The Source for the Law that Pikuach Nefesh Sets Aside the Laws of Shabbat

 

I. Introduction

The previous two shiurim discussed the meaning of the law that pikuach nefesh sets aside (or perhaps overrides) all the commandments of the Torah, and dealt extensively with the Rambam's remarks regarding the centrality of the midrashic exposition, "'he shall live by them' – and not die by them." This exposition is one of a series of expositions that Chazal suggested as the source for the law, which are presented in detail in the Gemara (Yoma 85a-b) and with minor changes also in the Tosefta (Shabbat chapter 15, halakhot 15-16), and in Mekhilta de-Rabbi Yishmael (Parashat Ki-Tisa 1). The Gemara states, after presenting the opinions of various Tannaim:

Rav Yehuda said in the name of Shmuel: If I had been there, I would have told them something better than what they said: "He shall live by them," but he shall not die because of them. Rava said: [The expositions] of all of them are subject to refutation, except that of Shmuel, which cannot be refuted. (Yoma 85b).

Shmuel’s exposition is the only one which cannot be refuted, and the Gemara even goes on to heap special praise on it.[1] Special emphasis is given to the fact that from this exposition we learn that not only a definite case of danger but even uncertain pikuach nefesh will set aside the laws of Shabbat.

In the wake of the Gemara's determination, Rabbeinu Chananel (Yoma ad loc.), the Rif (5a in Alfasi), and the Rosh (Yoma 8,16) all recorded only Shmuel's exposition, and as we have seen, the Rambam too codified it as law and gave it twofold importance – both in Hilkhot Shabbat (2:3), as the source for the law that pikuach nefesh sets aside the laws of Shabbat, and in Hilkhot Yesodei ha-Torah (5:1), as the source of the prohibition to suffer martyrdom rather than violate a commandment that does not require it.[2]

However, the fact that only the last midrashic exposition cannot be refuted does not necessarily imply an absolute rejection of the previous expositions, as the Meiri writes (ad loc.):

The sacrificial service and circumcision at the proper time sets aside Shabbat. Likewise, pikuach nefesh sets aside Shabbat law. By way of commenting, they said: "'And the children of Israel shall keep the Shabbat' – profane for his sake one Shabbat so that he may keep many Shabbatot. And similarly they said: "'For it is holy to you' – it [Shabbat] is committed to your hands, not you to its hands." And in general: "'He shall live by them,' but he shall not die because of them." (Beit ha-Bechira, Yoma 85b)

The Meiri shares the understanding that the exposition of "he shall live by them" is the primary source, but he also notes that the other expositions are "by way of commenting." Both this shiur and the next will be dedicated to an examination of these "comments," i.e., to the other midrashic expositions in the Talmudic passage. Even though they can all be refuted, nevertheless, they too convey important and fundamental principles regarding the laws of pikuach nefesh.

II. Is a Source Required to Set Aside Shabbat?

The Talmudic Passage

The first "comment" relates to the very derivation from Scriptural verses, and the question of whether a source is even required to teach that pikuach nefesh sets aside Shabbat. As background for this discussion, here are all of the midrashic expositions in the passage in full:

Rabbi Yishmael, Rabbi Akiva, and Rabbi Elazar ben Azarya were once on a journey, with Levi ha-Saddar[3] and Rabbi Yishmael son of Rabbi Elazar ben Azarya following them. This question was asked of them: From where do we know that pikuach nefesh sets aside Shabbat?

Rabbi Yishmael answered and said: "If a thief be found breaking in" (Shemot 22:1) – If in the case of this one, where it is doubtful whether he has come to take money or life, and [although] the shedding of blood pollutes the land and causes the Shekhina to depart from Israel, yet it is lawful to save oneself at the cost of [the thief’s] life – how much more may one suspend [the laws of] Shabbat to save human life!

Rabbi Akiva answered and said: "If a man come presumptuously upon his neighbor [to kill him…], you shall take him from My altar, that he may die" (Shemot 21:14) – “from My altar” [if he is a priest about to perform the service], but not “down from upon My altar” [if he has already begun the service; in that case, one waits until he finishes]; and Rabba bar Bar Chana said in the name of Rabbi Yochanan: That was taught only to kill [i.e., to execute the priest for murder], but to save a life [such as if the priest can testify to an accused murderer’s innocence, he is taken] even down from upon the altar. And if in the case of this one, where it is doubtful whether there is any substance in his words [testimony] or not, and [although] the Temple service itself suspends Shabbat [yet the service is interrupted to save a life], how much more may one suspend [the laws of] Shabbat to save human life!

Rabbi Elazar answered and said: If circumcision, which [involves] only one of the two hundred and forty-eight members of the human body, suspends Shabbat, how much more shall [the saving of] the whole body suspend Shabbat!

Rabbi Yose son of Rabbi Yehuda said: "you shall keep My Shabbatot" (Shemot 31:13) – can it mean under all circumstances? Therefore the text reads: "Only (akh)" – a portion.

Rabbi Yonatan ben Yosef said: "For it is holy to you" (ibid. 14) – i.e., it [Shabbat] is committed to your hands, not you to its hands.

Rabbi Shimon ben Menasya said: "And the children of Israel shall keep the Shabbat" (ibid. 16) – the Torah said: Profane for his sake one Shabbat, so that he may keep many Shabbatot.

Rav Yehuda said in the name of Shmuel: If I had been there, I would have told them something better than what they said: "He shall live by them," but he shall not die because of them.

Rava said: [The expositions] of all of are subject to refutation, except that of Shmuel, which cannot be refuted. (Yoma 85a-b)

The Gemara offers seven different sources for the law that pikuach nefesh set aside Shabbat. However, even before examining the different opinions, there is room to ask: Is a source even necessary? Aren't the principles reflected by this law – as discussed in the previous shiurim, regarding the preciousness of the lives of Israel to God, and regarding the mercy, kindness, and peace underlying the Torah’s laws – obvious and clear from the Bible? There are indeed those who argue that, in fact, we are dealing with an extremely novel law, that would have been impossible even to suggest if it were not written explicitly in the Torah.

The Rosh: The Law of Pikuach Nefesh Follows from Logical Reasoning

However, we also find Rishonim who understood the law of pikuach nefesh as clear and obvious from logical reasoning. Thus writes the Rosh:

It may be argued that by logical reasoning [alone] and without a verse, a person is not obligated to sacrifice his life, and the verse, "he shall live by them," is only necessary so that we not learn about the other commandments from the cases of a murderer and of a betrothed woman, regarding which one must allow himself to be killed, even in private, rather than transgress the prohibition. (Tosafot ha-Rosh, Sanhedrin 74a, s.v. ben noach; and a similar comment in the regular Tosafot there)

According to the Rosh, the rationale of "he shall live by them" is self-evident; it is only because there are certain prohibitions for which one must sacrifice his life that a source was necessary, to delineate the matter and establish that sacrificing one's life is required only with regard to three severe prohibitions.

The Rosh’s position, that the law of pikuach nefesh is clear in itself from logical reasoning, seems to also follow from an earlier passage in Yoma, which asserts simply and without a source that "there is nothing that can stand before [the duty of] saving life" (Yoma 82a), and only afterwards offers sources for the exceptional cases – that is, for the three severe prohibitions that do indeed stand before the duty of saving life. The basic principle that nothing can stand before pikuach nefesh does not require a source.

Arguments from Acharonim that a Special Source is Required to Set Aside Shabbat

However, things are not that simple: Although the Rosh argues that there is no need for a source for the fundamental law of pikuach nefesh, and the Gemara in Yoma 82a implies the same, this seems to contradict the fact that the passage in Yoma 85 takes the trouble to propose seven possible Torah sources for the law that pikuach nefesh sets aside the laws of Shabbat. The Tzelach was sensitive to this difficulty, and suggested a distinction between the general law of pikuach nefesh and the law that pikuach nefesh sets aside Shabbat specifically:

It seems strange that all the Tannaim abandoned the explicit verse, "And he shall live by them," and forced the matter with a kal va-chomer argument! The reason seems to be that the verse in Parashat Acharei Mot states: "You shall therefore keep My statutes, and My ordinances, which if a man do, he shall live by them: I am the Lord." According to this, we can say that all these Tannaim – who learn that pikuach nefesh sets aside Shabbat from a kal va-chomer argument and reject the midrashic exposition brought by Shmuel – maintain that one can only learn from "he shall live by them" about the commandments that were given at Sinai, that they were given to them with the stipulation of "he shall live by them." But regarding Shabbat, which was given to them in Mara before it was stated "he shall live by them," one can say that Shabbat is not set aside by pikuach nefesh. Even though Shabbat was [also] taught at Sinai, nevertheless the prohibition of Shabbat that was stated at Mara was without any stipulation. Therefore, they learn by way of a kal va-chomer argument and by logical reasoning that one is not required to forfeit one's life in order to fulfill the mitzva. (Tzelach, Yoma 85b)

Shabbat is special in that it was commanded even before the Torah was given at Sinai, and therefore it stands – to a certain extent – above the other commandments in the Torah. Accordingly, there was reason to say that pikuach nefesh sets aside other commandments but does not set aside Shabbat; therefore, an independent source was required for this. But the general law of pikuach nefesh is in fact clear from logical reasoning.

Responsa Tzitz Eliezer (vol. 15, no. 1) takes a similar approach, pointing out the uniqueness of Shabbat – that anyone who desecrates it is considered like someone who rejects the entire Torah, and that its severity is like the severity of idolatry.[4] Therefore, it is indeed clear and obvious based on logical reasoning that pikuach nefesh overrides most of the Torah’s commandments (and thus there is no need for a source); however, since there are three severe commandments that are not set aside by pikuach nefesh, there was reason to say that Shabbat as well belongs to this more severe category. This is why the Gemara explicitly asks: "From where do we know that pikuach nefesh sets aside Shabbat?" and does not ask a more general question, about setting aside other commandments.[5]

The Historical Context

A different answer to the problem, following the methodology of modern Talmudic research, was offered by Rabbi Ohad Fixler.[6] According to him, the question that was posed to these great Tannaim in the generation after the destruction of the Temple, when they were "on a journey," expresses the polemic with Second Temple sects that we discussed in the previous shiur. These sects not only denied that pikuach nefesh sets aside the laws of Shabbat, but also argued about other simple laws, e.g., that circumcision sets aside the laws of Shabbat, and even that the sacrificial service sets aside the laws of Shabbat. It was clear to Chazal that pikuach nefesh sets aside Shabbat, but they wished to propose proofs against the Second Temple sects and to include in them the full debate regarding actions that set aside Shabbat. Rabbi Fixler spells out various proofs for his claim, but I will limit myself to one source which I believe offers a clear example. The fourth exposition in the passage in Yoma 85 proposes a derivation from the word "only" in the phrase "only you shall keep My Shabbatot," which indicates a portion. This exposition is also brought in the Tosefta, with slightly different wording, not as the fourth exposition but as the one that opens the discussion:

Rabbi Yose said: From where [do we derive] that pikuach nefesh sets aside Shabbat? As it is stated: "You shall keep my Shabbatot." You might say [even to disallow] circumcision, the sacrificial service and pikuach nefesh. Therefore, the verse states: "Only," which indicates a portion. There are times you keep Shabbat, and there are times you do not keep Shabbat. (Tosefta Shabbat 15:16). 

It is evident that Rabbi Yose in the Tosefta wishes to address at once the entirety of halakhot that set aside the laws of Shabbat – circumcision, the sacrificial service, and pikuach nefesh – and to clarify that the law that pikuach nefesh sets aside Shabbat is not a unique phenomenon, but is part of a broader system of mitzvot that must be observed even on Shabbat.

Another Look

To conclude this section, I will note that it is possible that the answer to our question regarding the need for a source is simpler. It may have been clear to the Sages that pikuach nefesh sets aside all the commandments in the Torah, including Shabbat, but they nevertheless wished to anchor this halakha in expositions and derivations that indicate the nature of the law.[7] In other words, the basic law that pikuach nefesh sets aside all the commandments in the Torah was clear and simple based on logical reasoning, but, similar to the Meiri’s comment above, the additional derivations shed light on additional principles regarding pikuach nefesh.

If so, what do these expositions teach? The answer is clear with regard to the one based on "and he shall live by them," as we have discussed in previous shiurim the moral significance of this exposition. Now, let us turn to some of the other expositions, and try to understand the explanations and laws that the Rishonim and Acharonim derived from them.

III. Hutra (Permitted) or Dechuya (Set Aside)

One of the fundamental questions regarding the law of pikuach nefesh is whether we are dealing with a situation of hutra, "permitted," or dechuya, "set aside." I will devote a separate shiur to this issue, and simply note for now that it is rooted in the laws of communal sacrifices that may be sacrificed in a state of ritual impurity. One practical difference between the two possibilities is the question of how much effort should be made to avoid offering a sacrifice in a state of impurity, or doing a prohibited act on Shabbat for the purpose of saving a life. According to many authorities, the question of whether or not it is preferable to ask a non-Jew to treat a patient in danger on Shabbat depends on the question of whether the prohibitions of Shabbat are permitted or only set aside in a case of pikuach nefesh. As stated, the topic requires a separate discussion, which we will undertake at a different time.

Another practical ramification of the question of hutra or dechuya is what to do when a critically ill person is required to eat meat on Shabbat and there is no kosher meat available. Should a kosher animal be slaughtered on his behalf, since the prohibitions of Shabbat are permitted in this case, or should the patient be fed non-kosher meat, since the prohibition of eating improperly slaughtered meat is less severe than the prohibition of desecrating Shabbat? The Rishonim disagreed, with the Rashbatz (Rabbi Shimon ben Tzemach Duran, 15^th century) arguing that the various sources in our passage allow us to arrive at an unequivocal decision:

Since regarding the sacrificial service, the Gemara concludes that the Shabbat prohibitions are permitted, the same applies to pikuach nefesh, for in the Gemara (chapter Yom Ha-Kippurim), Rabbi Akiva derives that pikuach nefesh sets aside Shabbat from that which is stated in the Torah: "You shall take him from My altar, that he may die"… If so, pikuach nefesh is more severe than the sacrificial service. If regarding the sacrificial service, we say [Shabbat] is permitted, all the more so regarding pikuach nefesh…

This can also be proven from the words of Rabbi Elazar ben Azarya, there, who derived pikuach nefesh from circumcision, and it seems that Shabbat is certainly permitted with regard to circumcision, and not just set aside.

According to this, if the matter of non-kosher meat versus the desecration of Shabbat depends on the disagreement about whether Shabbat is permitted or set aside, it is clear that we desecrate Shabbat and do not feed him non-kosher meat. (Responsa Rashbatz, III, 37)

The Rashbatz maintains that if the source of the law of pikuach nefesh is the sacrificial service or circumcision, we are compelled to say that regarding pikuach nefesh, Shabbat is in the category of hutra, and not only dechuya, because the sacrificial service and circumcision are outright permitted on Shabbat; thus, a kosher animal should be slaughtered on Shabbat for a critically ill person, rather than giving him non-kosher meat to eat.

The Chatam Sofer (Rabbi Moshe Sofer, 18^th century) presents a similar position in his responsa, but proposes that the various expositions in the Gemara disagree on this very point: 

In a case of pikuach nefesh, the Maharam of Rotenburg, cited by the Rosh (Yoma 8, 14), maintains that all of the commandments are set aside, whereas Shabbat is permitted, for Shabbat with respect to pikuach nefesh is like a festival day with respect to okhel nefesh (cooking food). For the setting aside of the entire Torah is derived from "he shall live by them," and the laws are only set aside, whereas regarding Shabbat, there is an additional verse, "And the people of Israel shall keep the Shabbat," which indicates that it is permitted.

But according to this, both [derivations] are necessary. This requires further study, for it is stated in Yoma 85b: "Better is one corn of pepper [than a basket full of pumpkins]," but surely they are both necessary… Further study is also needed because they want to learn pikuach nefesh from circumcision, and regarding circumcision, [Shabbat] is set aside but not permitted. (Responsa Chatam Sofer, Orach Chaim 85)

While the Rashbatz assumed that with respect to circumcision, Shabbat is hutra, the Chatam Sofer maintains that it is dechuya. Therefore, in his opinion, some of the derivations lead to the conclusion that Shabbat is hutra regarding pikuach nefesh – especially the derivation: "Profane for his sake one Shabbat, so that he may keep many Shabbatot"; but the primary derivation from "he shall live by them," as well as the derivation from circumcision, lead to the conclusion that regarding pikuach nefesh, Shabbat is only dechuya. The Chatam Sofer is convinced about this distinction between the derivations, to the point that he is left with a difficulty concerning the Gemara's assertion that the exposition of "he shall live by them" makes all the other derivations unnecessary.[8]

IV. Circumcision on Shabbat

Whether circumcision is "permitted" in accordance with the position of the Rashbatz, or is "set aside" in accordance with the view of the Chatam Sofer, it is precisely Rabbi Elazar's exposition regarding circumcision on Shabbat that is the most difficult exposition to understand: 

Rabbi Elazar answered and said: If circumcision, which [involves] only one of the two hundred and forty-eight members of the human body, suspends Shabbat, how much more shall [the saving of] the whole body suspend Shabbat! (Yoma 85b)

As stated, circumcision does set aside the laws of Shabbat, but the basis of the kal va-chomer argument from circumcision to pikuach nefesh is unclear.[9]

Rashi is terse in his interpretation, but his words imply that the allowance to circumcise on Shabbat is based on the fact that one who is not circumcised is liable for karet (excision). From this it follows that if circumcision is permitted on Shabbat to save a person from karet, all the more should it be permitted to profane Shabbat in order to save his life. Rabbeinu Chananel expands on this and mentions what happened to Moshe and Tzippora at the lodging place (Shemot 4:24-26), from which we learn that one who neglects the mitzva of circumcision is liable for death. In his opinion, this indicates that circumcision on Shabbat comes "to redeem from death." This being the case, any desecration of Shabbat for the sake of saving a life should be permitted.

This derivation was also used as a source for a halakhic discussion of pikuach nefesh. In one of Rabbi Yitzchak Herzog's fascinating responsa on security matters, written during Israel's War of Independence, he deals with the relationship between immediate pikuach nefesh and future pikuach nefesh. This is another issue we will discuss in detail in a future shiur; for now, it is important that in the course of the discussion, Rabbi Herzog makes the following clarification:

Ostensibly, even regarding circumcision, we are dealing only with a possibility of pikuach nefesh, for if [the baby] lives until tomorrow and we circumcise him [then], there is no concern about the danger of karet…  Rabbi Elazar learns from this how far pikuach nefesh extends, for the Torah permits circumcision on Shabbat, because with the cancellation of the commandment, there is a possibility of karet.[10]

Rabbi Herzog goes on to discuss at length the relationship between the allowance to circumcise and the allowance to engage in pikuach nefesh, but the basic point is that sometimes we are concerned not only about pikuach nefesh in the present, but even about a fear of pikuach nefesh in the future.[11]

V. “It is Committed to Your Hands”

Another important principle in the laws of pikuach nefesh leads us to the fifth exposition: "It [Shabbat] is committed to your hand, not you to its hands." This exposition is directly connected to the moral aspect of pikuach nefesh, about which we learned in the previous shiurim, and to the fact that the lives of Israel are more precious to God than are the mitzvot. The Meshekh Chokhma discusses this at length:

"You shall keep the Shabbat, for it is holy to you; everyone that profanes it shall surely be put to death; for whoever does any work on it, that soul shall be cut off from among his people" (Shemot 31:14)… The plain sense of the verse seems to be that it should not seem strange: Shabbat itself is set aside to save the life of a single member of Israel, and we are even lenient about doubtful pikuach nefesh – yet, one who violates Shabbat is put to death and stoned!

Indeed, the sanctity of Shabbat is set aside for the life of an Israelite, for if there is no Israel, there is no Shabbat in the world, and who will attest to God's resting from his actions, and to His eternal existence in the world? Indeed, if an Israelite does not keep Shabbat, he is worse and more despicable than an animal, and he is stoned, and this is his atonement, because even if he is not stoned, his soul is cut off from the strong bond that binds the people of Israel to God and to his Torah, and his death is a great favor done for him…

That which is stated: "You shall keep the Shabbat, for it is holy to you," means that it [Shabbat] is given to you, and you are the main thing, and it is secondary to you. [So also did Rabbi Yonatan bar Yosef expound, Yoma 85b and the Mekhilta.] And they do whatever is necessary for a critically ill person on Shabbat, for if there is no Israel, who will sanctify it? And nevertheless, "everyone who profanes it shall surely be put to death," for he who profanes it profanes the holy covenant between him and God – "for whoever does any work on it, that soul shall be cut off from among his people" – he is not fit to live, and his death is a great favor for him…

Therefore, Shabbat for a sick person is like a weekday for all purposes, so that God's blessed name will be sanctified by Israel, who sanctify and revere His name and inform the world about His eternity and His supervision and His deliberate creation of the world. (Meshekh Chokhma Shemot 31:14)

In an approach similar to that of the Meshekh Chokhma, Rabbi Ohad Fixler[12] suggests that the two most polarized expositions in the passage are this exposition of Rabbi Yonatan bar Yosef, and the next, of Rabbi Shimon ben Menasya: "Profane for his sake one Shabbat, so that he may keep many Shabbatot.” According to the first exposition, Israel do in fact stand on a higher level than Shabbat, and the entire observance of Shabbat depends on their lives. In contrast, the next exposition assumes that Shabbat stands above every other principle – even the value of life – and the entire allowance to desecrate Shabbat at this time is only for the good of future Shabbatot, "so that he may keep many Shabbatot."

With God's help, I will dedicate the next shiur to Rabbi Shimon ben Menasya's exposition, which, as we will see, was the subject of even more important and central halakhic discussions than the other expositions we discussed in this shiur.

(Translated by David Strauss)