Shiur 09: Allocating National Resources
A Weekly Shiur In Halakhic Topics
Yeshivat Har Etzion
Shiur 09: ALLOCATING NATIONAL RESOURCES
Based on a Shiur by HaRav Barukh Gigi *
As we all know, issues relating to the running of a state were not studied in batei midrash for thousands of years. It is, therefore, very difficult to establish hard and fast rules on an issue like "the allocation of national resources." This notwithstanding, I shall attempt in this shiur to propose certain criteria and try to describe Halakha's general attitude on this topic. Of course, I won't be able to discuss details, but I will try to examine the topic in its broad outlines.
The difficulty in discussing this issue from a halakhic perspective seems to stem from the fact that our halakhic instincts tell us that the entire national budget should be allocated to matters of life and death (piku'ach nefesh, i.e., health, defense, and the like), and that all other matters (whether culture and sport, or support for yeshivot) should be pushed aside. It is clearly impossible, however, to run a country in this manner. We see then that the question under discussion is indeed complicated.
Let us emphasize once again that this question is not raised in the responsa literature, though without a doubt it rose during the period of Israel's monarchy. For example, we know that a king is permitted to wage an elective war despite the fact that human lives will be put in danger. We see then that national considerations differ from those applying to a private individual. Some have argued that the objective of an elective war is to glorify God's name in the world, and this is why it supercedes piku'ach nefesh, but the simple reading of Scripture suggests that kings went out to war for other objectives as well. Thus it follows that national considerations are indeed different than those of a private individual!
In this shiur I shall try to focus on three passages that deal with matters of public administration, from which I hope to draw one important conclusion.
A FIERY PIECE OF METAL IN THE PUBLIC DOMAIN
The Gemara in Shabbat 42a distinguishes between extinguishing a fiery piece of metal and extinguishing a burning piece of wood:
Is this to say that Shmuel agrees with Rabbi Shimon? But surely Shmuel said: One may extinguish a lump of fiery metal in the public domain, that it should not harm the public, but not a burning piece of wood Ravina said: As a corollary, a thorn in public ground may be carried away in stages of less than four cubits; and while in a karmelit even a great distance too [is permitted).
According to the Gemara, the concern that the public might be harmed by a fiery piece of metal sets aside the prohibition to move it. The Rishonim (ad loc.) disagree whether this concern for public safety sets aside Torah prohibitions as well. The Ramban relates to this question:
It may be asked: How do we permit a full-fledged labor on account of [potential] harm in a situation when there is no danger to life? Perhaps all harm to the public is considered like danger to life.
The Ramban implies that national considerations are indeed different than those of a private individual, for surely an individual is not permitted to violate a Torah prohibition so that he not suffer an injury.
The Rashba as well permits the violation of Shabbat law in order to prevent harm to the community. He, however, adds an important explanation:
It may be asked: How does Shmuel permit the Torah labor of trapping a snake on account of [potential] harm? It may be suggested that since it commonly causes injury and the public suffers injury from it, Shmuel considers it as a danger to life. For it is impossible for the community to protect itself, and even if this one protects himself, another person will not.
According to the Rashba, we permit the desecration of Shabbat not because of the injury suffered by the community, but because of a concern about mortal danger to an individual. According to the Rashba, there is no essential difference between an individual and a community, but only a technical difference: in a place where there are many individuals, there is greater concern about a mortal injury to a single individual.
It may perhaps be suggested that potential injury to the community sets aside a Torah prohibition, because injury to the community is equivalent to the death of an individual, and therefore we permit Torah prohibitions when such injury is threatened. This understanding, however, is very forced and unprecedented.
Another far more reasonable possibility is that it is the community's responsibility to make it possible for its members to enjoy safe passage through its streets. Therefore, when an obstacle lies in the middle of the street that is liable to harm the public, the potential injury to the welfare of the community permits the violation of Shabbat law. According to this suggestion, even if nobody will actually die as a result of the obstacle, it is permissible to desecrate Shabbat in order to allow the residents to conduct their lives in the public domain in a normal manner.
LAUNDRY USING THE TOWN'S WATER
The Tosefta in Bava Metzia (11:3) discusses a variety of issues relating to municipal administration, and brings the position of Rabbi Yose:
[Regarding] a well belonging to the residents of a town they and others, they come before others. Others and their animals, the lives of the other [people] come before their animals. Rabbi Yose says: Their animals come before the lives of the others Others and their laundry the lives of the other [people] come before their laundry. Rabbi Yose says: Their laundry comes before the lives of the others.
According to Rabbi Yose, using the town's water for the townspeople's laundry or animals takes precedence over the lives of the people living in neighboring towns!
All the Acharonim who deal with this Tosefta explain the words of Rabbi Yose in one of two ways:
1) The residents of the other town do not need water at the level of piku'ach nefesh (see Chazon Yechezkel, ad loc., R. Sh. Lieberman, and others).
2) The concern about laundry of which Rabbi Yose speaks is at the level of piku'ach nefesh (see Iggerot Moshe, Yoreh De'a, vol. I, no. 145).
These explanations notwithstanding, the plain sense of the Baraita is that according to Rabbi Yose, refraining from doing laundry poses far less danger than not drinking, but nevertheless, according to Rabbi Yose, the certain piku'ach nefesh of outsiders is set aside by the possible piku'ach nefesh of the community itself, even in the case of a far-fetched concern. Indeed, the Netziv inclines to this understanding in his commentary to the She'iltot (She'ilta 147):
The danger of not drinking can certainly not be compared to the danger to their animals and their laundry, for the danger of not drinking will clearly lead to death, whereas regarding their animals and their laundry, it is only possible that they will come to danger But nevertheless it is a case of possible danger to life The law is in accordance with Rabbi Yose that one must not enter a situation of possible danger to life for the sake of certain piku'ach nefesh of another person [Even though as an act of piety a person should endanger himself in order to save the life of another person], here in the case of the townspeople, it is inappropriate to act in a pious manner, and endanger minors, because they cannot waive their rights.
We can take this one step further and argue that uncertain piku'ach nefesh regarding the community turns into certain piku'ach nefesh, because we must consider the ramifications for the future, and the parameters of danger to life from a broader perspective, as explained by the Rashba above.
Alternatively, it may be suggested that Rabbi Yose's position is based on the fact that the parameters of piku'ach nefesh regarding a community are different than those regarding an individual. That is to say, on the community level, piku'ach nefesh refers not only to questions of life and death, but also to questions of quality of life. A community whose life is disrupted is, to a certain degree, regarded as dead. This understanding turns community needs into a real need of piku'ach nefesh that might even take precedence over saving the lives of individuals outside the community.
It is possible that this is precisely what the Gemara in Nedarim 80b means, when it derives Rabbi Yose's position from the verse: "And the cities shall they have to dwell in; and their open spaces shall be for their cattle, and for their goats, and for all their beasts" (Bamidbar 35:3). That is to say, laundry and animals are part of the definition of the "life" of a community.
Thus, we come back to what was suggested above regarding the fiery lump of metal in the public domain: anything that impairs the normal life of a community permits the violation of Shabbat law, even labors forbidden by Torah law!
THE LAW OF A NURSING WOMAN
It seems that we can take this even further. It can be argued that even the normal life of an individual should be considered as a significant factor in halakhic decision-making.
To prove this point, let us examine the words of the Rambam regarding a nursing woman (Hilkhot Ishut 21:11):
As long as a woman is nursing her child, the work [that she must do for her husband] is reduced and in addition to her food she is given wine and [other] things that are good for milk. If she was given food that is appropriate for her, and she craves to eat more or to eat other foods because of the cravings of her stomach, she may eat of her own [assets] as much as she desires. Her husband cannot object and say that she if she eats too much or if she eats a foul food, the child will die, because the pain of her body takes precedence.
According to the Rambam, preventing a woman's bodily distress takes precedence over the life of her child. Here too the Acharonim tend to explain that that the woman's bodily physical distress is liable to lead to her death. This, however, is not the plain sense of what the Rambam is saying. According to the simple reading of this text, the Rambam permits a person to refrain from saving another person's life because of bodily discomfort!
It might be suggested that according to the Rambam the obligation "not to stand on one's fellow's blood" only applies in a case of momentary and incidental mortal danger. But if a person will have to disrupt his life on a continuous basis and thus cause himself protracted distress, he is not obligated to concern himself with the other person's life.
The Rambam expresses a similar idea in his commentary to the first mishna in Pe'a:
They said here that [the mitzva of] performing acts of lovingkindness has no measure. That is to say, with respect to a person's physical contribution. But as for his monetary contribution, there is a limit, namely, a fifth of his assets. A person is not obligated to give more than a fifth of his assets other than as an act of piety.
And similarly in Hilkhot Arakhin ve-Charamin (8:13):
A person must never consecrate all of his assets, and one who does so violates the intention of Scripture, for it says: "from all that he has," and not "all that he has," as the Sages have explained. This is not piety, but rather folly, for he thereby destroys his own property and becomes dependent on others; compassion is not to be shown toward him. In reference to him and those like him the Sages said that a foolish pious man is among those who destroy the world. Rather, one who disperses him money on mitzvot must not disperse more than a fifth [of his assets] .
The Rambam's explanation as to why a person should not squander all his money on charity is that if he does so he himself will have to be supported by others. Perhaps here too the Rambam is expressing the view that if a certain action will undermine a person's fiscal stability and lead him to bankruptcy, he must refrain from that action even at the cost of forfeiting the mitzva of performing an act of lovingkindness. In other words, the ordinary halakhic criteria for giving priority do not apply in cases of drastic change in lifestyle!
The Mishna in Gittin (45a) states that "one must not ransom captives for more than their value." The Gemara (ad loc.) is in doubt whether this ruling stems from concern about unduly distressing the community, or from the fear of encouraging future abductions. The Ramban proves that the primary reason is the fear of future abductions. The Ran (on the Rif, 23a in Alfasi), however, thinks that the primary reason is the concern about distressing the community.
What is the foundation for the argument of distressing the community? Rashi (ad loc.) explains that one must not press a community and bring it to poverty in order to ransom captives:
Because it is distress of the community One must not press the community and bring it to poverty on account of these people.
It would seem that if indeed we are talking about a situation where the life of the captive is in danger, why shouldn't we bring the community to poverty in order to save him? Perhaps we may conclude from here that the factors of communal welfare and fiscal stability override piku'ach nefesh.
It may also be inferred from this passage that the fear of additional abductions sets aside the mitzva to save the life of the captive before us. In other words, communal piku'ach nefesh overrides individual piku'ach nefesh, even though we are dealing with certain piku'ach nefesh of the individual versus possible piku'ach nefesh of the community!
The Gemara in Gittin 58 tells of Rabbi Yehoshua ben Chananya who ransomed Rabbi Yishmael in his childhood for a high sum:
Rabbi Yehoshua ben Chananya once happened to go to the great city of Rome, and he was told there that there was in the prison a child with beautiful eyes and face and curly locks. He went and stood at the doorway of the prison and said: "Who gave Yaakov for a spoil and Israel to the robbers?" The child answered: "Is it not the Lord, He against whom we have sinned and in whose ways they would not walk, neither were they obedient unto his law." He said: I feel sure that this one will be a teacher in Israel. I swear that I will not budge from here before I ransom him, whatever price may be demanded. It is reported that he did not leave the spot before he had ransomed him at a high figure, nor did many days pass before he became a teacher in Israel. Who was he? He was Rabbi Yishmael ben Elisha.
The Tosafot (ad loc.) deal with the question how Rabbi Yehoshua could have ransomed Rabbi Yishmael for more than his value. They explain:
When life is in danger, we ransom captives for more than their value all the more so here where there is the death penalty. Or else, because of his great wisdom.
According to the Tosafot's first answer, when a captive's life is actually in danger, he is ransomed at any price. According to their second answer, a Torah scholar is ransomed at any price. According to this, it might be argued that on the community level there is room to relate also to more general considerations, e.g., the need for Torah scholars.
Two comments are in order:
1) In this shiur, I dealt both with prohibitions that a person violates in an active manner, e.g., Shabbat desecration, and with prohibitions that a person violates indirectly, e.g., a nursing woman who eats foods that she knows will have negative consequences for her child. It might be possible to distinguish between the direct and indirect violation of prohibitions, in light of the question of the level of communal concern.
2) The Gemara in Sanhedrin 75a teaches that it is better that a man who was overcome with a vehement passion for a particular woman should be allowed to die than that he be allowed to have relations with her. It might be inferred from here that the communal goal of preserving the sanctity of Jewish women also overrides piku'ach nefesh.
In summary, a state cannot allocate all of its resources to matters of piku'ach nefesh, because it is obligated to provide for all the needs of its citizens. How much to allocate to each need requires careful consideration, but this is not the forum in which to consider the matter.
(Translated by David Strauss)
* HaRav Gigi delivered this shiur during Chanuka 5768. The shiur was summarized by Udi Schwartz and edited by Shaul Bart. It was not reviewed by HaRav Gigi.