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Monday, June 27, 2016

Life-Saving 101 — BT Sanhedrin 73a (part 3) — #43

The text of the baraita [referred to above in the Gemara — please see the previous edition of TMT #42]: Whence do we know that if one sees his brethren drowning in a river, or a wild beast mauling him, or bandits coming upon him, that he is obligated to save him? Scripture teaches: Do not stand idly by the blood of your neighbor (Leviticus 19:16).
But is it derived from this source? [Rather] it is derived from this baraita: Whence do we know that a lost body [must be returned to its owner]? Scripture teaches, and you shall return it to him (Deuteronomy 22:2).
If [we learn the obligation to save someone’s life] from there (i.e., Deuteronomy 22:2), I would have said that this applies to the [rescuer] himself. But concerning hiring someone to rescue [the endangered person], I would say: No [this is not required]. Thus this [Leviticus 19:16] informs us [of the obligation to hire someone to conduct the rescue].

INTRODUCTION

The summer after I turned 15, I took a “Senior Life Saving Course” at a girls’ camp, along with a dozen counselors. The instructors solemnly impressed upon us the obligation to use the skills we were learning if ever the occasion resulted. Knowing how to save someone imposed the obligation to do so. At the time, I probably weighed 100 pounds dripping wet, and the head lifeguard more than 250 pounds. I knew I would have to swim him in for my final test—and I knew I couldn’t because my arm wouldn’t stretch even halfway across his chest. When test day arrived, he looked at me and said, “It’s pointless for you to try to swim me in. You can take your test with Mike”—the hot, 20-something assistant lifeguard. I dutifully complied, the dozen counselors shooting me jealous looks.

In this installment of Talmud’s conversation about one’s obligation to save other people from imminent threats to their life, Gemara shines the spotlight on a comment raised earlier. The Rabbis had said that Leviticus 19:16 (Do not stand idly by the blood of your neighbor) teaches the din rodef, the law that obligates one to preemptively kill someone who is in pursuit of another person with intent to kill them. The Gemara questioned the use of the verse, saying that we need Leviticus 19:16 to teach the obligation to save the life of someone in other situations of danger, and provided three examples that are repeated in our passage: drowning, wild beast, and bandits. If the Leviticus 19:16 teaches us the obligation to save people whose lives are endangered by situations such as these, then it would not be available to teach the din rodef. For the rabbis, each verse teaches one thing. But given that the Rabbis resolved the din rodef by using a kal va’chomer argument (please see TMT #42 where this is explained), we might well wonder why the Rabbis return to seek justification for saving people in life-threatening situations. What else do they have in mind?

COMMENTARY

The Rabbis quote a baraita (early rabbinic teaching that is not included in the Mishnah) that teaches the obligation to save someone’s whose life is endangered on the basis Leviticus 19:16. But then they bring an additional baraita that derives this obligation from Deuteronomy 22:2, which in context concerns the obligation to return lost property that you have found: If you see your brethren’s ox or sheep gone astray, do not ignore it; you must take it back to your brethren.  If your brethren does not live near you or you do not know who he is, you shall bring it home and it shall remain with you until your brethren claims it; and you shall return it to him (Deuteronomy 22:1-2). The baraita quotes only the last phrase of verse 2, which repeats what we were told in the previous verse. Why do we need it? How does this verse apply to saving a life? The Rabbis read it as saying that when you save someone from imminent danger, you “return” their life to them.

The Rabbis have now laid the ground for the lesson they want to draw from all this: If we were to derive the obligation to save a life from the redundancy in Deuteronomy 22:2 alone, it would apply to my physical obligation to save life. But we still have Leviticus 19:16 available (thanks to the kal va’chomer that covered the din rodef), and this—the Rabbis tell us—teaches us that if we are physically unable to save someone, we are still obligated to do what we can, for example, by hiring someone to do what we physically cannot. We not only must take a risk when we are capable of saving someone, but also expend our resources.

QUESTIONS TO CONSIDER AND DISCUSS

  1.  Deuteronomy 22:2 continues with a warning “you must not remain indifferent.” The Hebrew says, more literally, “you must not hide yourself.” In what ways do we hide ourselves so can avoid the needs and suffering of others? 
  2. What are the dangers of indifference. Extending the notion of indifference from the individual to society, the British parliamentarian, Edmund Burke, famously said: “The only thing necessary for the triumph of evil is for good men to do nothing.” Tim Holden, former U.S. Representative (Pennsylvania) has said: “The Holocaust illustrates the consequences of prejudice, racism and stereotyping on a society. It forces us to examine the responsibilities of citizenship and confront the powerful ramifications of indifference and inaction.” What are the moral implications of this claim for us vis-a-vis the many places around the globe where people are endangered?
  3. The Life Saving class instructed us that if we were unable to rescue someone, we were obligated to enlist the help of others. Does this sound like Talmud’s rules? Further, we learned in class that now that we knew how to rescue someone, it was our obligation to do so when needed. What talents or knowledge do you have that your feel obligates you? 

Wednesday, June 22, 2016

Preemptive Killing — BT Sanhedrin 73a (part 2) — #42

The Rabbis taught [in a baraita]: Whence do we know that if someone pursues another to kill him [the one pursued] should be saved at the cost of the [pursuer’s] life? Scripture teaches: Do not stand idly by the blood of your neighbor (Leviticus 19:16). 
 But does [the verse] teach this? We need this [Leviticus 19:16] for what was taught [in a baraita]: Whence do we know that if one sees his fellow drowning in a river, or a wild beast mauling him, or bandits coming upon him, that he is obligated to save him? Scripture teaches: Do not stand idly by the blood of your neighbor. Indeed, this is so.
But whence is it given that one should be saved at the cost of [the pursuer’s] life? From a kal va’chomer from [the case of] a betrothed woman: If Torah says that if the [pursuer] comes only to harm her [but not to kill her], she should be saved at the cost of [the pursuer’s] life, then if one pursues another in order to kill him, how much more so!

INTRODUCTION
Last week, we examined Mishnah Sanhedrin 8:7, which stipulates that one may preemptively kill a person who is in pursuit of another with the intent to kill or rape. This is called the din rodef (the law of the pursuer). It is the backbone for the halakhic right of self-defense, but it goes  further: On daf 72a, in a discussion concerning a thief who breaks into someone’s house, the Rabbis expound on the principle, “The Torah says that if he comes to kill you, you should kill him first.” But does the right to defend oneself extend to defending others? The Talmud says yes, it is not only permissible, but obligatory. Yet the idea that it is appropriate to kill someone who is pursuing another to kill him, but has not yet committed a crime, is not at all obvious, and many people find it disturbing. Gemara reasonably asks: How does Mishnah know this is permissible?

COMMENTARY
The Gemara opens with a baraita (oral teaching from the period of the Mishnah) that asks for a Scriptural source for the mishnah’s claim that if we see someone in pursuit of another with the intent to kill, we are obligated (if we can) to kill the pursuer before he can commit murder. Offering Leviticus 19:16 as a proof text; the baraita reads it, Do not stand idly by the blood of your neighbor, as saying that if you fail to intervene to prevent a murder, you are guilty of standing idly while another bleeds. The obligation to prevent an innocent person from “bleeding” is so great that one must even preemptively kill the attacker.

The Gemara questions the baraita’s interpretation of Leviticus 19:16 because it knows another baraita that uses the very same verse to teach a different legal obligation. Generally, the Rabbis understand each verse to teach one and only one law. In this case, Leviticus 19:16 has already been “claimed” to teach us to save the lives of people who are in mortal danger. This second baraita provides three examples of life-threatening situations: drowning in a river, being mauled by a wild beast, and being attacked by highway robbers. Such cases compel us to “not stand idly by” while another person faces mortal danger; we must do what we can to save the endangered person’s life. The Gemara affirms this second baraita’s application of the verse to life-threatening situations as correct.

Where does that leave us? Without a proof text for the Mishnah’s contention that one is obligated to kill the pursuer before the pursuer commits murder. The Gemara finds a clever work-around using an hermeneutical (interpretive) technique called a kal va’chomer, which is a logical a fortiori argument, also known as an argument from minor to major (or vice versa), or more colloquially as an “all the more so” argument. A common example of a kal va’chomer: If a certain behavior is prohibited on a festival, then it is certainly prohibited on shabbat, because shabbat is on a higher level of holiness than a festival. An example from everyday life: If Robin becomes annoyed with Pat because Pat arrives 15 minutes late for a lunch appointment after calling, it will certainly be the case that Robin will be annoyed if Pat arrives a half hour late without calling. The Rabbis apply the principle of kal va’chomer to the mishnah’s claim about preemptive killing by referencing Mishnah’s law concerning a man who pursues a betrothed woman to rape her. (We discussed this Mishnah in the previous edition of TMT #41.) If Mishnah (which the Gemara terms “Torah” because it is Oral Torah) would have us kill the would-be rapist, whose act would harm the woman but not kill her, then certainly Torah would have us kill the would-be murderer before he kills his victim.

QUESTIONS TO CONSIDER AND DISCUSS

  1. The Rabbis are struggling to find biblical grounding for the din rodef, yet in the end, they use the same mishnah that expounded the din rodef. How does this strike you?
  2. Is it possible to compare rape and murder and say which is “worse?” What happens when we try to compare one person’s suffering with another’s? Tosafot, a medieval commentary written by Rashi’s sons-in-law and grandsons, raises an objection to the kal va’chomer  reasoning here on surprising grounds: rape is biblically punishable by stoning (considered the most severe execution) while murder is punishable by beheading (a less severe form of execution from the perspective of the Torah). Hence the argument “all the more so” applied to murder from rape is not legitimate. But then Tosafot say that the relative severity of the crimes as deduced from the relative severity of the punishments is not what matters. Rather, both rape and murder cause grievous, irreparable harm to their victims.
  3. Israeli Prime Minister Yitzhak Rabin was murdered by an extremist who claimed to be acting in fulfillment of the law of din rodef (see here). Does that make you think the law is reasonable or too dangerous?

Monday, June 13, 2016

Execution Prior to Committing the Crime M. Sanhedrin 8:7 (part 1) — #41

MISHNAH: These are [the people] whom we save at the cost of their lives: One who pursues another to kill him, or [who pursues] a male or a betrothed young woman. But one who pursues an animal, or who who desecrates shabbat, or one who worships idols — we do not save these  [people] at the cost of their lives.

INTRODUCTION
(Note: Mishnah, with a capital “M,” refers to the first redaction of “Oral Torah,” was set down at the end of the second century of the Common Era, commissioned by the leader of the Jewish community, R. Yehudah ha-Nasi because he and his circle of scholars feared that the traditions would be lost if they were not written down. Mishnah is composed of a large and organized collection of oral teachings, each called a mishnah, written with a lower case “m.” Hence “mishnah"  refers to the individual teaching, and “Mishnah” to the entire compilation.)

This week we will explore a mishnah from tractate Sanhedrin, and next week we will consider a selection from the Gemara’s discussion of this mishnah. The previous mishnah and the one prior to it dealt with cases of people who could be executed prior to committing a din nefesh (capital crime)  due to expectations of what they would do in the future. M. Sanhedrin 8:5 concerns the famous case of a ben sorer u’moreh (the rebellious son) and 8:6 concerns a burglar who tunnels into a house.

COMMENTARY
In mishnah 8:7 we are told of two categories of people engaged in violating the law: Those in the first category may be preemptively killed (“save at the cost of their lives”)—before they commit the crime they are intent upon, and actively in pursuit of, committing. Those in the second category may not be killed unless and until they actually commit the crime.

A question immediately jumps to mind: When Mishnah says, “These are [the people] whom we save at the cost of their lives…”, it is clear that “their” refers to the would-be criminals, but who is the “whom” to whom Mishnah refers? In other words: Whom does preemptive killing save? The Hebrew here is ambiguous and therefore conjecture is necessary. One possibility, supported by Rambam (R. Moses Maimonides, 12th century) and R. Menachem Meiri (13th c), is that we kill the pursuer to “save” the life of the intended victim. A second possibility, proffered by Rashi (R. Shlomo Yitzhak, 11th century), is that Mishnah permits us to kill the pursuer in order to “save” him from the crime the pursuer is intent to commit. Killing the would-be criminal thereby “saves” him from the guilt and sin of committing a din nefesh, which would result in his execution and severe consequences for the world-to-come.

Let us turn to examine and compare the content of the two categories, which in turn will shed light on the question: Who is saved? In the first category (pre-emptive killing) we have one who pursues another in order commit murder, or someone who pursues either a male or a female with the intent to rape. In the second category are people who commit bestiality, desecrate the sabbath, and worship idols. As unpleasant as it is to consider much of this, there is a significant difference between the two categories: In the first category, the crime, if not prevented, would kill  or deeply wound and humiliate the victim. The second category includes prohibitions for which Torah stipulates punishment by karet (communal expulsion) or execution, but these are victimless crimes (from a human standpoint). Rashi’s understanding of who is saved can be understand in light of this distinction. For him, Mishnah permits killing the would-be criminal to save the intended victim from death, or from becoming the victim of a painful and humiliating violation, but he holds that Mishnah does not permit preemptively killing someone whose crime will not harm another human being.

The discussion in the Gemara will address a question that naturally arises: May one simply take it upon themselves to kill another person they believe about to commit murder or rape? No, the Rabbis will say, there are several other steps that must be taken, beginning with issuing a warning in the hope of interrupting the commission of the crime. Tune in next week.

QUESTIONS TO CONSIDER AND DISCUSS

  1. Do you agree with Rashi or Rambam concerning who the mishnah believes is “saved” by proactively killing someone who intends to commit a capital crime? Why?
  2. Exodus 22:16-17 and Deuteronomy 22:28-29 do not consider rape of an unmarried woman a din nefesh (punishable by execution). Deuteronomy goes on to say, “But if the man comes upon the betrothed girl in the open country, and the man lies with her by force, only the man who lay with her shall die, but you shall do nothing to the girl. The girl did not incur the death penalty, for this case is like that of a man attacking another and murdering him.” (Dt. 22:25-26). Does the distinction between the unmarried woman and the betrothed (effectively, married) woman who is raped have validity in your mind?
  3. The recent case of the Stanford University student who was sentenced to six months for rape has stirred up strong feelings. Does this mishnah influence your thinking about that case?

Monday, June 6, 2016

…Visited on the Children — BT Sanhedrin 27b (part 2) — #40

But are not children [sentenced to death] because of the sins of their parents? It is written, [For I Adonai your God am an impassioned God,] visiting the sins of the parents on the children (Exodus 20:5). There [in Exodus 20:5, Torah refers to offspring who] follow the ways of their parents, as it was taught [in a baraita]: …also because of the iniquities of their parents that are with them they shall rot away (Leviticus 26:39). [This refers to] when they follow the [sinful] behavior of their parents. You say that [it refers to] when they follow the [sinful] behavior of their parents, but perhaps it refers to when they do not follow [their parents’ sinful behavior]? When [Torah] says, Each person shall be put to death for his own sins, [the children] who abandoned [their parents’ sinful behavior] is meant. What, then, does also because of the iniquities of their parents that are with them they shall rot away refer? That is when they follow their parent’s [sinful] behavior. But is it not so [that a child may be punished for the sins of the parent]? Is it not written, they shall stumble over one another [as before the sword] (Leviticus 26:37), [meaning] they shall stumble over one another’s sins? This teaches that all [Jews] are responsible for one another. [No!] There [Torah refers to a situation in which] it was in their power to protest, but they did not.

INTRODUCTION

The Rabbis take a brief detour from a discussion about close relatives who are exempted from testifying, or serving as judges, at the trial of someone accused of a capital offense. (Please see the introduction to TMT-39, Part 1 of this passage or download pdf.

COMMENTARY

In Part 1, the Gemara brought a verse that asserts, Parents shall not be put to death because of [their] children, nor children be put to death for parents: a person shall be put to death only for his own crime (Deuteronomy 24:16). The verse seems clear enough, yet above (Part 2) the Gemara asks: Really? Are you so sure about that? After all, Exodus 20:5 explicitly says that God visits the sins of parents on children. And, indeed, Exodus 34:7 and Deuteronomy 5:9 make the very same claim.

A rebuttal to the contention that God punishes children for the sins of their parents is brought by a baraita (an early rabbinic teaching) that says, in essence: You’re misunderstanding Exodus 20:5. It does not make a blanket claim that God punishes children for their parents’ sins. Rather, it refers only to children who commit the same sins as their parents; hence the children are being punished for the sins they, themselves, commit. 

How does the baraita make this argument? According to the baraita, we learn this from Leviticus 26:39, a verse that is challenging to translate into English. Everett Fox renders it: “Those that remain among you will rot away in their iniquity, in the lands of their enemies, yes, because of the iniquities of their fathers, with them they shall rot away.” The baraita reads the Hebrew word itam (“with them”) to refer to the parents’ sins, not to the parents. Hence, it interprets the verse to affirm that children are punished (“rotting away”) not because their parents sinned, but when the children choose to sin as their parents did. The baraita concludes we can understand the verse, Each person shall be put to death for his own sins, as speaking about children who do not commit the sins of their parents and consequently are not punished. This, in turn, means that  Leviticus 26:39 applies only in the limited case of children who commit the sins of their parents.

The Gemara responds to the baraita by posing the question it initially asked: Really? Are you sure that children are not punished for the sins of their parents? After all, we also have Leviticus 26:37, which speaks of family relationships in the context of sin, resulting in “stumbling as before the sword” (sure sounds like punishment). Surely this proves that divine punishment is inflicted on family members. 

An anonymous voice responds that this teaches us that all Jews are responsible for one another. On the surface, this sounds like a good message and stopping place for this conversation, but the Rabbis insightfully realize that this message is deeply problematic. To suggest that all Jews—not just family members—are responsible for one another in the context of divine punishment for sins one didn’t personally commit broadens the inherent problem of theodicy immeasurably. If all Jews are responsible for preventing other Jews from wrongdoing, then anyone can be punished for the sins of anyone else! 

The Rabbis cannot leave the conversation here, and they don’t. They end with a corrective: The only time that one is punished for the sins of another is when they had the opportunity to protest wrongdoing, but did not do so. This means that if you see someone committing a sin, you don’t necessarily have to stop them (and often cannot), but you should protest if you can. Isn’t this common decency?

QUESTIONS TO CONSIDER AND DISCUSS

  1. The Gemara seems to feel compelled to argue against the notion that children are punished for the sins of their parents. Certainly verses can be quoted to support and reject the idea. Why might the Rabbis feel this is a pressing question?
  2. The principle that, “All Jews are responsible for one another” becomes dangerously twisted by the suggestion that “responsibility” means sharing guilt and divine punishment regardless of one’s personal behavior. How do you understand the principle?
  3. If your understand of God doesn’t include the notion of divine punishment, what lessons can you learn from this passage?

Thursday, June 2, 2016

The Sins of the Parents… — BT Sanhedrin 27b (part 1) — #39

MISHNAH: These relatives are disqualified: a brother, father’s brother, mother’s brother, sister’s husband, paternal or maternal aunt’s husband, stepfather, father-in-law, and brother-in-law—all these as well as their sons and sons-in-law. And his stepson alone [but not the stepson’s son or son-in-law]. R. Yose said: This is the Mishnah of R. Akiba, but an earlier Mishnah [said]: His uncle, his uncle’s son, and all who are eligible to inherit from him.
GEMARA: Whence this? The Sages taught [in a baraita]: Parents shall not be put to death because of [their] children… (Deuteronomy 24:16). What does [this verse of] Torah teach? If it teaches that parents shall not be put to death because of the sins of their children, nor children because of their parents, isn’t it already said, a person shall be put to death only for his own crime (Deuteronomy 24:16)? Rather, “parents shall not be put to death because of [their] children” concerns the testimony of the children, and “children shall not be put to death because of [their] parents” concerns the testimony of the parents.

INTRODUCTION
If someone is accused of a capital crime (execution is the punishment if the defendant is found guilt), may close relatives testify against him? In a seemingly unrelated question, does God punish children for the sins of their parents and take revenge on parents for the crimes of their children? This second question is intertwined with a discussion in tractate Sanhedrin concerning who may give testimony in a capital case. The passage I would like to share with you is too long and complex for one edition of TMT, so I have broken it into several parts. The two points I want to make in this introduction will lay a foundation not only for the section of the passage above, but also for what is to come.

(1) THE CONTEXT CREATED BY MISHNAH: It goes without saying that in any court case—and especially in a capital case when someone’s life is on the line—we want honest witnesses and judges who can muster the maximum amount of objectivity. Are there people who, without considering their individual character, should de facto be excluded as witnesses and judges? Our mishnah stipulates the automatic disqualification of close relatives from testifying against, or serving as judges in, capital cases. At the same time, it alludes to “R. Akiba’s Mishnah,” suggesting that R. Akiba wrote his own Mishnah, separate from that of R. Yehudah ha-Nasi. In fact, many scholars believe that R. Meir wrote his own Mishnah, as well, but neither survived as extent texts; most likely they  became incorporated into the surviving Mishnah of R. Yehudah ha-Nasi that undergirds Talmud. According to R. Akiba, one’s brother, uncle, brother-in-law, stepfather, and father-in-law, as well as their sons and sons-in-law are all disqualified; also one’s stepson (but not the stepson’s son or son-in-law) is disqualified.

(2) BEHIND-THE-SCENES CONVERSATION ABOUT “VICARIOUS INTERGENERATIONAL PUNISHMENT”: In addition to the context of the mishnah that generates this Gemara, it is important to understand the biblical verses that will enter the Gemara’s conversation because they have a storied and problematic history of their own. Both versions of the Ten Commandments (Exodus 20:5 and Deuteronomy 5:9) tell us that God is an impassioned God, “visiting the guilt of the parents upon the children, upon the third and upon the fourth generations  of those who reject Me…” Exodus 34:7 concurs. The claim that God engages in intergenerational punishment is deeply troubling, and not only to us. Deuteronomy 24:16 avers the opposite: “Parents shall not be put to death for children, nor children be put to death for parents: a person shall be put to death only for his own crime.” (Please note this entire verse. It will figure prominently in the next edition of TMT.) Ezekiel 18:20 explicitly says, “The person who sins, alone, shall die. A child shall not share the burden of a parent’s guilt, nor shall a parent share the burden of a child’s guilt.” Clearly, those with a hand in writing Deuteronomy and Ezekiel were uncomfortable with the notion of  intergenerational punishment! So was Onkelos. In his Aramaic translation of Exodus 20:5, he expands the verse (I’ve bolded his additions) to address its inherent ethical problem: “…avenging the sins of the parents upon the rebellious children, upon the third generation and upon the fourth generation of those who reject Me, when the children follow their parents in sinning.” The notion of a God who punishes children for the sins of their parents seems abhorrent to us in the 21st Century, but this is not a modern moral innovation: it struck many who lived 2,500 years ago the very same way. 

COMMENTARY
The Gemara asks: How does the mishnah know that all these relatives are excluded? A baraita (mishnaic-era rabbinic teaching not included in the Mishnah) supplies an answer, quoting Deuteronomy 24:16, which is taken to refer to testimony presented at trial: 
(a) Parents shall not be put to death for children, nor children be put to death for parents: (b) a person shall be put to death only for his own crime
This verse appears to be redundant: (a) and (b) seem to teach the same thing, but for the Sages, that cannot be. The baraita explains that (b) precludes parents and children from being tried for each other’s crimes; (a) concerns giving evidence at trial: parents cannot be convicted on the testimony of their children, nor children convicted on the testimony of their parents.

QUESTIONS TO CONSIDER AND DISCUSS

  1. If children should not be punished for the sins of their parents in a human court of law (Deuteronomy 24:18), is it hypocritical for God to do so (Exodus 20:5)? Is there another way to interpret Exodus 20:5?
  2. Torah includes numerous contradictory ideas, large and small. One approach is to attempt to harmonize the contradictions. Another approach is to acknowledge Torah as a multi-vocal text. which approach do you prefer, and why?
  3. Who (if anyone) do you think should be automatically disqualified from serving as witnesses in a capital case, and why?