Monthly Archives: August 2011

[Source: Laws of Medical Treatment on Shabbat by R’Dov Karrol]

Does the approach cited above regarding the importance of saving the life of a fellow Jew, even if it means suspending the normal rules of Shabbat, apply to saving the life of a gentile? The Gemara (Avoda Zara 26a) rules that a Jew may provide medical treatment to an idolater during the week (provided he is paid for his efforts) but not on Shabbat. The Gemara states that the gentile will understand that one may only violate Shabbat for the care of those who are required to observe it. This is also the ruling cited in the Tur and the Shulchan Aruch [22] as well as the Mishna Berura.[23]

Many contemporary authorities have ruled that this principle is not applicable today, and I believe their views can be differentiated into two basic approaches.[24] The mainstream approach responds to the claim of the Gemara that gentiles will understand if Jews are unable to treat them on Shabbat, recognizing that Shabbat violation is only justified for the sake of those who are themselves Shabbat observers. Many authorities over the last few hundred years ruled that the understanding which the Gemara takes for granted cannot be assumed in modern society.[25] Rather, they claim, if Jews refuse to treat gentiles on Shabbat, this refusal could have disastrous ramifications, either for the doctor himself or for the Jewish community as a whole. As such, they rule that one should take whatever actions are necessary to save the life of a gentile, even if it requires violation of Shabbat laws. Within this approach, one should try to minimize the Shabbat violation required, and should only take those Shabbat violating actions that are truly necessary. Nonetheless, advocates of this approach generally assume that any violation is justified on the grounds that the deleterious consequences of nontreatment could themselves endanger the lives of Jews, and are thus to be understoodas piku’ach nefesh for Jews, which, as above, is permitted unconditionally. [26]

Alternatively, some authorities take a more principled approach to making this allowance in contemporary society, regardless of concern for the deleterious results of not saving gentile life. The mechanism for this approach is to limit the Gemara’s ruling to gentiles of the type that were common in the society of Talmudic times, i.e. idolaters, claiming that it is not applicable to the gentiles in our society. One source cited as a basis for this view is the Ramban, who counts helping and saving a ger toshav, a gentile who has accepted the seven Noahide laws, including violating Shabbat to save his life, as a mitzvah.[27] If one takes the position of the Ramban (and Rav Ahron Soloveichik points out that there are others who take this view as well), the question then remains whether contemporary gentiles are defined as gerei toshav. Rav Nachum Rabinovitch, rosh yeshiva of the Hesder Yeshiva in Maaleh Adumim and author of Melumedei Milchama, a book of responsa related to army service and security matters, applies the aforementioned principle of the Ramban, and cites authorities who rule that the gentiles of today are generally defined as gerei toshav. As such, he rules that saving the life of a gentile is warranted on Shabbat.[28] My teacher and rosh yeshiva Rav Aharon Lichtenstein of Yeshivat Har Etzion explained to me that while the views that take the first approach address the practical issue, justifying saving the life of a gentile under certain conditions, they sidestep the fundamental issue. Rav Lichtenstein said that were he to be confronted with a case of violating Shabbat to save the life of a gentile, he would act to save the life of the gentile on principle, relying on those views that allow for it in principle, not based on societal concerns alone. Rav Lichtenstein also mentioned that his rebbe and father-in-law, Rav Yosef Dov Soloveitchik, ruled that this was permissible even in cases where there would be no problem of negative results, independent of such issues.[29] Along similar lines, Rav Ahron Soloveichik cites numerous sources regarding the status of ben noach and ger toshav, leading to the conclusion that saving the life of a gentile is warranted based on the notion that saving the life of a gentile mandates Shabbat violation on substantive grounds.[30]

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[22] YD 154:2.

[23] Sec. 330:8, and in the Be’ur Halacha (330:2, s.v. kutit). The Mishna Berura decries the doctors who neglect this halacha and violate the laws of Shabbat to save gentile lives, which he says has no basis. Notwithstanding the very strong language of the Mishna Berura, there does seem to be good basis in poskim, both before and after the Mishna Berura, for doctors who act in this way. See the next paragraphs for details.

[24]  Clearly no poskim debate the validity of the reasoning of the above sources; the question is whether there is some change, either in the reaction of the gentiles to this perceived discrimination (as in the first approach), or in the status of the gentiles themselves (as in the second approach).

[25] The earliest source I found indicating this is Responsa Chatam Sofer (YD 131). Other sources include, but are not limited to, a teshuva by Rav Moshe Feinstein (Iggerot Moshe, OC 4:79), Rav Eliezer Waldenberg (Tzitz Eli’ezer, sec. 8, responsum 15, chap. 6, sec.12—it is a short paragraph from a very long teshuva on matters related to medical issues), and Rav Yitzchak Weiss (Minchat Yitzchak 1:53). A summary of this approach is found in the Piskei Teshuvot (330:2). (Note that there is a printer’s error in the citation of the teshuva from Iggerot Moshe, as it says 49 instead of 79. This is corrected above.)

[26] The Chatam Sofer mentions this as a possibility—if the ill-will could result in danger, then Torah-prohibited melachot are permitted. The Iggerot Moshe mentions this as a general concern, even if the individual doctor is not worried about his particular case, he raises a possible uproar resulting from this type of behavior, either on the part of the citizenry or the government. The Tzitz Eli’ezer explains that the doctor should have in mind that he is acting to save himself and Jewry in general from deleterious consequences rather than to save the gentile patient. The Minchat Yitzchak raises the possibility, mentioned by some of the aforementioned poskim as well, that the external pressures to perform the action lower it from a de-orayta to a de-rabbanan based on the principle of melacha she-einah tzericha le-gufah, a melacha performed for ulterior or abnormal purposes. Once it has been reduced to a de-rabbanan, he can permit based on the general rule of eiva, ill-will. While this understanding of the principle is itself controversial, it exemplifies the recognition that there needs to be a permit for melachot de-orayta.

[27]  “Omitted positive mitzvot,” listed in the Rambam’ s Sefer Ha-Mitzvot at the end of the mitzvot asei, mitzvah 16.

[28] Responsum 43, pp. 144–146. He states his opinion regarding an innocent Christian or Muslim (as opposed to a terrorist). He also claims that taking care of enemies in accordance with international regulations is also warranted to prevent ill-will toward Jews (along the lines of the first approach), a ruling for which he cites several sources.

[29] I heard Rav Lichtenstein express this idea in a tish in his home on Shabbat Parshat Lech-Lecha, 5762 (October 27, 2001). I followed up with him personally in the course of preparing this document, on 9 Tammuz 5763 (July 9, 2003).

[30] This idea is discussed in Od Yisrael Yosef Beni Chai, in the third article, titled “Be-inyan Mevakerin Cholei Akum mipenei Darkei Shalom,” on pp. 17–28. He cites numerous sources that support his claim, as well as explaining those which do not seem to fit this model at first glance. The sources regarding ger toshav include, in addition to the Ramban cited above, Rashi (Arachin 29b), Rabbeinu Yona, Sefer Yereim, Ra’avad (Hilchot Issurei Bi’a 14:8), the Ba’er Ha-Gola (CM 266, 425), the Aruch Ha-Shulchan (YD 254:3), the Rema (OC 156) with the Gra, ibid., and Rav Eliyahu Henkin (Ha-Darom 10, Elul 5719 [1959], pp. 5–9). The article, however, does not focus on the practical ruling. This information I heard from Rav Mosheh Lichtenstein, who told me in the name of the late Rabbi Dr. David Applebaum HYD, a very close student of Rav Soloveichik who was a practicing physician, that Rav Soloveichik told him that saving lives of gentiles is warranted even in the absence of the external concerns mentioned above. Thanks to Rav Mosheh Lichtenstein also for the reference to the article.

[31] Based on the Gemara Shabbat 53b, Rambam 21:20, Tur and Shulchan Aruch (328:1).

[32] Note the sources cited below, who deal with instances in which medicine is permitted and all maintain the assumption that there is a general problem. One example is Rav Moshe Feinstein’s view (Iggerot Moshe, OC 3:53).

Avtalyon would say: Scholars, be careful with your words. For you may be exiled to a place inhabited by evil elements [who will distort your words to suit their negative purposes]. The disciples who come after you will then drink of these evil waters and be destroyed, and the Name of Heaven will be desecrated.

Pirkei Avot – Chapter One, Eleven

This is something that I have been meaning to write about for a while, and although I know that this blog post is not going to do the topic justice, I want to get pen to paper and just allow a stream of conciousness to flow through.

What has prompted me to write on this:

• We are currently in the Nine days, the saddest time in Jewish History
• The recent murders of Leiby Kletzy, Rabbi Abuchatzeirah by Orthodox Jews
• The publication of books such as Torat Hamelech

• In short, Jews, Orthodox Jews have committed grievous crimes (murder, abuse, paedophilia) and caused great chillul hashem (fraud, theft, tax evasion, money laundering)  and we as a faith community have to take responsibility.
• Orthodox Jewish dialogue and leadership is forever focusing on the issue of the “ritual”, “chumrot”,”minhag” and not enough on universal, moral, human issues.
• Our educational system and mode of learning often leads to gray and fuzzy notions of right and wrong in areas where we should have a visceral reaction.  Murder, theft and fraud (of Jew and Gentile, regardless of gender, race, or religious/theological persuasion) should be issues where there is a “gut reaction”, a clear black and white that these behaviours are evil. These are not issues that you should  realise are wrong after you find them in a footnote to a footnote in a legal text.
• Many of these evils continue to perpetuate because unfortunately there are voices in our tradition that are being relied upon in practice, and in my opinion the true and correct majority voices are being droned out, not being brought to the surface.
• Our history, our tradition and our legal system, contain potentially dangerous laws  and episodes (Amalek, Apikorus, Rodef,Mesirah, Min, Moridin, etc) that if applied could lead to blood shed. Dangerous ideas in the wrong hands can lead to frightful consequences. There is not enough literature and public awareness of the danger of these texts and I am fearful of practical consequences. [Example sources below]
• Our response to all these issues is always reactive, apologetic and not proactive. Lets acknowledge wrong has been done, lets put in measures to make amends and ensure these kind of things do not happen again.

• First, acknowledgement that this is an issue. We need to change the focus and stop nit picking about “ritual issues” and focus on moral issues. There has to be an acknowledgement that moral issues are more important and that is where we currently failing, and like a reality tv show, our failures are blasted accross the international media.
• Second, lets take a forward thinking proactive response. We need books, shiurim, campains appropriate for all ages men, woman and child to install a revolution,  and prevent further moral evils.
• We need to ensure that our educational system emphasises these kind of issues, with clear direct guidance.
• As a first step I would like to see a “community” formed to discuss, promote and give  real life to some of these issues that plague us. A grass roots campaign, online, I think is the way to go.

Sources:

Dangerous Halachic Sources:

Mishne Torah –  Hilchot Rotzeach, Chapter 4, Halacha 10

It is a mitzvah to kill minim and apikorsim.

The term minim refers to Jewish idolaters or those who perform transgressions for the sake of angering God, even if one eats non-kosher meat for the sake of angering God or wears sha’atnez for the sake of angering God.

The term apikorsim refers to Jews who deny the Torah and the concept of prophecy.

If there is the possibility, one should kill them with a sword in public view. If that is not possible, one should develop a plan so that one can cause their deaths.

What is implied? If one sees such a person descend to a cistern, and there is a ladder in the cistern, one should take the ladder, and excuse oneself, saying: “I must hurry to take my son down from the roof. I shall return the ladder to you soon.” Similarly, one should devise other analogous plans to cause the death of such people.

Mishne Torah – Hilchot Mamrim, Chapter 3, Halacha 2

Since it has become known that such a person denies the Oral Law, he may be pushed into a pit and may not be helped out. He is like all the rest of the heretics who say that the Torah is not Divine in origin, those who inform on their fellow Jews, and the apostates. All of these are not considered as members of the Jewish people. There is no need for witnesses, a warning, or judges for them to be executed. Instead, whoever kills them performs a great mitzvah and removes an obstacle from people at large.

Mishne Torah – Hilchot Mamrim, Chapter 3, Halacha 11

With regard to a gentile idolater with whom we are not at war, a Jewish shepherd of small livestock, and the like, by contrast, we should not try to cause their deaths. It is, however, forbidden to save their lives if their lives are threatened. For example, if such a person fell into the sea, one should not rescue him. Leviticus 19:16] states: “Do not stand idly by while your brother’s blood is at stake.” This does not apply with regard to such individuals, because they are not “your brothers.”

The Danger is real

One believe more than any other (to quote a phrase of Isaiah Berlin’s) is responsible for the slaughter of individuals on the altars of the great historical ideals. It is the belief that those who do not share my faith – or my race or my ideology – do not share my humanity. At best they are second-class citizens. At worst, that forfeight the sanctity of life itself. They are the unsaved, the unbelievers, the infidel, the unredeemed; they stand outside the circle of salvation. If faith is what makes us human, than those who do not share my faith are less than fully human. From the pogroms, the blood of human sacrifice through the ages. From it – substituting race for faith – ultimately came the Holocaust.

Jonathan Sacks – The Dignity of Difference, Pg 45-46

Extract from an online Jewish Forum, Response by Rabbi Michael Broyde, Dayan, Beis Din of America

> 2 – According to the shulchan aruch, we pasken that we

> technically CAN kill homosexuals nowadays (harodef achar haarayos nitan

> lehaztilo).

This is a mistaken recitation of the halacha. The Shulchan Aruch (SH CM 425:3) is quite clearly limited to one who is running after an ervah to rape that person, and not a consensual sexual relationship. It is for that reason that halacha prohibits one from killing adulterers nowadays but would permit killing rapists (to prevent a rape). The same is true for other consensual — but halachically prohibited — sexual relationships; one may not kill them to prevent sin.

Given the times we live in, and ease of missunderstanding on matters of Jewish law, and the seriousness of the sin associate with killing human beings, it is extremely important that people check out the details of the halacha before they write.

Michael J. Broyde

The Slifkin Saga

In the introduction to Chapter 3, R. Schmeltzer explains that the chapter will deal with how doubting any of the words of Chazal, whether in halachah or Aggadah, is heresy. R. Schmeltzer takes the situation of such a “heretic” very seriously; in reference to this, he has a footnote quoting the Shulchan Aruch that one should bring about the death of such a person by any possible means.

Footnote: Does R. Schmeltzer genuinely believe that this should be done to people such as myself? If so, this is deeply problematic; if not, then it is extremely irresponsible for him to write such a thing, considering that there are individuals out there who take such recommendations seriously and see it as authorizing persecution, if not taking it as far as actual murder. In fact, since the publication of R. Schmeltzer’s book, I have received disturbing threats, by telephone and e-mail, not just against myself but even against my children. R. Schmeltzer and the rabbis who endorsed his work may have to shoulder some of the responsibility for such appalling acts.

Rewriting Jewish Intellectual History: A Review of Sefer Chaim Be’Emunasom Rabbi Natan Slifkin, Page 4

Why we are responsible:

Our hands did not spill this blood, and our eyes did not see… (21:7)

But would it enter one’s mind that the elders of the court are murderers? Rather, [they declare:] We did not see him and let him depart without food or escort. (Talmud, Sotah 45a)

The principle behind the law of Eglah Arufah is that a person is also responsible for what occurs outside of his domain — outside of the areas where he is fully in control. When a murdered traveler is found out in the field, the elders of the nearest city must go out there and bring the Eglah Arufah to atone for the crime, although it occurred “outside of their jurisdiction”; for it was nevertheless their responsibility to send the traveler off with adequate provision and protection.

The same applies on the personal level in all areas of life. A person never has the right to say, “This is outside of my element. I have no obligation to deal with this.” If it is something that, by Divine Providence, one has been made aware of, that means that there is something one can, and must, do to positively influence the end result.

(The Lubavitcher Rebbe)

[Source: http://www.chabad.org/global/popup/default_cdo/aid/56735/a/Shoftim21_07b/jewish/Parshah-Commentary.htm]

A step in the right direction:

See here for a thoughtful response to the Torat Hamelech book that captures many of the above sentiments – Affirming the Image of God: Statement of Scholars of the Jewish Theology Project of the Elijah Interfaith Institute

A somewhat stronger response was penned by R’David Rosen – A disturbing desecration of Jewish values