Many thanks to Shlomo, Jeff, Shlomit, Dov, and Shalom for participating in this symposium.
Please click on the links below for the materials for this symposium:
- For a copy of Zuckier’s paper (with permission from the publishers), please click here.
- For a copy of Wallerstein’s response, please click here.
- For a copy of Frimer’s response, please click here.
- For a copy of Carmy’s response, please click here.
- For a copy of McMahan’s response, please click here.
- For Zuckier’s replies to the above, please click here.
Please join in the discussion by posting a comment or question below.
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First of all, I want to thank all of the symposiasts so far for their contributions, and, of course, to Shlomo Zuckier for his original piece. I have a few comments that I’d like to make. This first one is primarily for Zuckier, Wallerstein and McMahan.
One issue that has been raised against Zuckier’s two track account is as follows: we might think that the laws of machteret should be more stringent than the laws of rodef. In a case of rodef, there is certain danger to life, and yet the law requires you to use less than lethal force if possible. In a case of machteret you are not required to use less than lethal force, and the case can be one where it is doubtful whether there is really danger to life in the first place. This seems odd.
I’m not entirely satisfied by Zuckier’s response to this concern, in terms of a distinction between a philosopher and a halakhic-philosopher, where the former reasons things out until their very end, and the halakhic philosopher is willing to philosophise as far as possible before conceding to the authority of the Divine law. I might talk about my dissatisfaction with that line of response in another comment, time permitting.
I would like to offer another suggestion. I’d be interested to hear if Zuckier would endorse it, and whether it goes towards mollifying, at all, the concerns of Wallerstein and McMahan.
The suggestion is this: divide quite sharply between what is permitted by Jewish law, and what the demands of ethics might be.
With the sharp distinction in place, we could perhaps say that in the machteret cases, the law is simply allowing a person to act in a way that isn’t best ethical practice. It’s allowing this, without, of course, demanding it, because it recognises that it would be somehow inappropriate to bind a person with legal culpability when their life is at stake.
Ethical best practice would obviously be to use less than lethal-force where possible.
Ethical best practice might mean that you shouldn’t flee for your life across the bridge, if you know that doing so will lead an innocent bystander to plunge to their death.
Ethical best practice might very well condemn the use of lethal force when there is anything short of certainty that it is required.
And yet, the Divine command that underpins the machteret case might be saying that even though ethical best practice demands what it does, when a person’s life is directly under threat, the law cannot compel a person to act in accordance with best ethical practice, and will grant a person permission (within certain limitations) to act not in accordance with best ethical practice, in order to save their own life, without facing downstream legal repercussions.
If rodef and machteret cases are both ethical principles, I can feel the tension that was being pushed on Zuckier, but if rodef is a legal principle that conforms more tightly, and machteret a legal principle that conforms less tightly, with the demands of ethics, then I can see the tension diminish somewhat. I’d be interested to hear people’s perspectives on this.
Congratulations to the AJP on hosting this rich symposium and to Shlomo Zuckier for the original article. Sam, as I understand it, your suggestion above is essentially that in the machteret cases “dibbera Torah keneged yetzer hara”. One question is how extensively one wants to use this principle. It has of course been applied by modern Jewish thinkers to a whole range of areas where it might help to ameliorate a clash between the Torah’s commands and out ethical understanding – e.g. Amalek, laws concerning women, the eating of meat, the institution of the go’el hadam etc etc. Sam seems to me to be suggesting an interesting application of the dibbera Torah principle motivated by quite different considerations. A question this raises is what the limitations might be on the plausible application of the principle – though Sam’s application of it does seem plausible to me.
Thanks R. Michael.
I can see how one might think we’re dealing with the principle of ‘dibbera Torah keneged yetzer hara’. That phrase translates to ‘the Torah addresses the evil inclination’. And the idea, roughly speaking, is that Jewish law makes certain (often temporary) allowances for our moral imperfections.
But you’re also right to note how this would be a different application to the standard application of that principle.
Generally, the principle is invoked to explain how an earlier stage of the halakha seems to be less ethically evolved than a later stage of the halakha. Could it be that the Divine law was less ethically sensitive than the institutions (tekanot) of the Rabbis? No. The answer, when this principle is invoked, is that the earlier stage of the halakha was an allowance for a less evolved population, or something like that. God now expects more of us!
My invocation of the principle, here in machteret, doesn’t explain, or anticipate, evolution of the halakha. Nobody is suggesting that the ruling of machteret is something that’s going to change as we get better. Human nature, in this respect, isn’t subject to change over time. People who’s lives are directly at risk will almost invariably (except for the odd saintly individual) fall short of the full expectations of the ethical life, and thus the law expects less from us in those situations. I can see how that might be an invocation of dibbra torah keneged yetzer harah.
And yet, I wonder…. can it really be called an ‘evil inclination’ if it something that is almost super-human to overcome? Perhaps. The evil inclination does get the better of all of us sometimes. Just because it takes a super-human effort to circumnavigate, doesn’t mean that it isn’t the evil inclination. I wonder, though, whether the right principle to invoke here, might be: lo nitnah Torah lemalachei hasharet – The Torah wasn’t given to the ministering angels (but to human beings).
The operative idea here is that the law simply cannot expect mere human beings to act with great levels of consideration and proportionality when their lives are, or are even perceived to be, in immediate threat. And therefore, the Torah, which wasn’t given to angels, but to human beings, doesn’t expect from us more than we’re generally capable of.
Maybe ethics sometimes does demand more; more even than what we human beings are generally capable of. Here we get into the territory of whether ought implies can, but I don’t think we have to be dragged there. Let’s assume that it’s possible, for all human beings, to act better, ethically, than the law demands in situations of machteret. But even though it’s possible, it might be considered so very difficult (not just in a given society, but through all societies and at all time) that to fail cannot be considered to be ‘evil’. If that’s the case then perhaps the latter principle is more appropriately invoked than the former.
I speak as a complete ignoramus. I do not really know the legal parameters of either of these principles. I am, rather, thinking aloud.
But thanks for the suggestion, R. Michael, it throws up some interesting questions.
And yes: it would be really interesting to investigate the parameters of both of these principles. I accept that the former is of key importance to modern orthodox thought. People who are unaware of this principle and its application in modern orthodox thought, should really check out your book, for more details (http://www.amazon.co.uk/Faith-Without-Fear-Unresolved-Orthodoxy/dp/0853038996).
To Sam’s suggestion: I think we are moving in the same direction. I noted, both in the paper and the response, that there is a difference in the nature of the two tracks of intervention – one is mandatory and the other optional. One is the “objective right thing to do,” while the other is a dispensation, maybe even a “concession” (in my response) to a person’s right to function in the world.
I did not tie this to my tentative thought regarding the unique nature of a halakhic-philosophic analysis, and I similarly see no reason to say that one track is moral and the other is halakhic – both tracks are ethical-legal, but one is an obligatory, morally clear point and the other is an option, or a trump card, that is offered despite less moral clear prima facie.
I also see no need to invoke the category of דברה תורה כנגד היצר (see Ishay Rosen-Zvi’s important book, Demonic Desires, for the varied application of that category throughout rabbinic literature), beyond the point that it may be a concession. (Incidentally, I do not think that that phrase need be tied in any fundamental way to evaluation of Halakha.) I agree with Sam that I don’t think there is the expectation that people transcend their human nature and not take action in these cases.
I think your point, Sam, might be bolstered by Rav Kook’s understanding of the difference. He explains it very similarly. See Mishpat Kohen 139 (below).
As for the difference you noted, I think an argument can be made that the case of the maḥteret one does need to be careful, but given the surprise and circumstance one simply isn’t able. Some sources that point in this direction: Mishnah L’Melekh (Ḥovel U’Mazik 8:10), שאול ומשיב (מהדורה תליתאה חלק ג סימן מט), and Kenesset HaGedolah CM 3:425, Comments on the Tur, comment 31.
I would also like to comment on your last point about the rodef and maḥteret being legal principles. I think Dov Frimer makes it very clear from his articles (specifically towards the end of הגדרת דין רודף) that they are legal principles that have certain applications. The fact that when a person who brings a jumping donkey onto a boat, then the donkey is considered a rodef ONLY when it is uncommon to bring donkeys on the boat, indicates that there is something more going on. I would also like to point out that the case of maḥteret is considered a ודאי, while the case of rodef (by comparison) is not considered so. The “ודאי” status, as the Gemara and Rashi point out, comes as a result of a חזקה, which itself is a legal category. So I think your last point hits it on the mark.
שו”ת משפט כהן (ענייני ארץ ישראל) סימן קלט
והאי מרגניתא, דהעלה מר בד”ק היקרים, די”ל דל”ק הריב”ש את חדושו לגבי נרדף כ”א בש”ד ממש (ולא בערוה),דא”ש לישב בזה הקושי’ מסנהדרין ע”ג דמתרץ הקו’ דאלו נערות ביכול”ה באמ”א, וקשיא דמ”מ ח”מ לגבה דידה,הנה אפילו אם נאמר כטעמא דידי, דלגבי נרדף הו”ל בדרך הותרה, ג”כ א”ש, דל”מ הותרה כ”א בש”ד גבי מחתרת,דגלי קרא א”ל דמים, וא”ל בו אלא חדושו. אלא די”ל, דזה תלוי בדהג”מ שם בפלוגתא דר”י ורבנן, דאם נאמרדטעמא דמצילין אותה בנפשו הוי משום דמסרה נפשה לקטלא, א”כ הו”ל ממש כמחתרת, דהוי רודף, משום דא”אמעמיד עצמו ע”מ, וקאי גם ע”ז אין לו דמים. אבל אם נאמר דאפגמא קפיד רחמנא, אז ודאי י”ל אם יכולה להנצלמפגמא ע”י אחד מא’ אסורה להרגו, דאין כאן הותרה כ”א דחויה. וי”ל כמש”כ, דבגואה”ד גלי קרא משום כי יחם לבבו, ומזה אין חילוק בין הורג באיסור או הורג ברשות, שכיוןשעכ”פ לא הי’ מחוייב בהריגתו יש כאן כי יחם לבבו בגואה”ד, ומשו”ה אינו נהרג עליו, ה”נ י”ל דההיתר שהתירהתורה להרוג בבא במחתרת, משום דא”א מעמיד עצמו ע”מ, הוי היתר מצד טבעו של אדם, שירדה תורה לסו”ד,דאינו יכול להעמיד עצמו נגד זה, וממילא בא ע”ז ההיתר. ולפ”ז אין חילוק, שגם אם הרודף רודף במצוה מ”מהנרדף א”י להעמיד עצמו, וממילא הוי היתר לגביה. וטעם זה יהי’ יותר מרווח ממש”כ כתר”ה חביב לבי שליט”א,משום דגבי פינחס הוי רשות, די”ל דאע”ג דהוי הלכה וא”מ כן מ”מ מצוה איכא, והראי’ השכר הגדול שלו, אלא דמ”מ הנרדף א”י להעמיד עצמו נגד רודפו, והוי כאנוס, ומשו”ה אמרה תורה א”ל דמים
Now a second, and related issue – a question for Zuckier.
Given that I’m sympathetic to your two stream account, especially in the light of distinction I drew in my previous comment, I now have a worry.
I’m not sure I can see the difference between running down a bridge to save my life, knowing that it will knock a person to his death, and not grabbing the water bottle from the hand of my friend, when his meagre water ration is my only way of surviving the heat of the desert. I recognise that some sort of passive-active distinction might do some of the work here. But it’s troubling.
I likewise can’t see the difference between the innocent bystander who will certainly be shot if a bullet passes through the rodef, and the person who the mobster asks me to kill in order to save my life.
I recognise that we’re in territory akin to the trolley problem, but I do urge you not to throw your hands up and declare that the difference between these cases is simply between what Jewish law sanctions and what it doesn’t.
I would argue that a Jewish philosopher has a duty to try to take the philosophy to the very end. They might have reasons for submitting to the authority of the law even when they don’t understand it, but that doesn’t mean that their work as philosophers is done.
What is the difference between running down the bridge and knocking over one’s fellow, which I argue is permissible, and taking water from one’s fellow traveler in order to be saved from dehydration at the expense of the fellow?
I see a very significant difference between the two cases. In one of them you are doing what is otherwise permissible – running down a narrow bridge – which has the secondary effect of knocking over the fellow. In the other you are doing what is otherwise impermissible – stealing – where the primary action is immoral. From another perspective: in the bridge case, if you could run without knocking him over, you would; as such, you are merely exercising your rights in a difficult situation. In the desert case, you can only accomplish what you want by infringing on the other’s rights (or, one might say, by violating the prohibition of Gezeilah).
My final comment (as of now) is for Dov Frimmer.
I’m trying to get to grips with what was seen to be the flaw in Zuckier’s methodology. I found his response to some of your particular points to be very compelling (in terms of forfeiture of a right to life having feet within the tradition, irrespective of the fact that suicide is not permitted, and in terms of his reading of the Rambam). But I think that there’s more to discuss in terms of the broader methodological issues that you raise.
I recognise that we have a duty not to impose our own preconceptions upon a text, and to listen to what a text, and a textual tradition is trying to say to us.
But I have a number of reservations about what you said.
1. I see the worth in philosophical investigation of particular strata of Jewish thought (i.e., just the Tanaim, or just the Amorayim, or just the Rishonim, etc.), as long as one isn’t pretending, in so doing, to be representing the full vista of Jewish thought on any given topic. I felt as if you were not sensitive to the academic worth of such an endeavour.
2. I think that engaging with the secular literature is just a way of making sure that you’ve carved out all of the possibilities lying in logical space, on a given issue, which can then help you to see where the Jewish texts lie, in that logical space, and whether they have, indeed, charted new/distinctive territory in that space. Why shouldn’t that be encouraged?
3. It probably isn’t possible to ‘listen to what the texts have to say’ without imposing something of your own time and culture upon the text. I agree that moves should be made to limit this imposition, or at least to understand when, where and how it occurs. Indeed, when Rabbi Soloveitchik ends the Halakhic Mind, with a hope that we should excavate Jewish thought to discover which parts are indigenous, and which parts came in from outside influence, he wasn’t asking for us to purge those bits that came from the outside, so much as to better understand our tradition and its evolution. So, we can’t really hope to have a tradition that’s pure of outside influence, and the idea of somehow hermetically sealing the Jewish tradition into it’s own breathing space seems to be an impossible ideal to achieve, even if we place certain checks and balances in the way of undue foreign imposition.
4. Moreover, you might even think that placing such checks and balances is to some extent foreign to the Jewish tradition. The Jewish legal tradition, as a legal tradition, has always been open to outside influence, even in interpreting its own texts. Muslim jurisprudence influenced the Rambam. Rav Aharon Lichtenstein was willing to accept, to some extent, that Brisker Torah brought distinctively nineteenth century concepts to bear on the Talmudic texts, undermining, to some extent, the claim that they could have been unearthing the original intent of those authors (he defends ‘the conceptual approach to Talmud’ in the light of this critique, but doesn’t deny that the critique has a point, if original intent is your primary concern). Why, then, is utilising the tool-kit of analytic philosophy of law any worse a crime than that performed by these linchpins of the tradition itself (from the Rambam to R. Chaim)?
5. I recognise that there may be some danger, from an Orthodox religious perspective, in tying up halakhic positions with external philosophical ones. The danger is that if the halakhic position that is deemed to be authoritative is eventually tied up to the losing side of the philosophical debate, then our faith in and our commitment to adhere to the halakha (Jewish law) might be put in jeopardy. I’m not completely sure how to assuage this fear – given that it isn’t really a fear that grabs me with any force – but I would be interested to hear how symposiasts and others might want to respond to it.
I am not convinced R. Zuckier truly did follow a train of thought–be it Rambam, tannaim, etc. What Zuckier did was somewhat creative, but I think he went outside of what the texts allowed. This brings me to your later points: I agree your sentiments, but we can’t venture into the philosophy without fully getting down all the facts on the ground. I am very confident that the Rav meant that we create our philosophy out of the halakhic sources. Frimer brings the halakhic sources and does just that. Zuckier just doesn’t seem to.
I would also like to add that some (if not all) of the points raised by Zuckier are addressed in Dov Frimer’s articles. I will admit that Frimer’s response was not as robust as what he wrote in his articles, but to fully understand Frimer’s critique I think it’s only fair to look at his articles (and the mekorot he quotes).
On a separate but related note, I do not think there is some “stream of thought” Zuckier is really following. I firstly think that Zuckier is forcing his reading into the Rambam’s words. I think Frimer very succinctly deals with it both in his response here, but I think he bolsters his reading even more in his articles. I think it’s important to note HOW Rambam used the term “rodef”. As I pointed out in my earlier comment, the term is used for situations where the usage is clearly from a legalistic perspective. In an earlier conversation, Sam suggested that it might be following a stream of thought from the Talmud, but I find that hard to believe. How can it be the legal philosophy of the Talmud when the Talmud itself indicates otherwise Reading those sugyot one is left with clear impression of what a rodef is. That understanding started with Rishonim and continued on to Achronim/poskim. And might I add, that the understanding and consensus comes out from the sugya itself. The proofs brought come from the mishna and gemara there. There are certain very clear facts you cannot get around. While I have a tremendous amount of respect for Zuckier and the work he does, I must admit that I think he forced his reading into the sources. Hence, I return to my same point: get the halakhic data down before developing a philosophy. When the Rav, for example, articulated a philosophy for tumah and teharah, he did it based on many of the halakhot of tumah and teharah (and if I am not incorrect his thoughts were based off Rav Chaim). There is without a doubt room for creativity, but in this realm, creativity must come out of the sources. I remember when I was learning in yeshiva something along the lines of “to be a master of halakha one needs to give oneself up to halakha.” I think that maxim (assuming that’s how it is articulated–Sam and Zuckier can verify that for me) can aptly applies here.
I would just like to end by reiterating my utmost respect for Zuckier and the work he does. I truly think he is doing great things and I find him not just an intelligent man, but a person of great character. So I truly do apologize if my words come off harsh, Zuckier.
Dear David S.E.N.P.,
Thank you for your response, which included both the sentiment that the approach I presented “went outside of what the sources allowed” and that I was a decent guy. I am inclined to disagree with both propositions (although let us leave the ad hominem material for another time), but have a difficult time doing so given that you did not point to any claim of mine in particular as being unwarranted or incorrect. If you formulate your objection in a more specific way, I would be happy to attempt to respond to it.
I will prophylactically repeat once again the following two point: 1. My argumentation does not diverge much from Dr. Frimer’s. 2. In this paper I was presenting “A Halakhic-Philosophic Account of Justified Self-Defense,” and not “The Halakhic Account.”
I want to thank Shlomo Zuckier for a very engaging article, as well as the other participants who responded to his piece. While I appreciated much of what he had to say, there is my view, a significant flaw in his basic argument regarding the distinction between rodef and ba-ba-mahteret, particularly in relation to the Talmudic passage on which he focuses.
Zuckier argues that the case of rodef is to be functionally distinguished from the case of ba ba-mahteret. He argues that, on the one hand, the right to kill linked with ba ba-mahteret (as compared to rodef) “applies in a broader range of cases, including those of uncertainty.” Yet, unlike the case of rodef, this broader right to kill “may be applied only by the attacked party himself.” (p.38)
In Zuckier’s reply to the respondents, he discusses a situation in which “killing by the threatened party is justified based (on my [i.e. Zuckier’s] view) not on the rodef category but based the category of mahteret, serving as a threat, even without malicious intent or taking any action against the threatened party, on a personal partiality basis.” (p.8) He goes on to state: “For this reason mahteret has lower standards in order for it to apply than does rodef. And this is why the Torah provides a dispensation for one innocent person to kill another.” (p.8)
Thus, he states that there are two distinct categories, wherein mahteret (in contrast to rodef) can allow for one person to kill another even one the second person is ‘without malicious intent’ and can thus justify ‘one innocent person kill[ing] another’, but that this right-to-kill applies only to the threatened person him or herself, and not to a third onlooker or observer.
Much of his argumentation comes from analysis of BT Sanhedrin 72a-b, and my response here will be likewise based on that same text. Specifically, I argue that the most coherent reading of that text does *not* indicate that mahteret and rodef are to be viewed as two distinct categories for killing in the manner that Zuckier claims.
Zuckier acknowledges this possibility when he notes, “ One might challenge the existence of a separate category teaching a rule of im ba lehorgekha hashkem lehorgo, and claim instead that there is only one principle of rodef, applied to ba ba-mahteret as well.” (p.32)
He goes on to state: “The primary support for this would be the Talmud’s learning from the word ve-hukkah that anyone may kill the tunneler, as he is considered a rodef (BT Sanhedrin 72b). However, I find this explanation problematic, as it does not explain the major differences between the two cases, and it appears that at least Ran and R. David read the two cases as distinct from one another. Given this, I would understand the discussion there as pertaining only to a case in which the tunneler is a clear rodef. In cases in which there is no clear attack, or in cases of passive threats, there would be no rodef and hence third parties would not be justified in killing the threat (if we were to follow only the laws of rodef and not introduce a separate category).” (p.32)
In response to this, a number of points seem relevant:
While Zuckier mentions that the Talmud extends to ‘any man’ the right to kill the tunneler, he does not cite the actual text of that passage. The Talmud states (BT Sanhedrin 72b): “Our Rabbis taught: [If a thief be found breaking up,] and be smitten, — by any man; that he die, — by any death wherewith you can slay him. Now, [the exegesis] ‘And be smitten, — by any man’ is rightly necessary; for I might think that only the owner may be assumed not to remain passive whilst his money is being stolen, but not a stranger: it is therefore taught that he is a rodef, whom even a stranger may kill [in defence of the owner] [קמ”ל דרודף הוא ואפילו אחר נמי].”
On the face of it, this talmudic passage states that, in the case of the thief breaking in, scripture interprets ‘and be smitten’ (ve-hukkah) as meaning that anyone (not merely the homeowner) can kill the thief breaking in. This would undermine Zuckier’s point that mahteret is a distinct category that applies only to the threatened person him or herself, and not to a third-party onlooker. Rather, the Talmud appears to state that the thief breaking in is treated as a rodef, which means that both the threatened homeowner *and* a third-party can act equally against him.
Zuckier instead claims that this talmudic discussion pertains “only to a case in which the tunneler is a clear rodef.” But there is no indication that this is the case; rather, the text seems to be talking about the ‘general tunneler’, who is to be treated as a rodef, and not simply about a specific ‘clearly-a-rodef tunneler.’
Zuckier says that he does not treat the general tunneler as a rodef because, in his words, “I find this explanation problematic, as it does not explain the major differences between the two cases.”
However, one can explain the difference between the two cases as follows: the case of the mahteret requires further specification because it is a case in which the intent of the thief to kill is not clear, i.e. it is not clear whether he came to kill or only to steal but not to kill. By contrast, in a typical rodef case, the intent of the pursuer is assumed to be clear. Thus, the Talmud seems to be saying: ‘In the case of the normal rodef, we know that a third-party can kill; however, in the case of the tunneler, it is not immediately obvious that a third-party can kill.’ It then answers: yes, a third-party can kill also in the case of the tunneler — we learn this from ‘ve-hukkah’, and it means that in this regard the tunneler is equivalent to the rodef, who can also be killed by a third party, and so likewise the tunneler can be killed by a third-party.
Thus, the homeowner and the third-party are stated to be in equivalent positions with regard to the thief breaking in, and so there is no need to posit that mahteret constitutes a distinct category in this regard. In other words, ‘personal partiality’ does not seem to be involved here, and its relevance is even explicitly raised-but-then-ruled-out by the Talmud (‘I might think…’). So, at least from this passage, there is no indication that the the threatened person has greater leeway than a third party.
It is true the case of mahteret *does* provide expanded leeway for killing — as the Talmud states with regard to the thief, “If it is as clear to you as the sun that he is at peace with you, do not kill him; if not [and you are unsure], kill him” (BT Sanhedrin 72a). In other words, if you don’t know whether or not the thief intends to kill you, you can kill him; you should refrain only if you it is clear that he does not intend to kill you.
However, in addition to applying to both the homeowner and a third-person, this is significantly different from Zuckier’s claim that the category of mahteret applies to a case in which the other person is “without malicious intent.” However, this seems incorrect. Even in the case of the mahteret, it is still the case that killing is justified *only on the presumption of malicious intent.* It states that one is given license to kill if, empirically, one *cannot tell* if there is malicious intent, but it does not state that one can kill another that is clearly ‘without malicious intent’ — on the contrary, this is explicitly stated as forbidden. Thus, contra Zuckier, the category of mahteret does not seem to involve “a dispensation for one innocent person to kill another,” but rather a dispensation to kill in a darkened and aggressive situation in which it is structurally plausible that the other person might well have an intent to kill, but in which one can’t discern clearly whether this is the case. In other words, it is a scenario that still involves a presumption of aggressive intent to kill, and so in this regard is not substantively different from the rodef. (As a side note, the concept of a ‘minor who pursues his fellow’ also appears to involve aggressive intent, even if the minor could not be held legally liable for an act of killing. Minors — even three-year-olds– certainly have the capability of being aggressive!)
The main difference between mahteret and the typical case of rodef is primarily an issue of unclear knowledge, but the basic principle that justifies the act of killing is the same, and still depends on malicious intent. Thus, both with regard to the question of who can kill (threatened person vs. third party) and with regard to the need for the presumption of malicious intent, the Talmud seems to be treating mahteret and rodef as two variations on the same category, rather than two categories that mark a distinction between ‘personal partiality’ and ‘objective justice.’ Rather, both categories fall seem to fall under ‘objective justice’, without a difference in who does the killing of the aggressor.
This then stands as an argument against Zuckier’s basic claim, that rabbinic tradition supports a notion in which ‘personal partiality’ can justify an act of killing that third-parties cannot engage in, and in which the killed party can be ‘without malicious intent.’ The lack of a such a notion, moreover, would have implications for the permissibility of certain other types of killing, particularly regarding the case of innocent bystanders. (While Zuckier does not go into detail, he does state in his response that “I do not think I committed myself at any point to not allow for killing a bystander if done indirectly. If one targets the bystander and kills him, that would be problematic, unless he was trying to remove the bystander from his way.”[p.8] By contrast, as I argue in a forthcoming article, the halakhic conceptuality of classical rabbinic literature does not appear to justify the killing of a bystander *even if done indirectly*, and even when seeking to achieve an otherwise-justified goal.)
It is certainly possible that there could be some streams of thought in the rishonim or acharonim that provide more room for Zuckier’s notion of ‘personal partiality in killing’ in certain cases (e.g. the instance cited by Zuckier on p.45, regarding the Meiri’s comment on a mother and her newborn baby); however, at least in terms of the texts of classical rabbinic literature/chazal, there does not seem to be a strong prima facie basis for such a notion, and in particular the concept of ba ba-mahteret does not seem to provide support for this notion.
I should note though, that while I disagree with specific aspects of Zuckier’s analysis for the reasons stated here, his piece nevertheless makes many good points, and moreover, does a good job of seeking engagement between rabbinic-halakhic tradition, on the one hand, and treatments of killing in contemporary academic ethics and philosophy, on the other hand — without reducing either one to the other. Further such engagement is sorely needed, and so we should thank Zuckier for helping to point the way in this regard.
-Daniel H. Weiss
Sam, here are some preliminary thoughts I had reading your first comment.
Your suggestion of a split between “best ethical practice” in relation to the laws of Rodef and “less than best ethical practice” in the case of Machteret can be related to a somewhat different distinction that exists in modern-legal philosophy between justifications and excuses. modern criminal law recognises 2 types of defences: justifications and excuses. Justifications are those rules which address the conduct element and provide us with guidance as to what is the right thing to do. So, for example, if you ask a lawyer what should I do if someone is coming towards me with his gun drawn the lawyer will tell you that the right thing to do is to defend yourself and kill (or injure) him. Excuses, on the other hand, provide us with an exemption from criminal liability but it is not based on the conduct being right but rather on some relevant characteristic of actor. That is to say, although we think that the conduct is wrong we nevertheless do not think that the actor should be held criminally liable. For example, if a 7 years old child breaks a window though we do not think that breaking the window is an acceptable conduct we also do not think we should hold the child liable due to his young age. Thus, justifications are best ethical practice principles whereas excuses are practices which although are not the best ethical practice behaviour (and, thus, will not be used to provide a-priori guidance) offer exemptions from criminal liability.
But there are 2 important differences between the justification-excuse distinction and the one that you draw: First, while justification offers us the best ethical practice guidance it does not impose an obligation. Rather, it gives us “a right” to act in a certain way. I may choose to kill the unjust aggressor that threatens my life, but I may nevertheless prefer not do defend myself, and if I choose not to defend my self I will not be criticised for it. whilst the rule of Rodef, according to your interpretation is mandatory. That said, I am not convinced that it should be read as mandatory as opposed to a permission and I would urge you to explain what is the basis for the claim that the rules of Rodef impose an obligation as opposed to a right (I did not find any evidence for such reading in the sources disucssed in Zuckier’s paper, but I may well be wrong).
The second difference is between excuse and the Machteret rule. Indeed both categories address relevant characteristics of the actor – the imperfections of humans. However, under your interpretation the rules of Machteret set out an a-priori permission to act in a certain way. In effect, it is still a recognition of “a right”, and still offers guidance although it is recognised that this is not the best ethical practice. Whereas excuses, do not offer such guidance but rather only an exemption from criminal liability.
This last points takes me to what I think is at the core of my concern about your interpretation of Machteret rules – which is that you are willing to permit a person to prefer one life over the another although you do not think all things considered this is the best ethical solution, and that simply sounds wrong to me. I think that Jewish law aspires to provide us with ethical principles by which one ought to live. I do not think that the law shy away from rules which are hard to follow, especially when those rules involve harm to another person. The law may recognise an exemption from criminal liability due to human imperfections but that is different than recognising “a right” which permits a person to act in an unethical way.
Finally, I think this solution would still begs the same question which was left unanswered in Zuckier’s account – why are the limits for the Machteret rules drawn in that specific way? why recognise human instinct, or flaw (as the case may be) to allow for the killing ofr an imminent attacker but not of a bystander. Surely the killing of a bystander may be explained by reference to the same instinct or flaw.
Dear Shlomit, I’ve only just seen your response to my comment, and though I realise that this symposium has finished – and, indeed the association is about to start a new symposium this week, I did want to respond, if only briefly.
First of all, the idea that killing (or at least aiming to disable)a rodef is not mandatory is an interesting suggestion. I’m no expert in the relevant source material here. It has always been presented to me as something of an obligation, but you’re right to ask this question. I’d be interested to hear if Shlomo can enlighten us on it.
I’m not sure I can respond adequately to the more pressing part of your comment. Perhaps I might be able to suggest that the distinction between justification and excuse, though clearly similar to the sort of distinction I was hoping to draw, isn’t identical to it.
To be sure: I too think that Jewish law aspires to provide us with ethical principles by which one ought to live. I too think that the law shouldn’t shy away from rules which are hard to follow, especially when those rules involve harm to another person. So perhaps I should simply re-frame my position and say, not that the law gives a person a right to kill in a machteret case, but that is recognises an exemption. But this doesn’t sit all that easily with the Talmudic text which almost seems to encourage the person to stand up and defend herself. And thus, I come back to the idea that perhaps the distinction I’m after isn’t identical to the distinction between excuse and justification after all.
And though I agree with you about the aspiration of Jewish law, I think that it is simultaneously addressed to different people, operating on different levels. The halakha sometimes mandates that certain people go beyond the letter of the law, which is almost paradoxical – because if it’s mandating such action, then it’s no longer beyond the letter of the law.
Nachmanides famously spoke of the possibility of being a rather detestable being without ever breaking any of the laws of the Torah, which is why, according to him, the Torah had to go out of its way to add an additional law, above and beyond the others, to be a decent human being.
This has led some, like Rabbi Aahron Licthenstein, to distinguish between halakha with a lower-case ‘h’, so to speak, and halakha with a higher-case ‘H’. The latter outstripping the former in terms of its ethical scope.
It might be that addressed to certain people, in a certain stage of their ethical evolution, it’s right to speak in terms of the Torah giving them a right to act in a less than ethically perfect way (which isn’t to licence unethical action, but merely less than perfectly ethical). But that, addressed to other people – those for whom it has become incumbent to go beyond the letter of the law – there would be no such right.
In short, I think that the aspirations of the halakha probably differ for different people at different times along their life journey.
Or something like that… but, safe to say, you gave me a lot to think about. This isn’t really an area of thought (either Jewish or secular) with which I can claim any real familiarity.