The Israel Koschitzky Virtual Beit Midrash

A WEEKLY SHIUR IN HALAKHIC TOPICS
Yeshivat Har Etzion

Translated and adapted by Rav Eliezer Kwass

The halakha emphasizes the importance of saving human lives. We are commanded both to rescue another from death, and to preserve our own lives. What to do when these two values tragically conflict with each other is the subject of a classic dispute between Rabbi Akiva and Ben Petura:

A group of Acharonim explain that Ben Petura and Rabbi Akiva argue about whether a person must give up his life in order to save his friend from death.

Ben Petura rules that one must give up his life, and therefore concluded that in the above case - where each is obligated to save his friend - both must drink the remaining water. If the obligation to share the water is only upon one of them - for instance, in the case of a child and an adult - the adult would actually have to give over the water to the child (see the Minchat Chinukh #296 and Igrot Moshe YD 145).

Rabbi Akiva rejects this principle and believes that there is no obligation for a person to save another's life at the expense of his own.

At first glance, the way the gemara presents the dispute implies that although Rabbi Akiva might have been open to Ben Petura's logic, the verse forced him to say, "Your life takes precedence." However, in the parallel source, Torat Kohanim on the verse, Ben Petura also bases his position on the verse. If so, the two are not arguing about WHETHER to use this verse as a source, but about HOW to interpret it. Their argument, then, is a logical one, and in the following explanation, we will attempt to clarify the difference in the positions of R. Akiva and Ben Petura.

Defending Ben Petura's approach is a challenge; why should one have to give up his own life in order to save another's? Of course, his seems to be the more altruistic of the two options. Ben Petura's opinion, "better ... than to see his friend die," seems to hold the moral edge over Rabbi Akiva's more self-centered sounding "one's own life takes precedence." On the other hand, how can Ben Petura ignore the moral and halakhic directive to protect one's own life? The verse clearly states, "You should watch over your selves ("nafshoteikhem") very carefully" (Devarim 4:15)?! How does this mitzva fit into Ben Petura's approach?

There is, however, a well-known precedent to Ben Petura's approach. One whose only way of saving his life is through killing another is told by the halakha, "Who says that your blood is redder? ("Mai chazit ...") Maybe your friend's blood is redder?" (Sanhedrin 74a) The value and mitzva of saving one's life ("pikuach nefesh") does not stand in the face of the prohibition of murder. Therefore, in a case where either he or his friend will end up being killed and at least one life will be lost, Rashi explains "the King's decree forbidding murder should not be pushed aside." (Rashi on Sanhedrin 74a) Although, this seems to be a precedent for Ben Petura's position, our problem still remains. The same difficulty - what happened to the halakhic imperative to protect oneself? - arises with the command to give up one's life to save another's. Does not the King also command us to take care of the bodies that He gave us? Why protect my friend at my expense?

TOSAFOT'S APPROACH

The Tosafot (Sanhedrin 74b, s.v. Esther) take an approach to saving lives that can answer the question, "Who says your blood is redder?" They believe that in certain situations one can save his life through killing. For example, we learn in Sanhedrin that if a person is threatened with death unless he allows himself to be thrown on a baby, he may choose to live. The rule does not apply to PASSIVE killing. "He can say, 'On the contrary, who says that HIS blood is redder? Maybe MY blood is redder,' since he does not actively do anything. It seems that the Tosafot did not understand the rule as conclusively determining that my FRIEND's blood is redder. Rather, it should be taken literally - we do not know whose blood is redder. Therefore, the best course of action is inaction, "sheiv ve-al ta'aseh." To kill actively to save one's life is prohibited, for one has thereby decided "whose blood is redder." However, one is not obligated to object when forced to be used passively to cause the death of an other.

Through Tosafot's approach we can explain why one would be able to protect his own life even if as a result another life is threatened, as long as he does not actively commit murder. On the other hand, the problem of Ben Petura is still unsolved because he also objects to leaving the water in one's own hands - passive behavior that allows the other's death. According to the Tosafot's theory, one can refrain from making an active decision about "whose blood is redder" even if it means the death of an other. (I.e., in this case holding on to the water.)

Furthermore, Rav Chaim Ha-levi (Chidushei Harav Chaim Ha-levi al Ha-rambam - Hilkhot Yesodei Ha-torah; other Acharonim agree) proves that the Rambam argues with the Tosafot and rules that passive murder is even prohibited to save a life. According to the Rambam we must find another explanation for the principle "Who says your blood is redder?"

"MURDER" VS. "NOT SAVING"

In addition to Tosafot and Ben Petura, there is another possible explanation for this principle: every one must protect his own life, there can be two opposing options one is confronted with and has to decide between - killing another and letting himself die. Murder is much more severe than sitting by and letting a person die. Perhaps, even passive murder (letting oneself be thrown on a child) is more severe than letting oneself be killed [and we can also explain the principle of "Whose blood is redder?" according to Rav Chaim's reading of the Rambam.] According to this approach, we do not choose inaction as a result of our uncertainty, rather we have decided that murder is worse than not saving a person. Therefore, we avoid MURDERING another even though it means NOT SAVING oneself.

The Acharonim connect this distinction - between killing and not saving - to the argument between Tosafot and the Rambam. Rav Chaim uses this distinction in order to support the Rambam's position against the Tosafot. Ben Petura taught that is forbidden to let another die, even PASSIVELY, in order to save oneself. Even Rabbi Akiva's opinion on that, "Your life comes first," only applies if it means not giving the water to the other person (= not saving him) - and even for that he needed a special prooftext. Furthermore, according to the Rambam's approach, Rabbi Akiva's opinion even forbids passive murder.

The Chazon Ish (in his glosses to Rav Chaim's commentary on the Rambam) completely rejects the distinction between murder and not saving. He views not saving another as merely passive murder, for it also brings about the loss of another's life. That makes Rav Chaim's explanation of the Rambam unviable and would force the Rambam to agree with the Tosafot's opinion that "Mai Chazit ..." demands inaction.

If we accept Rav Chaim's distinction between murder and not-saving, we can explain "Mai Chazit ..." However, the difficulty inherent in Ben Petura's approach remains: why must one sacrifice one's life even when confronted with a choice between not saving oneself and NOT SAVING another?

MAI CHAZIT AS KIDDUSH HASHEM

We have presetwo approaches to understanding the principle "Mai chazit ..." Each approach accepts the assumption that there is a conflict between the prohibition of murder and another biblical command, protecting one's own life. Both opinions try to explain why the halakha prefers saving another's life before saving one's own. According to Tosafot, one must sit back and NOT DECIDE whose life to save. This results in one's own life being lost, not because the halakha prefers another's life, but because we do not know whose life is preferred. According to the Rav Chaim - Rambam approach, the mitzva of protecting one's own life must be ignored if it involves active murder; because it is a worse crime than passive inaction that results in another's death. It is better not to save oneself than to murder another.

All of the above has been an attempt to justify ignoring the command to protect one's own life. We assume that such a command should have applied here but is either overruled by the prohibition of murder (Rav Chaim - Rambam). Furthermore, according to Tosafot, murder cannot be acted upon because it would involve taking a divine decision into human hands. However, Rashi's comments in Sanhedrin imply that the obligation to save one's own life DOES NOT EXIST AT ALL if he is given the choice between sacrificing his own life and taking the life of another. He writes, "The King's word cannot be pushed aside, for he commanded against murder." It sounds as if there are no other words of the King that this potential murderer encounters. Additionally, there does not even seem to be any mitzva that is being pushed aside when one gives up his life in order to avoid murdering another. Once again, the absence of any reference to protecting one's life is disturbing. I am convinced that a close look at the Rambam's Hilkhot Yesodei Ha-torah will lead to a similar conclusion and will not only explain "Mai Chazit ...," but Ben Petura's difficult approach as well. In order to explain Rashi and the Rambam we will have to more thoroughly understand why pikuach nefesh based on "Ve-chai bahem" ("live by the mitzvot" and do not die by them) does not apply to murder as it does to other mitzvot.

For all three of the mitzvot that are not pushed aside to save one's life - idolatry, adultery and murder - the gemara gives a different reason why we ignore "Ve-chai bahem". For murder there is a logical argument, "Who says your blood is redder ...?;" for idolatry and adultery the gemara brings a proof from the Chumash. The gemara proves why "Ve-chai bahem" does not apply to these three, but does not address what mitzva demands sacrificing one's life. The starting assumption of the gemara is that one needs to sacrifice his life rather than transgress ANY mitzva. The verse "Ve-chai bahem" teaches that, on the contrary, preserving one's life is of cardinal importance. Where "Ve-chai bahem" is not applicable, it is natural that by default one must sacrifice his life. Thus, for the three sins where "Ve-chai bahem" does not apply we fall back on the original requirement to sacrifice one's life. The reason not to murder is derived from the original prohibition "Thou shalt not murder."

One gets a different picture from the Rambam's Mishneh Torah (Hilkhot Yesodei Ha-torah 5:1):

The Rambam explicitly writes that the obligation to give up one's life rather than transgress these three sins stems from the mitzva of KIDDUSH HASHEM, the sanctifying of God's Name. It follows that the Rambam (in Yesodei Ha-torah 5:5) rules that one who, against the Torah's command, murders and does not give up his life does not get the death penalty, for he did not sin willfully, rather he was "anuss." If so, the exclusive source for choosing death rather than to murder must be the mitzva of kiddush Hashem.

It is now clear that if a Jew is called upon to give up his own life rather than murder, the obligation to protect his own life is not pushed aside but non-existent. The obligation to protect one's life applies to normal daily living, but obviously not to situations where we are expressly commanded to give up our lives. The essence of the obligation of kiddush Hashem involves NOT preserving one's life, rather, giving it up for the higher cause - sanctifying God's Holy Name. "Ve-chai bahem" absolves one from the mitzva of kiddush Hashem with regards to other mitzvot. "Ve-chai bahem" does not apply in a case of murder because a life will be lost in any case, and therefore the obligation of kiddush Hashem applies. There is no conflicting value that stands up against murder and Rashi's words can be taken at face value; "The King's words 'Do not murder' are the exclusive words relevant to this situation and cannot be pushed aside.

This explanation also finally enables us to understand Ben Petura's approach, that there is an obligation to save another that is dying of thirst. Can one absolve himself based on "Ve-chai bahem?" Certainly not, because "Ve-chai bahem" does not apply where one person will inevitably die, as in the case of the Jew threatened with death unless he murders. The same logic that underlies the gemara's decision (according to Rashi and the Rambam) when it applies "Mai chazit ..." should apply here also - where "Ve-chai bahem" does not apply, the mitzva of kiddush Hashem should. In such situations there is naturally no obligation to protect one's life; the whole essence of kiddush Hashem makes that commandment totally inapplicable.

"MAI CHAZIT" ACCORDING TO RABBI AKIVA

If this explanation of the Rambam's and Rashi's opinion about "Mai chazit" is accurate, Rabbi Akiva's conclusion about the two men walking in the desert is difficult. If "Ve-chai bahem" does not apply to saving a life when one life will certainly be lost, how can he rule that the man with the canteen should save his own life? The answer is that the Torah expressly tells us otherwise by saying, "Ve-chai achikha imakh," - your life takes precedence. Rabbi Akiva agrees that through the Torah's approach to kiddush Hashem and "Ve-chai bahem" it is possible to agree with Ben Petura's conclusion, but R. Akiva learns from Bava Metzia that one's life takes precedence over another's and therefore the line of logic that Ben Petura uses is incorrect.

Perhaps we can also understand the logical basis of Rabbi Akiva's position. In his opinion, when two men are walking through the desert with water enough for only one, there is NO OBLIGATION for one to save his friend. If saving one person's life indirectly brings about the death of another (in this scenario, the person himself), the mitzva of saving another does not apply, because it wouldn't actually be "hatzala" - saving a life. If so, there is nothing to sacrifice one's life for. The passage in Sanhedrin, in contrast, was referring to murder. In this case, murder cannot be pushed aside even if it enables one to save his own life. Therefore, in order to sanctify the name of God one still refrains from murder.

Based on this approach, we come to a fourth explanation of "Mai Chazit ..." It is forbidden to kill another in order to save oneself, because there is no obligation to save a person when it brings about another's death. This example has parallels to the case of the two men walking in the desert. Giving away the canteen of water will save the other man's life, but it will bring about the death of the owner of the canteen and is therefore not obligatory. Killing the second man will save the killer's life but will bring aboutthe death of the victim and is still forbidden. Rashi's comment, that the only halakhic concern in this case is the prohibition against murder (not the obligation to save one's own life) now also makes sense since there is no obligation to save another when it brings about the death of another. This is Rabbi Akiva's view on when the mitzva of saving a life applies. Ben Petura, on the other hand, argues with this whole approach, asserting that the obligation to save a life still applies.

SUMMARY

In summary, four approaches concerning the law of saving a life at the expense of another emerge out of our discussion:

1. Tosafot (Chazon Ish) - One must remain inactive (sheiv ve-al ta'aseh). Murder, "Lo tirtzach," clashes with preserving life, "Ve-chai bahem".

2. Rav Chaim - The prohibition against murder is more stringent than the mitzva to save a life. "Lo tirtzach" is more stringent than "Ve-chai bahem."

3. The Rambam (perhaps also Rashi) - One is obligated to be killed based on kiddush Hashem, sanctifying God's Name. The mitzva of saving a life does not apply when there is a mitzva of kiddush Hashem.

4. Rashi (possibly) - One must let himself be killed in order to avoid murder. There is no counter-issue of saving a life because saving a life is not obligatory when it involves another's death.

Rabbi Akiva's approach might be based on 1, 2, or 4.

Ben Petura can only be based on 3.

adapted from,

Daf Kesher #234, Sivan 5750, vol. 3, pp.62-65.

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