"A Spring Belonging to the Residents of a City" – Sanitation Hazards as Pikuach Nefesh

Introduction

In the previous shiurim, we dealt with two fundamental Talmudic passages that relate to communal pikuach nefesh on Shabbat: one dealing with a fiery ember of metal in the streets, and one dealing with catching and killing harmful animals. In this shiur,we will turn to a third Talmudic passage related to communal pikuach nefesh, which deals with the status of sanitation hazards and tries to determine whether there are situations in which maintaining hygiene is considered a matter of pikuach nefesh.

Encyclopedia Hilkhatit Refu'it (Encyclopedia of Jewish Medical Ethics) states:

The concept of hygiene, which is generally understood as limited to the maintenance of cleanliness, is actually a theory of health and the preservation of health. In contrast to active medicine, which refers to the sick person, hygiene and preventive medicine refer to the healthy person. The goal of the branch of hygiene is the preservation of health and the removal of hazards that threaten it. (Encyclopedia Hilkhatit Refu'it, vol. 2, s.v. beri'ut)[1]

I would like to focus our discussion in this shiur on the popular meaning of the term "hygiene," that is, topics related to maintaining adequate sanitation and basic cleanliness. These issues find expression on an individual basis in the continuation of that entry in the encyclopedia, with examples such as the opinion that washing one's hands for a meal is necessary because of cleanliness[2] or the prohibition recorded by the Shulchan Arukh (OC 170:16) to pass a cup "from mouth to mouth," a practice that is liable to transmit disease.

However, our focus will be on sanitation and cleanliness in the context of the community, when the issue is one of public welfare and the situation may even reach the point of communal pikuach nefesh.

The Halakhic Question

To clarify the issue, I will begin with an actual case that occurred: A water pipe burst in a residential neighborhood on a Friday morning. Handling the malfunction was complicated and the work continued into Shabbat. The water was shut off in the entire neighborhood, so the municipality brought in a water tank before Shabbat to provide the community with drinking water. However, the houses were still cut off from water, including the bathrooms, which forced people to relieve themselves in dirty and smelly toilets, or else in the street. The question was raised whether it is permissible to continue to work on the problem even if it would involve desecration of Shabbat.

If there was a need for drinking water, and the problem could not be solved by bringing in a water tank or bottled water before Shabbat, it stands to reason that there would be room to allow work to continue on Shabbat. This is because for a large community, which certainly includes children, the elderly, or the sick, to lack drinking water for many long hours would certainly be defined as pikuach nefesh. Similarly, if it were possible for non-Jewish workers to fix the problem, there would be reason to permit that: asking a non-Jew to perform a prohibited labor is forbidden only by Rabbinic law, and Rabbinic prohibitions are permitted for the sake of human dignity.[3]

In the case in question, however, the workers who were trying to fix the problem were Jews, and it would have been impossible to find non-Jews to continue the work in their stead. Therefore, the question was asked whether it is possible to permit Torah prohibitions in such a situation, until the problem is resolved and the flow of water in faucets and bathrooms is restored.

A Spring Belonging to the Residents of the City

The Mishna at the beginning of chapter 11 of tractate Nedarim deals with the definition of vows that involve "affliction," which can be cancelled by the vower’s father or husband. The Tannaim disagree as to whether it is possible to cancel a vow related to washing the body, and the Gemara clarifies their disagreement in light of the status of washing one's body in two other halakhic realms.

The first realm is that of Yom Kippur: even though bathing is prohibited on Yom Kippur, one is liable for karet only if he eats or drinks, which indicates that bathing is considered a lower-level violation of the required affliction.

The second realm is connected to communal conduct in a situation of a water shortage and is relevant for our case, as follows.

The Gemara in Bava Metzia (62a) teaches us a great principle: "Your life is given precedence over the life of another person." If two people were walking in the wilderness, and only one of them has water, his life is given precedence. The Tosefta (Bava Metzia 11:33-37) applies this rule to communal conduct in a situation of a water shortage, and establishes that if there is a spring near one city, its residents may drink of its water and are not obligated to share it with the residents of a neighboring city that is also suffering from a shortage.[4]

Favoring one city over another, when both suffer from a lack of drinking water, is based on the rule of "your life is given precedence" and seems to follow strictly from the aspects of pikuach nefesh that the case involves. Therefore, if one city has sufficient drinking water for its population, but is short on water needed for other purposes, the second city, which is in need of drinking water, would be given precedence.

But the same passage in Nedarim cites the continuation of the Tosefta, where we find the surprising position of Rabbi Yose:

With respect to a spring belonging to the residents of a city… if the choice lies between the lives of others and their own laundry, the lives of the others take precedence over their own laundry.

Rabbi Yose said: Their laundry takes precedence over the lives of others. (Nedarim 80b)

Rabbi Yose states that the residents of the city may use the water to launder their clothes even though there is a shortage of drinking water in a nearby city. In other words, laundry is considered an essential necessity no less than drinking, and we apply to it the rule that "your life is given precedence."

The Gemara notes that Rabbi Yose's statement is so novel that Isi bar Yehuda, one of the great sages, stayed away from Rabbi Yose's classes for several days because he could not understand his position on this issue. Rabbi Yose's son explained to him that his father's view is alluded to in the Torah's verses regarding the open land surrounding the cities of the Levites (see Bamidbar 35:1-5), from which it may be concluded that laundry is a "vital necessity" (chiyuta) for the city's residents.[5]

Regarding the nullification of vows, however, Rabbi Yose maintains that a vow not to bathe is not considered a vow that involves "affliction." The Gemara therefore asks: If, according to Rabbi Yose, bathing, which is a basic hygienic necessity, is not considered an "affliction," why does he consider laundering clothes, which is also a hygienic necessity, an issue of pikuach nefesh that even allows the residents of a city to prioritize their laundry over providing drinking water to the residents of a different city? The Gemara answers:

Laundering, according to Rabbi Yose, is more important than bathing. As Shmuel said: Grime on one's head leads to blindness; grime on one's clothes leads to madness; grime on one's body leads to boils and sores. (Nedarim 81a)

The commentary to tractate Nedarim typically attributed to Rashi explains:

Grime on one's head – which he does not wash[6]…; grime on one's clothes – that he wears clothes that he does not wash to the point that they turn black…; grime on one's body resulting from sweat that he does not wash off. (Nedarim 81a)

The "grime" in the passage is the result of a lack of hygiene, in a case of not being careful about washing one's body or laundering one's clothes, and the calamity stemming from grime on one's clothes is the most severe of all. As Rashi puts it: "Madness is the worst of all." This is why Rabbi Yose gives precedence to "their laundry," even over "the lives of others."

The Explanation of Rabbi Yose's Position

The conclusion that emerges from the passage is that, according to Rabbi Yose, non-observance of hygiene in general, and especially that which relates to laundering clothing, is so serious that it sets aside even an essential need of others, such as drinking water for the residents of a nearby city.

However, there is still room to discuss whether, in Rabbi Yose's opinion, non-observance of washing falls into the category of real pikuach nefesh. The Rishonim and Acharonim are divided on this issue, as follows:

1.  Great distress

In the continuation of his comments, Rashi writes:

For if they do not launder their clothes, there is distress; this is also the matter of grime mentioned above. (Nedarim 81a, s.v. ela)

That is to say, despite the severity of "grime," it is still only a matter of "distress" and should not be seen as a real issue of pikuach nefesh. In a slightly different manner, the Meiri writes:

Doing one's laundry is greatly needed for [maintaining] the health of one's body. (Meiri, Beit Ha-Bekhira, 80b, s.v. shetei ayarot)

This is the accepted understanding of Rabbi Yose's position among the Acharonim. Thus, in the framework of a discussion about a person's obligation to put himself into certain or uncertain danger for the sake of another person, the Minchat Chinukh writes:

In Nedarim there is a dispute, that Rabbi Yose maintains that even [if the choice is between] one's own laundry and the life of another person, one's own laundry takes precedence, because of the great distress to the body, and the Sages disagree [and say] that the life of another person takes precedence over his distress. But it would appear that to put himself into a situation of possible danger is unnecessary. (Minchat Chinukh, commandment 296, no. 32).

The Minchat Chinukh implies that the Sages reject Rabbi Yose's position because they understand that refraining from laundering one's clothing involves only "great distress,"[7] and one many not put another person's life in actual danger only in order to avoid distress.

If indeed this is the way to understand Rabbi Yose's position, his position is exceedingly novel, for according to him, relieving one’s own distress takes precedence over saving the life of another person. This novel view is implied by the words of the Tosefta itself, which says:

If the choice lies between their own animals and the lives of others, they [the others] are given precedence over their own animals. Rabbi Yose says: Their own animals are given precedence over the lives of others. (Tosefta, Bava Metzia 11:33)

The need for drinking water for animals certainly does not fall into the category of pikuach nefesh, and yet Rabbi Yose gives it precedence over the lives of the residents of other cities.

However, Rabbi Chaim Ozer Grodzinski writes that this interpretation of Rabbi Yose's position is unthinkable. Is it possible that a person would take care of his livestock or his laundry even at the cost of human life? He argues that we must say Rabbi Yose is dealing with a case where the lack of drinking water in the other city does not reach the level of pikuach nefesh:

Perforce, we are dealing with a case where it is possible to bring in bread and water from another place; but if there is concern about absolute danger, it is out of the question. (Responsa Achiezer, part II, Yoreh De'a 23)[8]

This understanding illuminates the entire passage in a different light: we are not talking about letting people in the nearby city die of thirst, but about the effort necessary to supply their drinking water; regarding this, Rabbi Yose maintains that the townspeople's own animals or laundry are given precedence.

Rabbi Yechezkel Abramsky understood Rabbi Yose similarly:

But they would not have died of thirst without this water, since they had a small amount of water to quench their thirst. And in such a case, Rabbi Yose disagrees, and says that their own animals are given precedence over the lives of others. (Chazon Yechezkel on Tosefta, Bava Metzia 11:33)

It seems to me that this is the prevailing interpretation among the more recent halakhic authorities, such as Iggerot Moshe (Yoreh De'a, part I, no. 145) and in two places in Yabi'a Omer (Choshen Mishpat, vol. IX, no. 12, 6 and vol. X, no. 6, 10). The first responsum in Yabi'a Omer deals with donating a kidney (possible [safek] danger for the sake of saving the life of another person), and the second deals with the Entebbe rescue mission. In both cases, Rabbi Ovadya Yosef cites, in his usual manner, very many sources from the Acharonim (and even a relatively rare source from the words of the Rishonim, from the book Yichusei Tannaím va-Amoraim), all of whom explained the passage in such a way that it is not dealing with a situation of pikuach nefesh in the neighboring city, but only with the trouble and effort required to supply water, with respect to which the animals and the laundry of the residents of the city take precedence.

2. Uncertain (safek) pikuach nefesh

The interpretations of the Achiezer and the Chazon Yechezkel accord with the reading of the Tosefta, where Rabbi Yose gives precedence to the animals and laundry of the city's residents over the lives of others. However, the plain meaning of the Talmudic passage focuses on the importance and the meaning of laundry, which is "more important," implying that according to Rabbi Yose, laundry is in fact sometimes equivalent to actual pikuach nefesh. This conclusion is stated explicitly in the words of the Netziv, as we shall see. 

Neither the Rambam nor the Shulchan Arukh refer to or rule on the dispute between Rabbi Yose and the Sages.[9] The regular rules for halakhic decision-making in the case of a single dissenting opinion versus the majority opinion would seem to decide in favor of the Sages. This is stated explicitly by the Meiri in Nedarim (ibid.), that the law is in accordance with the Sages and the lives of others are given precedence over the laundry of the residents of the city.

However, Rav Achai in his She'iltot on Parashat Reeh, in connection with the mitzva of charity and a person's responsibility to other human beings, decides explicitly in accordance with Rabbi Yose:

If the residents of a city dug a canal, and there is another city that has no water, they are obligated to give them water to drink, as it is written: "That your brother may live with you" (Vayikra 25:36)… But if there is not enough for them to drink and for the residents of the other city, their lives are given precedence over the lives of others… And the law is that their own laundry is given precedence over the lives of others… And the law is that laundry is an essential need, and if the choice is between their own lives and the lives of others, their own lives are given precedence over the lives of others. This is the law. (She'iltot 147)

The Netziv, in his Ha'amek She'eila commentary (ad loc.), discusses why the She'iltot decided the law in accordance with Rabbi Yose against the Sages, and clarifies the basis of the dispute:

Perforce, the reason of Rabbi Yose… he compares their animals to their bodies, and a person's animal is the life of a person walking on the road; if his animal is not with him, he suffers. And so too it is impossible that they not go on the road for their livelihood, and if so, it is their life…

And it seems that the danger of thirst is not similar to the danger of their animals and their laundry, for regarding the danger of thirst, it is clear that they will die of thirst, which is not the case with their animals and their laundry, regarding which it is possible that they will come to danger, but many people walk on the road without an animal and do not suffer, and many people do not come to madness due to the lack of laundry. But nevertheless, it is a case of possible danger to life, and the anonymous first Tanna maintains that one must enter into possible danger to life in order to save the life of another person… The law is in accordance with Rabbi Yose that one must not enter into possible danger to life in order to save the life of another person. (Ha'amek She'eila, she'ilta 147, 4)

According to the Netziv, a lack of water for laundry is not a situation of complete pikuach nefesh, but it still falls into the category of possible pikuach nefesh. In his opinion, this is precisely the Tannaitic dispute: the Sages maintain that the residents of the city must enter into a situation of possible pikuach nefesh in order to save the residents of a neighboring city from certain danger. Rabbi Yose, whose position is accepted as the law according to the She’iltot, maintains that a person is not required to enter into a situation of possible danger to life in order to save another person from certain danger.

3. Communal pikuach nefesh

Rabbi Prof. Moshe David Tendler, the son-in-law of Rabbi Moshe Feinstein and a noted Torah scholar and man of science in his own right, cites the explanation of the Netziv but notes that even according to that explanation, the puzzling nature of Rabbi Yose's position remains: Is the danger arising from a lack of water for laundry really defined as possible pikuach nefesh, to the extent that it would set aside the certain pikuach nefesh arising from a lack of drinking water? According to Rabbi Tendler, the answer is in the affirmative, but that is because of the principle of communal pikuach nefesh that we have been discussing:

There are two sources in the Talmud from which it may be concluded that we do not rule for a society in the same way that we rule for an individual… Now this halakha is very puzzling: How can one exempt himself from the duty of rescue and watch another person die of thirst with the argument that if he gives the other person water to drink, he will not have water to launder his clothing, and over the course of months he will come to the distress of madness?!

…But in our passage of the spring belonging to the residents of a city, it is the responsibility of society, or the kingdom, or the government to worry about the distant future. By the definition of a society or a state that bears responsibility for generations yet to be born, the future and the present are one. If so, the failure to launder clothing will lead over time to definite pikuach nefesh, and not only to possible pikuach nefesh, and therefore the danger according to society's calculation is immediate and not potential.[10]

What we have here is a striking and in-depth formulation of the concept of communal pikuach nefesh, with an emphasis on future concerns. The hygienic hazard of not doing laundry is certainly not defined as pikuach nefesh in the sense of "a sick person before us" or "a danger before us"; the concern in its essence is a future concern.[11] Therefore, it is clear that drinking water takes precedence over water for laundry. But Rabbi Yose is dealing not with individuals, but with "a spring belonging to the residents of a city." As Rabbi Tendler explains, communal pikuach nefesh requires a reexamination of the boundaries between future and present. When a community is involved, even a future danger is seen as full-fledged danger.

Rabbi Yekusiel Yehuda Halberstam, in his Responsa Divrei Yatziv, also raises this possible understanding of Rabbi Yose’s position, and even connects it to opinions that were discussed in previous shiurim in this series:

And even according to the plain meaning of our Talmud that it is because of distress, it is possible that communal distress is different. See Shabbat 42a, that one may extinguish a metal ember in the public domain, so that there will be no injury to the community. And the Ramban there states that perhaps Shmuel treats all injury to the community like a situation of danger to life… There is room to say that here too, in a situation of communal distress, it pertains to say that their lives are given precedence. (Responsa Divrei Yatziv, Choshen Mishpat 79, no. 26)

According to the Divrei Yatziv, a clear line can be drawn between the position of the Halakhot Gedolot and Rabbeinu Chananel in the case of a flaming metal ember and the position of the She'iltot in the case of a spring belonging to the residents of a city. It turns out that according to the Divrei Yatziv and Rabbi Tendler, Rabbi Yose’s opinion – which, according to the She'iltot,is the opinion that was accepted as halakha – is another remnant of "laws governing the community, which are not in accordance with the Torah's parameters regarding the laws pertaining to the individual."

Repairing a Sanitary Hazard on Shabbat

We opened our discussion with a halakhic question about repairing a sewage problem or a water outage on Shabbat. Rabbi Dov Lior was asked this question about fourteen years ago; he answered on Adar 15, 5768:

This is truly a problem. In such a case it would be permitted [to make the repairs] by a non-Jew. In such matters, one must at times obtain the assistance of someone who is not a member of the covenant, who is not obligated to keep Shabbat, since these are communal needs. This is no worse than a sick person who is not in danger, if there are toilets with foul smells and it is an area with children, and it is permitted for the sake of the children to do such a thing. But [to make the repairs] by a Jew is a problem… Ostensibly, this does not seem to be a matter of pikuach nefesh on the part of a Jew that would permit a Torah prohibition. I do not wish to make a final determination, since I do not know all the facts.[12]

For a non-Jew to make the repairs is undoubtedly the preferred solution. So too the author of Piskei Teshuvot (314, note 58) writes that regarding sewage mishaps "in a public institution," one may be lenient and ask a non-Jew to repair the problem.

However, in my humble opinion, based on the opinion of the She'iltot as it was understood by the Divrei Yatziv and Rabbi Tendler, there may be room for leniency, when there is no alternative, even regarding Torah prohibitions. Of course, one can propose differences and distinctions between the sanitary hazard of not doing laundry, according to Rabbi Yose, and the sanitary hazard of toilets that are out of operation. But despite the distinctions, it seems that the principle is the same: Regarding a communal sanitary hazard that affects many people, and all the more so when it is located in the public domain, such as a burst sewage pipe that has resulted in sewage flowing in the streets, there is room to see the situation to some degree as one of pikuach nefesh that permits desecration of Shabbat even with the violation of Torah prohibitions.

Sanitation in an Army Camp

In conclusion, it is important to note that in the case of an army camp, the obligation to maintain a high standard of cleanliness and hygiene becomes even more significant. There is a positive Torah commandment to include a spade among a fighter's weapons and to make sure that the soldiers relieve themselves in a designated place outside the camp. The Sefer ha-Chinukh explains the reason of the commandment:

And it is fitting for them to stand in cleanliness, as it is known that cleanliness is one of the good traits that lead to the holy spirit… And there is also praise to the people in this, when gentile envoys come and see that their camp is holy and clean from all filth. (Sefer Ha-Chinukh, 566) 

A camp free of sanitary hazards is a holier camp, and also more impressive in the eyes of the nations. This is in addition to the practical consideration, that an outbreak of some disease as a result of a lack of hygiene in the military camp could seriously damage operational fitness. From another angle: Soldiers needed for operational activity may refrain from defecating for many long hours when there is a water or sewage failure, and this too may have an operational impact.

In my opinion, these considerations certainly combine with the fundamental principle that we established above, to permit the repair of a water or sewer mishap on an operational base when there is no alternative solution and it is not possible for a non-Jew to fix the problem.

Indeed, when the question arose during Operation Protective Edge of transporting portable toilets for the soldiers who had assembled in staging areas, we consulted with several important halakhic arbiters, and they agreed that if the army did not have time to transport them before Shabbat, there is room to permit transporting them even on Shabbat.

Since we have been dealing with the significance of doing laundry and wearing clean clothes as part of hygiene, we will end with the report of Rabbi Re'em Ha-Kohen regarding an interesting ruling by Rabbi Shlomo Zalman Auerbach:

I told the Rabbi that on the Shabbat following the cease-fire, we were brought clean clothes. I asked the Rabbi what the law was regarding wearing the clothing. When I began to present before the Rabbi the set of opinions regarding the prohibition to derive benefit from Shabbat desecration, he stopped me and told me very firmly: Of course one must desecrate Shabbat in order to bring clean clothes to fighting soldiers!

The Rabbi held the collar of his coat and said to me: You yourself must go and bring clean clothes on Shabbat! A soldier who is dirty and his clothes are dirty will not fight well because of the dirt with which he is covered. (Ve-Aleihu Lo Yivol – Mei-Hanhagotav ve-Hadrakhotav shel Harav Shlomo Zalman Auerbach, ztz"l, vol. 2, p. 312)

Rabbi Auerbach was not expressing concern about the sanitary hazard of dirty clothes; rather, he wished to strengthen the spirit and resilience of the soldiers, by ensuring they would have clean clothes. Nevertheless, his decisive statement adds to the clarification of the importance of hygiene and cleanliness in a military camp.

(Translated by David Strauss)
 

[1] See also Minchat Asher – Corona, no. 5. The title of the section is: "The obligation of cleanliness (hygiene) and preventive medicine," although there is actually no halakhic reference to sanitation and basic cleanliness, but only to the general obligation to maintain the body and to avoid harmful foods and other unhealthy behaviors.

[2] See Tosafot Chullin 106a, s.v. mitzva, and Mishna Berura 158, no. 1.

[3] The source for this is tractate Shabbat (81a), and other passages. Contemporary authorities agree that it is permissible to open a clogged toilet on Shabbat; see Shemirat Shabbat ke-Hilkhata (23:10-11), Orchot Shabbat (chap. 8, no. 31), and Piskei Teshuvot (no. 312, 4). The reasoning is that opening a clogged toilet is a matter of human dignity; if the stench is strong, one may perform actions that are forbidden by Rabbinic law, and as stated above, this includes asking a non-Jew to perform an action that involves a Torah prohibition.

[4] The right of a city to the springs within its territory is one of the enactments ordained by Yehoshua bin Nun and his court when they divided up the Land of Israel; see Bava Kama 81a and Rambam, Hilkhot Nizkei Mamon 5:3).

[5] The same account, which expresses the great novelty in Rabbi Yose's position, is presented with a few changes in the Jerusalem Talmud (Nedarim 11:1; Shevi'it 8:5).

[6] See Tosafot and Ran there, according to whom the reference is to someone who does not comb his hair, not to someone who does not bathe. Regarding the other two cases, the Tosafot and Ran agree with Rashi that the issue is non-bathing.

Rabbi Akiva Eiger, in Gilyon ha-Shas, points out that Rabbeinu Yona (Berakhot 9b in the pages of the Rif, s.v. matni) explains "grime on one's head" as does Rashi. Rabbeinu Yona also cites the view of Rabbeinu Chananel that, at least with respect to a fastidious person, refraining from bathing could be defined as a "danger." It is not clear whether he means complete pikuach nefesh, but in any event Rabbeinu Yona, rejects his understanding.

[7] This is also implied by the words of the Beit Shmuel in another context (Shulchan Arukh, Even ha-Ezer 80, no. 15).

[8]  The responsum is dealing with priorities in the distribution of charity. The case was as follows: A collection was made in several synagogues in Lithuania to assist in the economic rehabilitation of several cities that had been damaged by fire. After the money was collected, it became known that the situation in Jerusalem had become unbearably difficult, to the point of famine, due to an outbreak of cholera (the responsum was written on Kislev 15, 5663 [1902]). After a long discussion of the laws of "changes in charity," the Achiezer states that this situation is similar to the case of "their own laundry and the lives of others": in Jerusalem there is a real danger to life, whereas in the cities of Lithuania, the issue is "livelihood and well-being" and economic rehabilitation. Therefore, he rules that the money should be transferred to Jerusalem.

[9] The Rishonim disagree about the halakha regarding the cancellation of vows involving bathing; see Ran, Nedarim 81a, s.v. ela lav.

[10] "Ba'ayot bi-Kedima be-Hatzala," in: Kevod ha-Rav – Kovetz Ma'amarim li-Khevodo shel ha-Grid Soloveitchik, New York 5744, p. 168.

[11] As mentioned above, the Gemara also includes in the discussion the issue of affliction on Yom Kippur. In this context, the Tosafot emphasize there (Nedarim 80b, s.v. milta) that it is clear that refraining from bathing, and apparently also from laundering, is of no significance after one day, but only with accumulated dirt and filth.

[12] The responsum is available at https://www.yeshiva.org.il/ask/35803.