Self Driving Cars: Killing One to Save the Many Part 1 By Rabbi Chaim Jachter

2020/5781

The exciting development of self-driving cars is driving a heated debate in the Torah community about whether such vehicles may be programmed to kill one innocent individual to save a large group of people. In order to place this issue into perspective some background information is needed.

The Mitzva to Save Lives [1]
The Mitzva to save lives is famously articulated in the Mishna (Sanhedrin 37a) therefore humanity began with just one person to teach that whoever destroys a life is as if he destroyed an Olam Malei, an entire world and one who preserves a life is as if preserved an entire world.

The Gemara (Sanhedrin 73a) records that Vayikra 19:16 “Lo Ta’amod Al Dam Rei’acha” teaches that “one who sees another drowning in a river, or being dragged away by a wild animal, or being attacked by bandits, is obligated to save him”.

The Gemara further states that this Pasuk teaches us that he must make every effort and even hire workers to save another from death. Rashi (ad. loc.) adds that Lo Ta’amod Al Dam Rei’acha teaches that one should not be passive but rather leave no stone unturned (“Chazor Al Kol HaTzedadim”) in his effort to save the life of another. The obligation to save lives is so great as to require one to kill a Rodef, an individual in pursuit of murdering another individual.

The Prohibition to Murder

On the other hand, murder is defined by the Halachah as the most heinous of sins. Rambam (Hilchot Rotzei’ach UShemirat Nefesh 4:9) expresses this idea in the strongest of terms. Interestingly, the Maharatz Chiyutz to Sanhedrin 7a utilizes this Rambam to explain why according to the Gemara (Sanhedrin 7a) Aharon, unlike Chur, felt it would be better to create the Eigel HaZahav than to allow himself to be murdered. Since murder is far worse than idolatry, Aharon feared that had Am Yisrael violated murder there would have been no chance to attain their forgiveness.

The Thin Line Dividing an Act of Rescue from an Act of Murder

Even when we have an obligation to save another from a Rodeif, every effort must be made to save the victim without killing the Rodeif (Sanhedrin 74a). Moreover, one who kills a Rodeif but was able to protect the victim without killing the Rodeif is Chayav Mitah, deserving of death [2].

Moreover, Halachah forbids sacrificing one life to save another. This principle is articulated by the Mishnah (Ohalot Chapter 7 Mishnah 6):

A woman whose life is endangered in hard labor is permitted to have the pregnancy terminated. However, once the head of the baby has emerged, one cannot touch it as we are forbidden to kill one individual to save another (Ein Dochin Nefesh MiPenei Nefesh).

This principle is reinforced by the Talmud Yerushalmi (Terumot chapter eight) which states:

A group of individuals on a journey and are encountered by evildoers who said to them ‘Give us one member of your group or we shall kill the rest of you’ – let them all be killed and we must not release even one Jewish soul (Yemsaru Kulam VeAl Yemasru Lahem Nefesh Achat BeYisrael).

Accordingly, not only can we not kill an individual in order to save the life of another individual but we cannot even kill an individual in order to save the lives of numerous people.

The Yerushalmi poses a serious question on this principle from the episode that is related in Shmuel II Chapter 20. The Navi records the story of a “wise woman of the town of Avel Beit Ma’achah” who hands over the rebel Sheva ben Bichri to King’s David’s general Yoav ben Tzeruyah. She did so in order to spare the entire town from being destroyed by Yoav ben Tzeruyah for harboring Sheva ben Bichri. The Navi apparently condones the actions of this woman as it refers to her with the complimentary title “wise woman”. Accordingly, the Yerushalmi is puzzled why she is complimented when she sacrificed the life of one in order to save the life of others.

The Yerushalmi cites two explanations for why the case of Sheva ben Bichri differs. Rav Yochanan explains that Sheva ben Bichri differs because he was designated for death by Yoav ben Tzeruyah. Reish Lakish explains that the situation of Sheva is different because according to Halachah, Sheva deserved the death penalty. He was deserving of such punishment due to his rebellion, as one who rebels against the king may be put to death (Rambam Hilchot Melachim 3:8).

The debate between Rav Yochanan and Reish Lakish remains unresolved as Rishonim3 debate as to whose opinion should be followed and the Rama (Yoreh De’ah chapter 147) cites both Rav Yochanan and Reish Lakish without deciding between the two opinions [4].

The Kesef Mishneh (to Hilchot Yesodei Torah 5:5), though, notes the famous reason/Sevara offered by Chazal (Yoma 82) for forbidding murder to save a life is how does one know that his blood is redder than his friend’s blood. This would seem to permit killing one to save the many, as many people’s blood is מאי חזית דדמא דידך סומק “ ,redder than the blood of just one person .”טפי? דילמא דמא דההוא גברא סומק טפי

Kesef Mishneh answers that Chazal had a tradition/Mesorah from Sinai that one may not kill to a life [5]. Mai Chazit is merely an explanation for the Halachah we know from our Mesorah. Thus, the Halachah forbidding killing to save a life applies even in a case when the Sevara of Mai Chazit does not apply.

Rav Yona Reiss poignantly observes that these teachings of Chazal communicate a lesson of the highest order of importance, that there is a very thin line that divides a heinous act of murder/Ma’aseh Retzichah and a valiant act of rescue/Ma’aseh Hatzala. When rescuing, the Halachah demands that we make an extraordinary effort to make sure that we do not, heaven forfend, cross the frighteningly thin line from an act of the highest order to the greatest sin possible [6]. Sacrificing or Risking One’s Own Life to Save the Life of Another The Beit Yosef (Choshen Mishpat 426) cites the Jerusalem Talmud that appears to teach that one must risk his life in order to save another from certain death. Nonetheless, the Sma (426:2) notes that the Shulchan Aruch does not cite this passage from the Jerusalem Talmud. The Sma explains that the fact that most Rishonim (including Rambam, Rif, Rosh, and the Tur) do not cite this passage demonstrates that it does not constitute normative Halachah. The Pitchei Teshuva (C.M. 426:2) cites the Agudat Eizov who explains that the omission of this Jerusalem Talmud passage by the major Rishonim and the Shulchan Aruch is because the Babylonian Talmud (which is more authoritative than the Jerusalem Talmud) rejects this assertion of the Jerusalem Talmud. We should note that subsequent Acharonim seek to discover which specific passages in the Talmud Bavli (such as Nidda 61a, Sanhedrin 38a, and Bava Metzia 62a) indicate a rejection of the assertion of the Jerusalem Talmud. For a summary of this literature, see Teshuvot Tzitz Eliezer 9:45.

Accordingly, normative Halachah does not require one to risk his life to save another. It is not clear, however, if one is permitted to risk his life on behalf of another. There appears to be a contradiction in a celebrated responsum of the Radbaz (Teshuvot Radbaz 627) regarding risking one’s life in order to save another from certain death. The Radbaz rules that one is not required to assume such a risk.

However, regarding whether it is permissible to assume such risk, on one hand, he refers to one who does so as a “Chassid Shoteh,” a pious fool. On the other hand, the Radbaz writes that it is Midat Chassidut (a pious and meritorious act) to risk one’s life in order to save another from certain death. Rav Eliezer Waldenburg (Teshuvot Tzitz Eliezer 9:45:11) and Rav Ovadia Yosef (cited in Nishmat Avraham 1:121) explain that the Chassid Shoteh is one who assumes an extraordinarily great risk in order to save another. One’s actions are deemed praiseworthy, as Midat Chassidut when the risk that one assumes is not extraordinary. Bottom line is that the Halachah does not permit one to sacrifice his life to save another as stated by Rav Moshe Feinstein (Teshuvot Igrot Moshe Yoreh Dei’ah 2:74:4) and Rav Shlomo Zalman Auerbach (2:86).

Rav Yona Reiss suggests an explanation for this Halachah based on the idea that one may not commit an act of murder to save the life of another. He notes that suicide constitutes an act of murder [7]. Thus self-sacrifice to save another is defined as crossing the line from an act of saving to an act of murder. One may not engage in an act of murder even to save another’s life.

We might ask, though, from Rashi to Bava Batra 10b (s.v. Harugei Lod) cites a remarkable story about a wicked Roman leader named Turinus who found his daughter dead in the city of Lod. He immediately accused the Jews of killing her and decreed that all the Jews of Lod be slain in revenge. In order to save the town from the terrible decree, two holy Jewish brothers, Lulinus and Papus, pretended that they had killed the girl and they were executed. The Gemara states that Lulinus and Papus received the highest possible reward in Olam HaBa (heaven) [8].

However, Rav Avraham Yitzchak HaKohein Kook answers that this case is different since Lilunus and Papus were anyhow slated for death. Their greatness lies in their willingness to hand themselves to the Roman authorities and suffer unusually cruel torture (as the wicked Romans commonly practiced on those they perceived as having disobeyed them). Moreover, they sacrificed themselves for the sake of an entire community [9]. In addition, in case of war there may be more reason to permit such action, explains Rav Eliezer Waldenburg (Teshuvot Tzitz Eliezer 12:57. Rav Waldenburg writes

Just as we may not derive from that which is permissible during war to civilian situations, so too we may not derive from that which is forbidden in ordinary circumstances to the circumstances of war. Just as the rule of V’Chai Bahem does nto apply during war, so too the rule of Chayecha Kodemim L’Chayei Chavercha does not apply during war. Rather each soldier must risk his life on behalf of his fellow soldier. This is included in the rubric of the Halachah regarding community and properly leading a country (“Hilchot Tzibbur V’Hanhagat HaMedina VeTakanata”).

[1] The structure and much of the content of our discussion is based on the structure used by Rav Yona Reiss in his Hebrew language essay where he sets forth his views on this topic.

[2] Rambam (Hilchot Rotzei’ach UShemirat Nefesh 1:13) and Ra’avad (Hilchot Melachim 9:4) disagree as to whether Beit Din actually administers the death penalty in such a situation. For further discussion and clarification see the Even HaEzel to both Hilchot Rotzei’ach UShemirat Nefesh 1:13 and Hilchot Melachim 9:4. Even HaEzel explains that Beit Din would administer the death penalty only if it was relatively easy to save the Nirdaf without killing the Rodeif. For this reason the Gemara (Sanhedrin 49a) regards Avner as Chayav Mitah for killing Asa’el, despite the fact that Asa’el was trying to kill Avner. The fact that Avner killed Asa’el precisely in the fifth rib demonstrates that Avner could have just as easily saved himself from Asa’el by striking him in a way that would have immobilized but not killed him. Beit Din, continues the Even HaEzel, will not administer the death penalty according to Rambam, if it requires excessive exertion to find a way immobilize the Rodef instead of killing him. Nonetheless, even in a case where great exertion is required and he failed to do so, he is Chayav Mitah Bidei Shamayim, subject to punishment of death at the hand of Hashem.

[3] The Ran (Yoma 82b) rules in accordance with Rabi Yochanan. Rambam (Hilchot Yesodei HaTorah 5:5) rules in accordance with Reish Lakish (which is surprising since the Halachah normally follows Rabi Yochanan in his disputes with Reish Lakish). The Kesef Mishnah explains that since we are dealing with a matter of Nefashot (lives) the Rambam rules strictly. Interestingly, Rashi (Sanhedrin 72b s.v. Yatza Rosho) cites both Rabi Yochanan and Reish Lakish’s approaches without indicating a preference to either opinion.

[4] The Taz (Yoreh Dei’ah 157:7) rules in accordance with Reish Lakish. The Vilna Gaon (Yoreh Dei’ah 157:16) and Chochmat Adam (88:15), however, rule in accordance with the Rama, presenting Rabi Yochanan as the primary opinion.

[5] Rodeif differs because his act of pursuit causes him to forfeit his right to live.

[6] Rav J. David Bleich (Tradition Summer 2019 pages 69-71) notes that this thin dividing line explains the different stances taken by the Rabbanim in the Vilna and Kovna Ghettos in Lithuania during World War 2. The evil Nazis demanded the Jewish community council (Judenrat) cooperate in their round up of Jews, upon pain of death of all the Jews of Vilna. The Vilna Rabbinate ruled it forbidden to cooperate with the Nazis while the rabbis of Kovna including the great Rav Avraham Dov Ber Kahane-Shapiro (the author of Teshuvot Devar Avraham) permitted such cooperation. Rav Bleich explains the difference. In Vilna the evil Nazis demanded the Judenrat hand over lists of Jews who would be delivered to their deaths. This matches the case of the Yerushalmi and thus is forbidden. However, in Kovna the Judenrat was ordered to distribute white cards to able bodied individuals who would be spared from death. This, by contrast, does not match the case of the Yerushalmi. Explains Rav Bleich that in Vilna the Judenrat’s actions of delivering a list of Jews to be killed would have been defined as acts of forbidden facilitation of murder. However, in Kovna the delivery of life saving white cards are defined as noble acts of rescue from death.

[7] The Minchat Chinuch (34:8) asserts that suicide, while a terrible sin, is not, technically speaking, defined as an act of murder. However, the Pesikta Rabbati to Shemot (Parasha 25) interprets the Torah’s command of Lo Tirtzach as Lo Titratzach, do not cause yourself to be killed. This clearly teaches that suicide constitutes an act of murder.

[8] Roi Klein is another example of a heroic Jew who went beyond Lulinus and Papus who gave themselves up to the Romans to save the lives of many Jews. Roi Klein jumped on a grenade thrown by the evil Hezbollah in the Second Lebanon War in July 2006 to save the lives of the soldiers he commanded. Rav Asher Weiss compared (in a speech delivered at Teaneck’s Congregation Rinat Yisrael in August 2006) Roi Klein to Lulinus and Papus saying that his action constitutes the highest level of Kiddush Hashem. To clarify, Mr. Klein along with his soldiers all would have died had he not jumped on the grenade to absorb its terrible impact.

[9] Rav Kook similarly explains Esther’s willingness to risk her life (and Mordechai urging her to do so). Mordechai reasoned that she might have also found herself being included in Haman’s decree. There was also the chance that Achashveirosh would be charmed by Esther and spare her from death.

Self Driving Cars: Killing One to Save the Many Part 2, By Rabbi Chaim Jachter

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