Menachem Mendel

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Not So Quickly…

I wasn’t planning to post on Noah Feldman’s article in the NY Times, so I am going to respond to one of his responders. Jeff Woolf at My Obiter Dicta brings a response by R. Shalom Carmy regarding one of Feldman’s comments, that of violating the Shabbat in order to save the live of a non-Jew. The problem which one encounters when discussing this issue is that, as noted by Jeff, it is part of the bread-and-butter of many anti-Semites, as any internet search which show. So, here are my comments.

R. Carmy writes that,

An honest understanding of the Halakha about saving a Gentile on Shabbat is grounded in the fact that not all mitsvot can be violated to save life. Idolatry, sexual offenses and murder may not be allowed even to save life, however this flies in the face of our utilitarian mentality. Shabbat has much in common with the so-called “big three.” [Note R. Shimon’s view in Yerushalmi that a bystander may intervene to prevent Shabbat violation even at the cost of the transgressor’s life.] For Jews Shabbat may be violated to save life, but only on the basis of a special limmud (inference)—“desecrate one Shabbat so that he may observe many Shabbatot.” Where this principle does not apply, Shabbat is inviolable.

The main source for the claim that “For Jews Shabbat may be violated to save life, but only on the basis of a special limmud (inference)—’desecrate one Shabbat so that he may observe many Shabbatot,'” is a midrash halachah from the Mechilta (Parshat Ki Tissa, Massechta de-Shabbata, chapter 1, p. 340-341, 343. See also Yoma 85a-b).

R. Nathan* says: Behold it says: “Wherefore the children of Israel shall keep the sabbath to observe the sabbath throughout their generations” (v. 16). This implies that we should disregard one Sabbath for the sake of saving the life of a person so that that person may be able to observe many Sabbaths. (Lauterbach ed. pp. 198-199).

The problem is that this very opinion is rejected in the Babylonian Talmud.  It is quoted elsewhere as an authoritative opinion (Shabbat 151b), and Gil Student has attempted to show that this is the central principle behind the laws of pikuah nefesh on Shabbat, but while this opinion may have been accepted by many rabbis, it is far from universally accepted.  One need only to look over a number of sources to see that for some rabbis this opinion was not accepted, and some even said that it was no more than rhetoric and not some overarching legal principle (see Responsa Hatam Sofer, OH par. 83; Responsa Tziz Eliezer, vol. VIII, par. 15, Kunteres Meshivat Nafesh chap. 3; Biur Halachah on OH par. 329 s.v. Elah lefi sha’ah).  Also R. Carmy says,

In any event Feldman presumably knows very well that his high school teacher’s remark is not representative of grown-up halakhic thought, and he knows even better that it is not a guide to the practice of Orthodox Jewish doctors.

I am not sure what “grown-up halakhic thought” is, but two comments. While it is true that most modern poskim do say that a religious Jew should violate the Shabbat in order to save the life of a non-Jew, some restrict it to only cases where one violates rabbinic prohibitions, and none other than the Mishnah Berurah has written some very strong words against it (MB on OH 330, sub. par. 8).  So far the written evidence.  As to the unwritten evidence, I know of a well-respected rabbi in the NYC area who, at least at one time, instructed his students who were doctors to try and avoid situations in which they would violate the Shabbat in order to administer to non-Jewish patients. They even went so far as to ask a friend of mine to remove his kippah when he worked on Shabbat so people wouldn’t think that it was permissible.  Don’t nudge me about who this rabbi is, you don’t have to believe me, but let us just say that my friend has to this day refused to daven in the above mentioned rabbi’s shul.  Can you imagine what would happen if a priest taught in his seminary that Catholic doctors should try and avoid situations in which they would have to save the life of people who don’t accept Jesus as their savior?  OK, they shouldn’t act that way every day, but maybe just limit it to Christian holy days.

Lastly Jeff has written that,

Jewish Law realized that the question of treating a non-Jew on Shabbat had to be addressed and allowed. Halakhah came up איבה. Yes, in marketing terms it’s terrible. That, however, is not the point. The genuine, Jewish moral impulse did find a cogent, principled legal category within which to function. Halakhah doesn’t operate in philosophical categories, it operates in legal categories.

I used to agree with Jeff that איבה, “enmity”, must be understand within the limits of legal reasoning, and that those searching for overarching moral statements are looking for language and terminology which was not used.  I have come to disagree with this for two reasons.  The first is that my examination of many sources which discuss the question of איבה has convinced me that some, and I am not ready to guess whether it the majority or minority, only permit the violation of Shabbat not because of some “Jewish moral impulse”, but rather they just felt that it wasn’t conducive to good relations.  If they could have gotten out of it, they would have.  In addition, we now know that the Meiri in his far-reaching redefinition of the relations of Jews and non-Jews, includes the topic of violating the Shabbat to save the life of a non-Jew as one of the categories which must be redefined in the light of the changed moral framework within which non-Jews now live (see Moshe Halbertal’s book, Bein Torah le-Hochmah, p. 89).  My intention is not to judge the generations before us by the morals and expectations of today’s world, but just to be honest about what Jewish tradition teaches, with the understanding that their world was not our’s, yet to have an expectation that those in our world would behave and teach differently.

*In the Babylonian Talmud this is brought in the name of R. Simon b. Menasiah.

15 Responses to “Not So Quickly…”

  1. 1
    Menachem Butler:

    Have you seen David Berger’s “Jews, Gentiles, and the Modern Egalitarian Ethos: Some Tentative Thoughts,” ‘Formulating Responses in an Egalitarian Age,’ ed., Marc D. Stern (Rowman & Littlefield, 2005), where he discusses some of these issues??

  2. 2
    Pit:

    I have seen it and the book is sitting in my carrel waiting to be read by me. There were a number of other interesting articles in that book.

  3. 3
    avakesh:

    I don’t agree that it was discarded – see http://www.avakesh.com/2007/03/can_one_resurre.html

  4. 4
    Jeffrey R. Woolf:

    Thank you for the respectful discussion. I actually added a comment after the posting, which you might find pertinent.

    I am not denying that different halakhists have either expansive or restrictive attitudes on this issue (much as Reb Haim and the Hafetz Hayyim went to war over פחות פחות מכשיעור). It is also questionable whether we should expect the same type of egalitarian sentiments that pass today as common coin, in society’s wherein other value structures obtain. (Witness the morphology of the word tolerance.)

  5. 5
    Menachem Mendel:

    Avakesh,

    I intended to say that at least in Yoma that opinion is rejected. As you pointed out in your post, and Gil in his article, it is seemingly resurrected (to borrow your term) in other places.

    Jeff,

    I agree with you regarding “egalitarian sentiments” of today, and that’s why I wrote,

    “My intention is not to judge the generations before us by the morals and expectations of today’s world”.

  6. 6
    Joe in Australia:

    With respect, I think that it doesn’t matter which particular bit of legal reasoning is used to demonstrate that one may save the lives of Jews on Shabbos. The point is that it isn’t self-evident that one may save the lives of Jews. For this reason the rabbis sought a derash or other means of halachic proof to permit it. If the proof used is inapplicable to non-Jews then we need a second proof that we may save their lives, too. But neither Jews nor non-Jews are under a particular disablity; neither is assumed to have rights that transcend Shabbos.

  7. 7
    Menachem Mendel:

    You are correct in that it isn’t clear that Shabbat may be violated to save the life of anyone, Jew or non-Jew. From the midrash halakhah it seems clear that by then it was already accepted that one violates shabbat to save the life of a Jew and, at least in my opinion, all of the prooftexts that are brought show different attempts to justify this opinion. I do think that there is a difference between bringing a scriptural proof for an already accepted teaching and what I would call a contextual argument such as eivah.

  8. 8
    andy:

    I recall reading a letter in the journal ‘Ohr Yisrael’ where the writer took issue with someone who had attempted to show that traditional Judaism holds that women and men are of equal worth (I have not seen the afore-mentioned collection of essays). The writer maintained (quite rightly) that traditional Judaism does not believe that at all. I would not, however, tell my wife this (smiley).

  9. 9
    Reb Yudel:

    Menachem,

    Thank you for your timely look at the halachic sources. However, I think you’ve misconstrued R’ Carmy as advocating the worst sort of immoral religious fundamentalism. In fact, I think R’ Carmy is making an argument — albeit esoteric, in the Straussian sense — on behalf of what you’re advocating, that is, the ethical notion of a meta-halachic ethic as described most thoroughly by Eliezer Berkovits. That’s a rather large claim, I know, particularly for this small comment box; so I refer you to my blog where I spell this out in detail. I look forward to your comments there.

  10. 10
    Jim:

    Joe in Australia misses a point by saying that a proof is “needed” to save lives. In the mind of the rabbis they were not creatively constructing halacha but discovering the truth of what God revealed to Moses on Sinai. The fact that this truth considers shabbos to be something that makes jews superhuman and absence of shabbos to be something that makes gentiles subhuman is the crux of the problem. The problem is not that “man was made for shabbos and not shabbos was made for man” but that “jew are called adam and non-jews are not called adam”

  11. 11
    Jim:

    To be more precise: the offensiveness stems from the very system which the rabbis accepted as absolute not from the way they maneuvered around it.

  12. 12
    andy:

    A couple of years ago in Lakewood, a yeshiva guy witnessed a shooting on a Friday night and by the time someone called for help the victim was dead. The yg apparently was held by the police for a time because he did not call in the crime. His excuse was that it was shabbos! Obviously, if he had no intention of dialing 911 then he should gotten the hell out of there before the cops arrived.

  13. 13
    Reb Yudel:

    Jim,

    Of course you are right. The question is, are non-Jews considered Adam?

    As I show in my above-reference essay, Rav Soloveitchik was quite clear on that topic: They are.

    Given the choice, therefore, between a positivist conception of a static halacha, or of an ethically-motivated, evolving halacha, it’s quite clear that the latter approach, as detailed by R’ Eliezer Berkovits, is of course correct.

    As I understand R’ Carmy’s essay, it is quite clear that he is finally firmly advocating the Berkovits position (contra, for example, R’ Herschel Schachter.) Given the fundamental role of human reasoning and creativity in the Halachic process — as enunciated so eloquently by the Rav in Ish HaHalacha and elsewhere — R’ Carmy wisely chose to write in a style which forces ourselves to reason to the correct conclusion, rather than relying on his authority — because the Halachic system is one that relies as much on what the Rav calls Human grandeur as it does on individual humility.

  14. 14
    Joe in Australia:

    I agree that the rabbis did not believe they were constructing halacha. In fact, I think it’s obvious that they were simply recording halacha – everybody knew that Shabbos may be desecrated to save (Jewish) lives. It’s a matter of practical halacha with which most people are familiar. Their problem was justifying the practice in light of the logic that argues against it.

    As for the bit about “subhuman gentiles”, I suspect that you are importing another agenda into this debate, especially when you invoke a line like “jew are called adam and non-jews are not called adam”. If you were familiar with the source you would know that this is another bit of technical legalese, with no relevance to the topic at hand.

  15. 15
    null:

    Rabbi David M. Feldman in his book book, “Where There’s Life There’s Life” (Yashar Books, Brooklyn, N.Y.) see http://www.jstandard.com/articles/3064/1/The-imperative-to-heal

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