this understanding of the relationship between duress and Kiddush Hashem explains Maimonides's rulings in the cases we are considering here. The heathens' demand that the group surrender one woman to be defiled else all the women in the group be defiled, and the parallel demand to surrender one person to be killed else the entire group be killed, are both cases of duress. The demands in both cases are arbitrary, contrary to the laws of God and man. Such outrageous demands must be resisted to the utmost. Group solidarity is the command of the hour. This, too, is a matter of sanctifying God's name.Footnote 67
In this light, we can better understand Maimonides's detailed rulings as well. Consider, first, the case of the demand to surrender a person to be killed. All agree that the demand to surrender an undesignated person must be resisted. The demand to surrender an undesignated person, any person, is as arbitrary and unjust a demand as one can imagine and must be resisted. Confronted with such a demand, a Jewish community must resist, even to the point of sacrificing the lives of the entire group and sanctifying God's name, if necessary.
Designation of the person sought may change the picture. Perhaps the demanders have their reasons for demanding the person's surrender. Perhaps that person has done something to them that justifies turning over that person to them.Footnote 68 Accordingly, Rabbi Yochanan rules that the group may surrender the designated person.Footnote 69 Rabbi Shimon disagrees. In his view, one may not surrender the designee on the basis of a surmise that the demand may be justified. Justification must be apparent. The group may only surrender one who has committed a capital crime. Maimonides adopts Rabbi Shimon's stricter view. Justification for the demand must be apparent.Footnote 70
We can now better understand the law concerning a demand to surrender a woman to be defiled. Of course, such a demand is the most outrageous of all. It is an abomination that cannot possibly be justified in any circumstance. The group must resist, even at the price that all will be defiled, if necessary. Accordingly, neither Rabbi Yochanan nor Rabbi Shimon suggests that the law may permit surrendering a woman designated by the heathens. Designation of a particular woman to be defiled in no way changes the horror of the demand. Once again, group solidarity is called for, even at the terrible price threatened. The entire group must resist and sanctify God's name.
There is another consideration present in these cases. One common practice in the Middle Ages and earlier was the piratical taking of captives for ransom. Jewish solidarity demanded that communities exert maximum effort to raise the funds necessary to redeem the captives. This was an important mitzvah. Nevertheless, the Mishna rules that “one should not pay excessive ransom to redeem captives.”Footnote 71 One reason for this ruling is to discourage such piracy and excessive ransom demands.Footnote 72 By extension, similar considerations appear to be relevant in the surrender cases. There is no assurance that the heathens' demands will end with the surrender of one person.Footnote 73
Maimonides finds support for these rulings in the primary sources, the Mishna, the Tosefta, and the Jeusalem Talmud, which set forth the rules concerning the demands considered here. These sources describe the rabbinic dispute as to whether designation of the person to be surrendered for death may alter the equation. But they contain no disagreement, or even consideration of the question, as to whether designation may permit surrendering a woman to be defiled. As has been seen, designation of the woman sought cannot possibly justify, to even the slightest degree, the demand for her surrender. Indeed, designation may even render the demand all the more outrageous.
Recall, too, our discussion of Rabbi Karo's explanation of the law that forbids the surrender of an undesignated person given the absence of any basis to make the selection. We saw that his explanation encountered several difficulties. The problem of selection seemed weak ground on which to base a requirement that all should die. And it did not explain why the Mishna did not consider the significance of designation in the case of the demand to surrender a woman to be defiled. It also failed to explain Rabbi Shimon's position, accepted by Maimonides, that one may not surrender a designated person to be killed unless he committed a capital offense. The explanation offered here resolves these problems.
To what extent are the considerations suggested here relevant to situations of necessity? In cases of duress, including the unlawful demand to surrender a person to be harmed, the source of the harm lies in the unlawful demand, which can be resisted. In cases of necessity, however, the source of the harm sought to be prevented lies in the attendant circumstances. Cases of necessity do not present an arbitrary and unlawful demand that can and should be resisted. No tyrant seeks to enforce his will as superior to that of God.
Jerome Hall describes the differences between duress by threats and duress by necessity (duress of circumstances) in secular terms.
There are valid grounds in support of the above noted differences between the doctrines of necessity and coercion. In the former the pressure which influences the action is physical nature while in coercion it is immoral and illegal conduct of a human being that creates the problem. Certain major consequences result. In coercion the situation may be completely transformed in a split second by the malefactor's change of mind, and he is morally obliged to do that. There can hardly ever be any such very high probability that he will not change his mind as that no relief will come to alter imminent destructive physical forces. . . . Even if the execution of the coercer's threat were just as probable as the continuing impact of destructive, physical phenomena, there would frequently be a duty to resist the evil-doer. . . . In necessity, man bows to the inevitable; but in coercion there is no inevitability.Footnote 74
Maimonides draws a similar distinction between the two kinds of cases. He sets forth the laws concerning necessity immediately following his treatment of the laws of duress, which as we have seen, include the rulings concerning the surrender of a person to be harmed under threat.
6. As they said on the subject of duress, so they said of sickness[, duress of circumstances or necessity]. How so? For example: One who takes sick and his life is despaired of, and doctors prescribe a remedy for him consisting of a certain thing which is forbidden, the doctors' orders are followed. Healing may be effected by everything that the Torah forbids, where there is danger of death, save only idolatry, adultery and murder, which even in case of danger, must not be employed as means of healing. . . .
7. Whence do we know that even when life is in danger, none of these [latter three] prohibitive commandments may be violated? From what it is said: “And you shall love the Lord your God with all your heart, with all your soul and with all your might” [Deuteronomy 6:5], even though He take your life. And the taking of one life in Israel to give healing to another life . . . is a thing which reason dictates not to do, for one life may not be sacrificed to save another life.Footnote 75
In this passage, Maimonides does not mention the mitzvah of Kiddush Hashem even once. The reason is apparent, as we have seen. Duress concerns a “tyrannical” demand to violate God's law. The tyrant holds himself to be above God's law. In the face of the conflict between God's will and that of the tyrant, the Jew will obey God's law, even to his death, and sanctify His name. By contrast, there is no tyrant and no tyrannical demand in cases of necessity. Here, the source of the danger is the circumstances of the situation. Endangering circumstances can raise a conflict between man's obedience to God's law, which may endanger his life, and his desire to live. But they do not present a conflict between God's commands and those of a tyrant who claims superior authority. If the person whose life is endangered chooses to violate the law in order to save his life, he will indeed violate God's command, but he will not be obeying someone else's command. Obedience to the law may be at issue in these cases, but Kiddush Hashem is not.
The implications of the rationale offered here have important consequences for our understanding of the scope of Maimonides's position concerning the law of necessity. As we have seen, the tyrannical demands presented in the surrender cases are situations of duress by threats rather than by necessity, which is duress of circumstances. Therefore, Maimonides's rulings not to surrender anyone in these cases need not reflect a general position that numbers are insignificant. It may reflect, rather, the special demands of Kiddush Hashem, a consideration present when the choice results from arbitrary terrorist demands, but absent when circumstances cause life to come into conflict with other lives. The ruling, “Let them all die but do not surrender a single Jew to the heathens,” is best understood as the correct response to yet another case of duress, which must be resisted, and may not apply to the classic lifeboat situations that were presented by necessity in cases such as Dudley and Holmes, in which the danger sought to be avoided lay in the circumstances of the situation rather than in tyrannical demands.Footnote 76
The consequences of this analysis for the case of the conjoined twins are apparent. That case does not present a situation that calls for resistance to arbitrary terrorist demands. In re A is not a case of duress. It is a straightforward case of necessity, in which the source of the danger lies in the attendant circumstances. Once the duty to resist is removed from consideration, the sole issue is whether it is better to cause the death of one child—whose death will remove the danger to her sister, because she is the source of that danger and will die in any event—in order to save the sister who has the capacity to live on her own, or to allow both to die rather than cause the death of one. The sources that deal with surrendering a person to the terrorists' demands do not bear on this issue.Footnote 77
Cases That Were Considered in the Rabbinic Literature
To the best of my knowledge, the questions discussed here have been considered in the literature in connection with the four situations presented below to illustrate the range of their potential application. For reasons of space, the discussion is necessarily limited. Each case raises issues that can—and should—be examined at much greater length elsewhere.
The Birthing Mother
Earlier in this paper, we considered the Mishna that deals with the birthing mother, whose life is endangered by the emerging fetus. As pointed out above, the Mishna and the ensuing Talmudic discussion assume that one of the two will die. If nothing is done, the mother will die. Or, the fetus can be killed to save the mother's life. The Mishna rules that “the claim of one life cannot override the claim of another life.”Footnote 78 Suppose, however, that if nothing is done, both will die. In this case, may the emerging fetus be killed in order to reduce the number of ensuing deaths? Several sources consider this question. Two conflicting decisions follow.
Rabbi Yisrael Lipchutz (Germany 1782–1860) wrote one of the most important commentaries on the Mishna, Tiferet Yisrael. We have already considered his explanation that the fetus is not a pursuer because it is not committing a voluntary act.Footnote 79 The fetus does not choose to emerge. Rather, its emergence is an act of nature. Also, the fetus does not intend to kill the mother or even endanger her. Rabbi Lipschutz continues:
[I]t appears to me that this is the law only when it is possible that when the mother will die the child will survive or when it is possible that they may both survive. But if, if we do not kill the child they will both die, then it appears to me that it is permitted to kill the child so as, at the least, to save the mother, as in the case of Sheva ben Bichri. And while they are not quite the same, as we said above, in any event, since the child only has the prospect of interim life, since otherwise they will both die, we do not hold his life in that high regard, since he is a newborn not yet alive for 30 days and does not yet have a presumptive status of life so long as he is in his mother's womb, and in this situation certainly her blood is redder and one may at least save one life in Israel.Footnote 80
His position with regard to our question is clear. If both will die, one may kill the fetus to save the mother. Better that one die than that they both die.
Still, Rabbi Lipschutz's position may have limited application. Although the fetus is no longer a potential life but a life in being, since its head or the majority of its body has emerged, the Rabbi allows for the fetus's killing, at least in part, on the ground that it does not have “a presumption of life.”Footnote 81 Indeed, it might even be said that the presumption is that it will not survive. Nevertheless, it seems to me that his position should apply equally to the case of the conjoined twins. Arguably, one might distinguish their case from that of the fetus. In the twins' case, the birthing process is over and they can survive some months longer, whereas in the fetus's case, the birthing process is still underway. Still, the twins cannot be said to enjoy any presumption of life. Their case, rather, is premised on the doctors' opinions that both will die unless they are severed.
Rabbi Chaim Sofer (Hungary 1821–1866) took the opposite position. In the collection of his responsa, he reports an actual case that presented this very question. In that case, the fetus had crowned but the woman was unable to complete the delivery of her child. The doctors said that if the fetus were not killed within an hour or so, both the fetus and its mother would die. In response to the father's query, Rabbi Sofer ruled that it is forbidden to kill the child. Killing an innocent person is so serious an offense that it is always forbidden, even to save other lives. Better two deaths than one killing, he reasoned.Footnote 82
One might distinguish Rabbi Sofer's case from the case of the conjoined twins. Arguably, the doctors' conclusion that both the mother and the child would die if nothing were done cannot be as firm and conclusive as the prognosis that both twins will die if they are not severed. Perhaps Rabbi Sofer thought that the doctors' prognosis was too speculative a ground to warrant killing the child. But it seems likely that he took a more absolutist position. The asserted ground for his ruling leaves little room to distinguish the cases on this ground. It should also be pointed out that this was a ruling in an actual case, whereas Rabbi Lipschutz's contrary position was set forth in a theoretical context.
The Baby in the Bunker
Jews frequently confronted such moral and legal questions of life and death during the Holocaust.Footnote 83 One such case is reported by Rabbi Shimon Efrati (Ukraine 1908–Israel 1988) in his book Me'Emek HaBacha.Footnote 84 A group of Jews were hiding in an underground dugout bunker while Nazi troops were gathering Jews for transportation to the death camps. The Nazis knew that Jews were hiding in various makeshift hideouts, including such underground bunkers, and they conducted searches to discover these hiding places. A newborn infant in the bunker began to cry. One of the group covered its face with a pillow to stifle its cries. The child was suffocated and died. The hiding place was not discovered. After the war, some of those involved asked Rabbi Efrati if they had sinned. Punishment was not the issue, of course. But if they had sinned, it would be appropriate that they perform acts of contrition and penance, such as fasting, prayer, and charitable works.
Rabbi Efrati ruled that they had not sinned. He agreed that the infant could not be considered a “pursuer” in the ordinary sense, since his cries were not voluntary and he did not intend to endanger the people in the bunker. Rabbi Efrati considered the infant “an innocent pursuer” (rodef b'oness). The infant's cries were the source of the danger to the group, for his cries generated the risk that they would be found. If the group's hiding place were discovered, everyone in the group, including the infant, would be killed. In these circumstances, he ruled, the others were permitted to stifle the infant's cries and cause its death.
Rabbi Efrati drew support for his ruling from Rabbi Lipschutz's discussion of the emerging child in Tiferet Yisrael. Rabbi Lipschutz never used the term “innocent pursuer.” Still, the similarities between the cases are strong. Each rabbi considered a situation in which (1) the source of the danger was clear, (2) that source would die in any event, even if nothing were done in order to save the others, and (3) killing that source might save the remaining members of the group. And in both cases, the danger to the group stemmed from the attendant circumstances of the situation, the fetus's birth and the baby's cries, rather than from the arbitrary demands of heathen terrorists.Footnote 85
The Arrow Hypothetical
Rabbi Avraham Yeshaya Karelitz (Lithuania 1878–Israel 1953), also known by his pen name Chazon Ish,Footnote 86 was revered as an outstanding rabbinic scholar of the first half of the twentieth century and as the ultimate paradigm of religious piety and saintliness. He wrote the following comment:
We may consider the case of one who sees an arrow which is about to kill many people, and he can deflect it to the other side where it will kill only one person, and those on the first side will be saved, but if he does nothing, the many will be killed and the one will remain alive. Perhaps this case is not the same as the case of turning one over to be killed, for there the turning over is a cruel act of killing a person, and the act itself [of turning over] is not one of saving lives by its nature, merely it happens in this situation to cause the saving of the others. Moreover, the saving of the others is connected to the surrender of the one to be killed, whereas the deflection of the arrow from one side to the other is itself essentially an act of saving and is not at all connected to the death of the person at that other side, who happens to be there in this case. And since on this side many will be killed, and on the other side only the one, perhaps we should attempt to minimize the loss in whatever way possible.
. . . Still, here it is worse because he is killing directly, and it has only been permitted to surrender someone but perhaps it is not permitted to kill directly. Also, the reason they killed Sheva ben Bichri was that he was a rebel against the king . . . . Footnote 87
I should make two preliminary comments. First, the hypothetical case presented will remind many readers of Phillipa Foot's famous Trolley Problem.Footnote 88 The occasion for Rabbi Karelitz's consideration of these issues was in fact a real case in which the driver of a car lost control while driving down a steep hill. The car was headed toward a group of bystanders and its impact would undoubtedly have killed some of them. All the driver could do was direct the car to the other side of the road, which he did, thereby saving the group from almost certain death. But a man who was standing on the other side was killed. The driver turned to Rabbi Karelitz for advice on whether he had sinned. Once again, as in the Baby-in-the-Bunker case, the issue presented was whether he should perform acts of penance, not whether he should be punished. Rabbi Karelitz did not give the questioner a definitive ruling.Footnote 89 Likewise, he did not resolve the question in his written discussion. It seems likely that he changed the facts of the case to a rather unrealistic hypothetical—it is hard to imagine an arrow that “is about to kill many people” and that can be deflected in a different direction—so that his musings would not be considered by others to constitute an actual ruling.
We will consider Rabbi Karelitz's formal distinction—it may not be as formal as it appears at first sightFootnote 90—between this case and the Talmudic case concerning the demand to surrender a designated person later. At this point, suffice it to note that the Rabbi's considerations include the fact that diverting the arrow's direction would save many lives. Apparently, Rabbi Karelitz was not of the opinion that numbers are always irrelevant. Note, too, that the person who would be killed is not in the danger zone of the arrow's original trajectory. In this respect, the case differs from both the Birthing-Mother case and the Baby-in-the-Bunker case, in both of which the child killed would have died anyway. Recall also Rabbi Karo's suggestion that the problem in the Talmudic case was how to select the person to be surrendered. There is no such issue in Rabbi Karelitz's arrow hypothetical or, for that matter, in the actual case of the car driver or the Trolley Problem. In all three cases, the arrow and the car and the trolley could be diverted in only one direction, where there is another person. But, I find it difficult to imagine that Rabbi Karelitz would have ruled that the driver had sinned, if the facts were that he had the choice to direct the car in one of two directions, in each of which there stood one person. And the same would appear to hold true in the arrow and trolley hypotheticals. The lack of criteria for choosing which direction to deflect the arrow seems irrelevant in these situations.
The Tyre Disaster
In 1980, during the First Lebanon War, Israeli forces took over a large building in Tyre that served as their central command headquarters. The building had several floors. On the ground floor there was a large room that served as a dining hall. Upstairs were smaller rooms that served as offices and barracks. In a surprise attack, Lebanese militants drove a truck laden with explosives into the building. The explosion shattered the entire building, destroying the upper floors, which collapsed into a pile of huge cement boulders. Many Israeli soldiers were killed. Others, some of whom could be assumed to be alive but badly wounded, were trapped under the debris. The attack occurred while lunch was being served, at a time when many—perhaps most—of the building's occupants were on the ground floor. The question arose of how the engineers might clear the mass of debris fast enough to free the soldiers who were trapped below before they died of their wounds. At one point, it was suggested that they should bring in heavy-duty bulldozers to raze the upper levels of debris, thereby hastening the approach and access to those trapped below. Of course, this would undoubtedly cause the death of some soldiers trapped in the upper levels. But it was argued that this might save many more who were trapped below. In the end, the idea was dropped. It was not practicable. But since it was raised, someone saw fit to obtain rabbinic advice as to whether it would have been permitted according to Jewish law.
The question was presented to Rabbi Shaul Yisraeli (White Russia 1909–Israel 1995), who had written extensively on Jewish law in relation to modern questions. Indeed, Rabbi Yisraeli had previously written an article dealing with the Talmudic sources that we have examined here, concerning surrendering the one to save the many, although I do not know if this was the reason his opinion was sought.Footnote 91 What is important for our purposes is that Rabbi Yisraeli is, to my knowledge, the only rabbinic authority who has explained those sources as based on the duty of Kiddush Hashem, as I have suggested here. One might therefore expect Rabbi Yisraeli to have approved the proposed scheme of using heavy-moving bulldozers to skim off the upper levels of the debris, for once again, this was a case of necessity rather than duress. But he did not. He opined, in no uncertain terms, that the proposed rescue attempt was forbidden.Footnote 92 When asked why, since the situation did not raise issues of Kiddush Hashem, he replied that it was permitted to surrender someone when Kiddush Hashem was not at issue, but not to kill someone. Homicide is too severe an offense, he said.Footnote 93
What is interesting about all four cases is that all are situations of so-called necessity, in which attendant circumstances cause the danger to be avoided, rather than cases of duress, in which the source of the danger is unlawful demands and threats that should be resisted. One may note a tendency to rule leniently in some of these cases and a rabbinic striving—even straining—to allow causing death to some in order to save the lives of the group.Footnote 94 This is consistent with the rationale offered in this paper. The principal exception is Rabbi Yisraeli's ruling in the case of the Tyre disaster. But that case can readily be explained on other grounds that we will consider below.
According to Rabbi Karelitz's reasoning, diverting the arrow (or the car) was, considered alone, an act of saving. The arrow was headed toward a group of people and would have killed many of them. By diverting the arrow from its course, these people were saved. If no one stood at the point where it fell, there would be no problem. Redirecting the arrow would have been an act of saving, pure and simple, that would have caused no collateral harm. In the given case, it so happens that someone was standing there and was killed. But this does not change the fact that the physical act of redirecting the arrow was, in and of itself, an act of saving. The Tyre case presents the very opposite scenario. Removal of the upper layers of debris would not, in and of itself, save anyone. Considered alone, it would be a pure and simple act of killing the soldiers trapped in the higher levels of the debris, an act committed in the hope that it will facilitate the saving of a larger number of persons later. Actually, the Tyre case is quite similar to the case of the surgeon who wants to cannibalize one person's body parts to implant them in the bodies of five other persons, whose lives would thereby be saved. Professor Thomson thought it clear that this would not be allowed.Footnote 95 So, it seems, do most others.
The acts in the Birthing case and in the Baby-in-the-Bunker case stand somewhere between these two extremes. These acts, too, are direct killings. But they are acts that also save. Killing the emerging child eliminates the danger to the mother. Killing the crying infant removes the immediate danger to those hiding in the bunker. The acts in these two cases kill and save at one and the same time. As such, they can be viewed as standing between the Arrow case and the Tyre case.
The case of the conjoined twins shares some but not all of the features of these cases. Severing the twins is an act that both causes death and saves life, like the Birthing-Baby case and the Baby-in-the-Bunker case. Perhaps, then, Rabbi Yisraeli, who adopted a strict position in the Tyre case, might rule more leniently in the case of the conjoined twins, notwithstanding his firm stance that killing is never allowed. And Rabbi Sofer, who forbade killing the partially emerged fetus to save its mother, might view the case of the twins as something less than a direct killing of the severed twin. In the Birthing-Baby case, the doctors proposed cutting up the emerging baby to save the mother. And the proposal in the Tyre case was to raze the debris wherein the soldiers were trapped by means of heavy bulldozers. Both cases concerned direct, hands-on killing. The doctors' recommendation in In re A was to sever the twins. While this would certainly cause the death of the severed twin “within minutes,” it would not be a direct act of killing in and of itself.
So, too, the case of the conjoined twins shares some but not all of the features present in Rabbi Karelitz's arrow hypothetical. Severing the twins would not “happen” to cause the weaker sister's death; her death would be the inevitable and almost immediate result of the severing. But the person killed in the arrow case was not the source of the danger to the group, whereas the weaker twin was the source of danger to her stronger sister. And the weaker twin would die in any event, while the person killed by the arrow was not in any danger. We cannot know how Rabbi Karelitz would have ruled in the case of the twins had it been presented to him.
It is important to note that Jewish law, as a religious system, takes these distinctions seriously, however subtle and perhaps technical they may appear to some. Secular law is largely consequentialist, concerned more with the physical and social consequences of a judged behavior than with its impact on the actor's personality. Its moral judgments of right and wrong derive heavily from the act's objective, external consequences. Such considerations are no less important, of course, in religious law. But religion is also very concerned with a person's inner world, with an individual's personality or soul. Religion's function is to improve one's soul, to purify it. An act's impact on the actor's soul, then, is a major consideration. And one's acts have internal effects, no less than they have external consequences. The more direct an act of killing is, the more it may have a damaging effect on one's inner life, even when the act of killing is justified by external circumstances. Lab students who have learned to kill lab animals, even the smallest ones, know how much more difficult it is to commit the first killing than the later ones. Similarly, many medical students find it difficult to make the first incision in a cadaver, whereas the later incisions become progressively easier. Most people have physical inhibitions that constrain the ease with which they can perform acts that directly inflict severe harm. The committing of a direct act of killing weakens such constraints, even if the act is justified. Of course, these considerations are not conclusive. They do not control the decision. But they have weight in the process of arriving at the ultimate judgment.Footnote 96
Conclusion
As we have seen, rabbinic opinions on the matters considered here range widely. As to self-defense, Rabbi Feinstein thought that the weaker twin was a “pursuer” and that the law of self-defense would allow the doctors to sever her from her sister and thereby cause her death. Rabbis Lipschutz, Efrati and Povarsky disagreed. Only one who acts out of volition may be deemed a pursuer. Rabbi Karo appears to have given broad scope to the principle of necessity in choosing the lesser evil. He even thought that, in response to barbarous demands, one might surrender an innocent person to be killed and a woman to be defiled, in order to save the remaining members of a group from similar harms. Maimonides disagreed. Under no circumstances would he permit the surrender of a woman. And believed that one may surrender a person to be killed only if that person had committed a capital offense. If, as suggested here, his position is based on the commandment of Kiddush Hashem, it is possible that he would allow greater scope for the principle of choosing the lesser evil in those cases in which the source of the danger lies in the situation's attendant circumstances rather than in an unlawful or immoral tyrannical demand.
We have also seen that the actual cases considered lend themselves to several possible interpretations. One factor that may have influenced their outcomes was the nature of the acts involved. In some of the cases considered, the act was a direct act of killing; in others, it was an indirect cause of death. In some of the cases, the immediate act saved life; but it also caused death, sometimes almost immediately, though indirectly. In other cases, the reverse was true. The immediate act was one of killing, though its purpose was to save other lives either immediately or more remotely. Given the casuistic character of Jewish law, it is difficult to reach definitive conclusions concerning “the state of the law” in these matters. Clearly, the actual decisions reached by the different rabbis did not stem entirely from abstract doctrines and generalizations. The rabbis appear to have arrived at their decisions by carefully weighing the values involved, which were often conflicting. But it does seem that these cases yield a consistent body of rulings.
