Wednesday, October 21, 2015

Mesira VIII: Blood Labels

As a teenage Yeshiva bochur, I lived nearby a JCC which, in those years, did not have separate hours for free swimming. There were, however, hours that were designated for instructional swimming and those were aptly separated for boys’ instruction and girls’ instruction. The problem was that the facility did not change the lifeguard from one instruction period to the other and the standard lifeguard was of the female variety. As such, I did not think that it was Halachically acceptable to use the pool even during instruction hours because of the presence of the underclad female lifeguard. An acquaintance with a more free-thinking mindset tried to urge me to use the pool. This person rationalized, “Well, she is there in order to protect your life so it’s a pikuach nefesh so it should be okay.”

I think (or hope) that most of us understand that this would be a gross distortion of the concept of pikuach nefesh. The potential of danger that may accompany a recreational activity cannot be employed as a tool to mattir the serious transgressions involved (which, in this case, ironically happen to border on the domain of “yehareg v’al yaavor”). And I hope that the person who suggested it was merely trying to “get my goat”. To this day, I am not sure about it and the reason I am not sure is because many of our more free-thinking brethren take suggestions such as this very seriously (or- liberally).

This was a high profile issue about five years ago when the Barzilai Hospital controversy erupted. Barzilai Hospital – located in Ashkelon – made plans for a new missile proof emergency room adjacent to its current facility. When the excavations for the foundation began, a significant number of burial crypts – bones and all – were uncovered. The kanayim of kavod hameis immediately demanded to stop the excavations and relocate the emergency room. The chilonim – and government – wanted to continue the excavations and relocate the bones (to the dust bins of history). One of the main debates centered around whether these were bones of Jews or non-Jews. If non-Jewish there would be Halachic grounds to relocate the bones but if they were Jewish, the Halacha would not permit it. Amidst all of this was an outcry spanning from the moderate religious to the knowledgeable irreligious that the construction of the new emergency room constitutes pikuach nefesh thus justifying relocating the bones in all circumstances.

This part of the debate reached the posek hador, ZT”L, who promptly ruled that there is no pikuach nefesh.

Why not?

Because, at the current time, there was not a single person whose life was currently in danger who could be helped in any way by moving these bones or by the construction of a new emergency room five years down the line. Sure, in five years from now the (proposed) brand new emergency room may help many people who might – chas v’shalom – be in life threatening danger at that future time; but a projected future pikuach nefesh that is not currently in effect does not justify transgressing Halacha today. Today’s transgression will save absolutely nobody.

We understand from this psak that pikuach nefesh carries rules and regulations. In this case we learn that pikuach nefesh requires a “clear and present danger”.

Of course, this logic does not deter the backers. If they know no other words of chazal, they at least know that אין לך דבר שעומד בפני פיקוח נפש. (Yoma 82a, Kesubos 19a) And pikuach nefesh is in the eye of the beholder. As long as we are being somaich noflim and rofeh cholim, we can be mattir issurim.

Moreover, the “pikuach nefesh” card is so-o-o Humanitarian. We must all agree that life is precious; life is holy. Ergo, when there is any kind of threat to life (real or imagined) anything goes.

From all of the pasukim that tell us the rules and regulations of pikuach nefesh, the most well known and popular is: לא תעמוד על דם רעיך. It says to us that we cannot stand upon our fellow man’s blood. Hence, if we cha”v transgress this commandment, we have our fellow man’s blood on our hands – or, at least, at our feet.

Blood is pikuach nefesh  - כי הדם הוא הנפש.

Thus, when the pikuach nefesh card has to be played, of all the pasukim that deal with pikuach nefesh, Lo taamod is almost always the one cited.

Why? Because it’s about BLOOD. Because it carries the “blood label”.

So when the free-thinking need blanket hetteirim for serious issurim, we can always rely on the blood label.

Now, pikuach nefesh is generally docheh potential transgressions bein adam l’Makom – except for the three biggies. This is because HaMakom (B”H) is a bit of a softie – or, let’s just say, very Humanitarian – when it comes to chllul Shabbos or maachalos assuros. Nevertheless, when it involves bein adam l’chaveiro – to save somebody by killing, maiming, robbing, damaging, or even shaming another person – the rules can get very strict.

Now, I have invested numerous posts complaining about an all-but-forgotten two month old one-time Kol Koreh simmering on a back burner which very likely will never again appear in print. It would probably be the wisest thing to just cut my losses. But since I don’t have much else to write about (nobody wants to hear me preach that we should all make Aliyah, especially since most Americans think coming here now would be a pikuach nefesh and they don’t want to, cha”v, stand in their own blood) and hardly anybody actually reads my stuff anyway, I may as well extend the investment.

I spoke very strongly against the language of the Kol Koreh. This is because I feel very strongly about it. There are numerous very serious problems with the way this thing was written. And the fact that so many Rabbanim approved of the way it was written is the most disturbing.

In my last post, I quoted the entire text and colorized the trouble spots. I summarized the issues but I did not elaborate on them. In this post, I want to focus on this one line:

The Torah's statement in Leviticus 19:16, "Do not stand by while your neighbor's blood is shed," obligates every member of the community to do all in one's power to prevent harm to others.

There’s the blood label.

When I complained that the Kol Koreh “misrepresents Halacha” (with the blessings of at least 108 Rabbanim), it was this line that I was referring to. Though I didn’t elaborate, I hinted to the problem when I cynically wrote “the mitzvah of  לא תעמוד על דם רעיך  has now been officially upgraded to a matir issurim”. And again I wrote: “I gather that not one of the 107 Rabbanim looked up the gemara in Sanhedrin 73a before they signed it.”

These were all hints to a gaping flaw in the text (which, by the way, could have been remedied by a very subtle change as I will discuss, IY”H). Thus I thought:
 די לחכימא ברמיזה.

I don’t have many readers so I don’t get much feedback. Yet, one loyal reader, who does not consider himself a chareidi (for good reason), emailed me offline and commented: You have no concept of Lo Samod A Dam Re'echa!!! All you care about is your own ignorance based interpretation of Halacha.”

I will have to add him to the list of those who didn’t bother to check out the gemara in Sanhedrin 73a before he took the trouble to inform me that he is an expert on ignorance.

Without calling anybody ignorant, it is clear that Lo taamod (or pikuach nefesh in general) is not fully understood and is often overplayed. Hence, it is probably a good idea to discuss the sequential sources of pikuach nefesh based on the gemara in Sanhedrin and other places.

We must familiarize ourselves with about six or seven pasukim:

Step 1 – והשיבותו לו (Devarim 22:2)

The first issue is how do we know at all that if somebody is in peril that there is a mitzvah to help him? No, the answer is not Lo Taamod. The answer is והשיבותו לו. To help somebody preserve their life is at least as worthy as to help him preserve his property. Thus, the main mitzvah of pikuach nefesh is an offshoot of Hashavas Aveida.

Step 2 – Lo Taamod (Vayikra 19:15)

Well, if we know that one must save a life from Hashavas Aveida, why do we need Lo Taamod?

The gemara tells us that Hashavas Aveida only requires one to help somebody when he (the savior) is available to help and without any personal expenditure. How do we know that for pikuach nefesh we must disrupt our schedule and expend our resources even to the point of hiring people to assist? This we learn from לא תעמוד על דם רעיך.

Still, we have learned that one must put out some cash to save a Jewish life. Yet, from Lo Taamod, we still do not know that one can transgress any issur whatsoever. Not bein adam l’Makom and not bein adam l’chaveiro. Lo Taamod by itself is not mattir any issurim!!

Step 3 – V’Chai Bahem (Vayikra 18:5)

So, how do we know that for a pikuach nefesh we can transgress an issur bein adam l’Makom (not including avoda zara and arayos)? For this we need to travel to Masechet Yoma 85a-b. There we find a lengthy discussion about how we know that one can be mechallel Shabbos even for a safek pikuach nefesh. The gemara concludes that we learn this from וחי בהם – ולא שימות בהם.

Step 4 – Ein lo damim (Shmos 22:1)

So we have learned that one may transgress chillul Shabbos (and kal v’chomer a lesser bein adam l’Makom) to save a Jewish life. But what about transgressing an issur bein adam l’chaveiro? I am sorry to say that in most cases we are a bit stuck. We have a rule in the gemara (Baba Kamma 60b) that a person is forbidden to save himself by destroying the property of others (note – Rambam and Shu”A learn that this merely means that one who does this must pay the owner). Another rule is נוח לאדם להפיל עצמו לכבשן האש ואל ילבין פני חברו ברבים.

The only real hetter that we know for this is in the case of a rodef. In this case one may save himself at the peril of the rodef. How do we know that this is permitted? This we learn from אין לו דמים.

Step 5 - V’Hukah V'meis (Shmos 22:1)

Still we only know that the person at risk can save himself by killing or injuring a rodef. How do we know that any good samaritan can do it? Is this from Lo taamod??

No it’s not. We only know this know this from והוכה ומת.

Step 6 – V’Ein Moshia (Devarim 22:27)/ V’Katzosa (Devarim 25:12)

So after all this, we know everything we need to know right? Not yet. V’Huka only tells us that it is permissible to save a Jew by killing a rodef (see Tosafos Sanhedrin 73a s.v. Af Rotzeach). But how do we know that it is a “Torah obligation”? This definitely must come from Lo taamod because this is what the Kol Koreh says.

But it’s not what chazal say. There is actually a dispute between the Sifri and the Talmud Bavli as to the source of this Halacha. The Talmud Bavli says it comes from ואין מושיע לה. The Sifri says it comes from  וקצותה את כפה. Amazingly, Rambam (Rotzeach 1:7) shuns the Talmud Bavli and goes with the Sifri. I am not sure why.

 Step 7 – V’Lo Yihiyeh Ason (Shmos 21:22)

This is the spoiler. Up to this point we have learned the sources for all the hetteirim of pikuach nefesh. We understand that there is indeed a Torah obligation to save a Jew from the clutches of a rodef. But this is not learned from Lo Taamod. It comes from other sources. Why is this important? Because not only is rodef a distinct Halacha, but it comes with limitations. Two primary limitations: (1) If he can be stopped by non-lethal means one is forbidden to resort to lethal means. (2) If the rodef already did his dirty work (and is no longer threatening this nirdaf) these extreme measures can no longer be used.

The first of the two limitations is learned from the pasuk ולא יהיה אסון, ענוש יענש. The second limitation seems to be a sevara (no scriptural source). It is also much more applicable in our discussion (Child abuse) than many want to acknowledge. The important thing is that we learn from here is that to employ the “extreme measures” to a rodef applies only when absolutely necessary. If it is not necessary, it can be a capital crime.

Thus, it’s important to attribute an “obligation” to its proper source so that we do not lose sight of the whole picture.

After saying all of the above, I will concede that these pasukim are cumulative. This means that in a case where V’Ein moshiya la (rodef) is in effect, Lo taamod is also in effect. The Rambam states this very clearly in Hil. Rotzeach 1:14.

So now let’s review the line from the Kol koreh and we can understand what is wrong with it. It says:

The Torah's statement in Leviticus 19:16, "Do not stand by while your neighbor's blood is shed," obligates every member of the community to do all in one's power to prevent harm to others.

There are two things wrong with this line. One is very minor and the other is very major.

The minor issue is that Lo Taamod is not the proper source when a Torah issur is involved (which mesira to the secular law enforcement clearly is under normal circumstances). We need to append V’Ein moshiya (or V’Katzosa like the Rambam) to Lo taamod to reach this level. Thus, if the statement were to be Talmudically accurate, it would have to read:

The Torah's statement in Deuteronomy 22:27, "And there is nobody saving her," obligates every member of the community…

So now, all my readers will say: “Come on, nitpicker! So they picked the wrong pasuk. Big deal! It’s probably just an oversight. And, anyway, it’s not even the wrong pasuk. Didn’t you just write from the Rambam that Lo taamod is still part of the sequence?!”

Of course, if this was the only issue with this line, I would definitely let it slide as an “oversight”. But there is a much more serious issue with this line. And in conjunction with the issues of other parts of the text, which will not be discussed in this post, it is hard for me to believe that any word in this Kol Koreh is an oversight.

The bigger issue is not that the chosen pasuk is wrong. It’s that the Halacha is wrong. It lies with the words that I left out three paragraphs back:

“…to do all in one's power to prevent harm to others.”

Let’s assume that the author of the Kol Koreh would have used the correct pasuk, “v’ein moshiya la”. Does v’ein moshiya la allow somebody to “do all in one’s power”?

Definitely not. If it is in one’s power to kill a rodef, and more so, if it is easier to kill a rodef than to stop him through non-lethal means (when available), it is still strictly forbidden to do so. So says Rambam in Hil. Rotzeach 1:13. So says HRH”G Rav Moshe Feinstein ZT”L in IgM Ch”M 1:8 (concerning one who counterfeits Kashrus stamps on meat). And so says Chafetz Chaim in Shmiras Halashon 10:2 that in order to be malshin on a person at any level (even not to secular authorities) – even for a toelles – one must ascertain that there is no other way to accomplish the toelles and that this course of action is absolutely necessary.

Thus, the proper statement would need to be:

The Torah's statement in Deuteronomy 22:27, "And there is nobody saving her," obligates every member of the community to do all that is necessary to prevent harm to others.

But this is not what it says.

As I wrote in my previous post, this line is a clear misrepresentation of the Halacha. And I cannot be silent about this. Perhaps most of the Rabbanim who signed the Kol Koreh either did not scrutinize the text or were reluctant but were cajoled into signing it as is (the two signatories that I spoke with thus far both admitted to the latter). Maybe some didn’t care and just followed the herd or actually felt that it is יצא הפסדו בשכרו.

But the author chose to write it this way. And the promoters from the Rabbinate promoted it as written. Are they not Talmidei chachamim?

Why did they write “all in one’s power” when they could – and should - have written “all that is necessary”; and as such they are giving “every individual” license to commit serious transgressions even when such are not Halachically sanctioned?

Do they not know the difference? Are they so callous that they do not care about the difference? Do they understand the difference but opted to write it this way regardless?

The first option is very hard for me to accept. I am not a Rav and I do know the difference.

The second two options are too frightening for me to accept.

Yet, the other issues with the text of the Kol Koreh seem to point in the direction of the last option. It looks to me, that this language was used precisely because they want these results. Halachically sanctioned or not. And so it looks to me that it was not an oversight that they chose the pasuk of Lo taamod instead of V’Ein moshiya.

Lo taamod carries the Blood label. If you don’t carry out your Torah obligation, you will have blood on your hands.

So if we assume that the text is not an "oversight" and you do not carry it out – even when unnecessary - you will have blood on your hands. And if it  really is an "oversight" and you do carry it out – but when unnecessary - you will have blood on your hands.

Is this text supposed to be taken literally or is it an oversight?

Take your pick.

No comments: