2021/5781
Rav J. David Bleich
Rav J. David Bleich also follows in the path blazed by the Chazon Ish and the Tzitz Eliezer. In his important essay “Sacrificing the Few to Save the Many” (Tradition, Spring 2010), he discusses shooting down the plane being used to hit the Pentagon in the September 11, 2001 attack. He concludes that one cannot kill the few to save the many and thus one could not shoot down the plane.
Rav Bleich writes:
“The principle that emerges is that a person dare not ignore the Chayyei Sha’ah of one putative victim even to carry out the complete rescue of another victim or even of many such victims. A fortiori (Kal VaChomer), an overt act having the effect of extinguishing even an ephemeral period of life- anticipation of even a single individual cannot be countenanced in order to save the lives of many”.
While he is on strong footing to prohibit sacrificing the few in favor of the many, one may disagree to its application in the September 11 case. There the issue is not about saving the many, it is about saving the country. The airplanes were simply missiles that happened to have innocent people in them. A missile attack is an attack on the very sovereignty of the nation and must be dealt with accordingly. When seeking to preserve the integrity and welfare of the nation, different rules apply than when dealing with civil issues (e.g., the arrow problem of the Chazon Ish).
Even if one were to prohibit killing the few to save the many in ordinary circumstances, the government may be permitted to do so in time of war if it deems it necessary for the nation’s defense. The Gemara (Shavuot 35b) sanctions a king killing one sixth of the population during wartime (see Tosafot ad. loc. s.v. DeKatla). We see that leaders may kill a small segment of the population in order to preserve the population at large. On this basis, governments are permitted to endanger the lives of citizens and send them to battle to save the nation. We argue (Gray Matter 3:211-223) that this is a solid basis to permit killing enemy civilians to save one’s own nation if there is no other viable option in a legitimate war (such as the American atomic bombing of Hiroshima).
Similarly, it may be permissible for the government to down an airliner controlled by terrorists in order to defend the country during the war on terrorism, which is very much defined as a war (as explained in Gray Matter 3:218-219). As we cited above from the Tzitz Eliezer (12:57), we do not necessarily extrapolate from that which is forbidden during conventional circumstances to the circumstances of war.
Sevara for Sheiv Ve’Al Ta’aseh
We should clarify that the Halachah certainly recognizes the difference between rescuing the few and the many. For example, the Halachah would certainly instruct a doctor to save a group of ten people on one street instead of just two on another street if all he can do is save one of the two groups.
However, the Halachah abhors murder. Halachah also recognizes and respects the individual. Simply put, returning to our earlier discussion, a Ma’aseh Hatzalah is not defined as an act of Hatzalah if one commits a murder to achieve the Hatzalah. Every individual is an Olam Malei, and killing him or her may be regarded as killing more than one person, similar to the killing of Hevel whose shed blood is described as “Demei Achicha” in the plural. Thus, the Halacha demands we refrain from killing one person in order to save the many. As Rav Kook explains, “We do not have the wherewithal to estimate the infinite value of the individual against the infinite value of many individuals” (Teshuvot Mishpat Kohein 143).
Logic/Sevara supports this conclusion as well. Imagine if the Torah sanctioned killing a completely innocent bystander to save the many. The logical conclusion one could draw from this would be that a doctor with five patients in dire need of various organs for transplant (and without which would die in very short order) could kill a healthy patient who comes in for his yearly checkup to harvest his organs to save the five gravely ill patients. Thus, the Halachah remains firm that one cannot murder even in order to save the lives of the many.
Variation #1 on the Chazon Ish’s Arrow Case
Rav J. David Bleich (Tradition Summer 2019 page 76) strikingly forbids moving the car even to reduce fatalities in a situation where the one individual who would be struck and killed would have anyhow been struck and killed by the car in its original trajectory. Rav Bleich is resolute in his insistence that the driver in such situations must remain passive even if it means saving others by only killing someone who in any event would have been killed.
However, we cited Rav Asher Weiss in last week’s article who disagrees in such a case. This debate hinges on Rav Akiva Eiger’s comment to the Mishnah in Ohalot that forbids killing a baby to save the mother once it has emerged from the birth canal. He raises the question as to the permissibility of killing the baby in order to save the life of the mother when, otherwise, both mother and baby would die absent intervention (Tosafot Rav Akiva Eiger, Ohalot 7:6, no. 16).
Although he leaves his question unresolved, Rav Akiva Eiger does cite Teshuvot Panim Me’irot, III, no. 8, who rules that such a course of action is permissible. Tiferet Yisrael (Ohalot 7:6, Boaz, number 10), similarly comments that, “perhaps it is permissible to sacrifice the infant in such circumstances in order to rescue the mother.”
Rav Bleich, however, could dismiss this analogy, arguing that the baby is different, since fundamentally the baby is a Rodeif (one who is pursuing the life of another), and essentially would have deserved to die had the baby’s pursuit not been neutralized by the mother pursuing its life.
We should note that Rav Moshe Feinstein, cited at length in an essay published in Gray Matter 4, permitted the sacrificing one conjoined twin in order to save the other in a situation that otherwise both would have died. Although we present another explanation, it is possible that Rav Moshe follows the opinions that we may sacrifice one to save another in case where absent intervention both individuals would die.
Variation #2 on the Chazon Ish’s Arrow Case
What if the individual diverting the arrow is not a third party bystander but the person who shot the arrow? This might be a different situation since the one who has shot the arrow might bear the responsibility to mitigate the malicious actions he initiated. Rav Reiss argues that in this case the one who shot the arrow might have an obligation to at least partially rectify his actions and instead of murdering five people, reduce his sin to murdering just one individual. Rav Bleich, though, argues that even the one who shot the arrow must remain passive.
Rav Bleich cites a striking comment from Tosafot (Shabbat 4a s.v. Kodem) to prove his point. The Gemara discusses someone who placed dough on the oven wall (common practice in the time of the Gemara and in some places until today) in violation of the laws of Shabbat. He does not, however, actually violate Shabbat until the outside of the dough forms a crust.
The Gemara wishes to know whether this person should remove the dough from the wall, which constitutes a rabbinic prohibition, to prevent the culmination (i.e. the dough forming a crust) of his placing the dough in the oven which constitutes a Torah level prohibition. Tosafot explain the possibility raised by the Gemara that one should not remove the dough even though a Torah prohibition would result thereby, because if one obeys a prohibition of Chazal and refrains from removing the dough, he thereby avoids violating the prohibition of baking. This is a startling statement. One avoids violating the Torah violation simply by doing nothing!
Rav Bleich argues that the same applies to the one who shot the arrow. Rav Bleich believes that the one who shot the arrow remaining passive and refraining from diverting the arrow to an innocent bystander renders him free from violating the prohibition of murder!
There is, however, much room to disagree with Rav Bleich’s startling assertion. We may not necessarily extrapolate from Hilchot Shabbat to a case of murder. In other words, just because by remaining passive he is no longer defined as having violated Shabbat, that does not mean that the same applies to a murderer.
Moreover, the Gemara concludes that there is an obligation to mitigate his sin and remove the dough from the oven before it forms a crust, despite the fact that he thereby violates a rabbinic prohibition. Tosafot is explaining a possibility which the Gemara in its conclusion rejects. In regard to murder there may be an obligation on the very soon-to-be murderer to mitigate his sin and reduce the amount of people he will cause to die. Rav Reiss therefore argues that the driver who created the situation in which five people are in grave danger of being killed may similarly be obligated to intervene and mitigate the problem he has created and reduce the amount of fatalities he will cause.
Variation #3 – A Straight Road or a Curving Road
What if there is a pedestrian standing in the road and one is thereby faced with a terrible choice? In this case one either runs over or kills the pedestrian or the driver runs himself off the road and kills himself. Based on the Tosafot cited above, the driver should remain passive. Therefore, if the road is straight the driver should do nothing and kill the pedestrian, for perhaps the driver’s blood is redder than the pedestrian’s blood. On the other hand, if the road is curving then the driver may not adjust the wheel to guide the car into the pedestrian for perhaps the pedestrian’s blood is redder than the driver’s blood. The driver in this case would be required to sacrifice himself instead of turning the wheel and taking an active role in killing the pedestrian.
Variation #4 – The Pedestrian Acting Illegally
In the essay “Halachic, Ethical and Governmental Challenges in the Development of the Autonomous Vehicle” (Editor: Rav Yosef Sprung, Kollel for Halachic Implications of Emerging Technologies, headed by Rav Asher Weiss) the authors also note an important mitigating factor: the legality of the pedestrian. That is, if the pedestrian is not legally permitted to be in the street, for whatever reason, he then has no right to cause another person (i.e., the driver or the pedestrian on the side) to give his life and thus all would agree that the driver or pedestrian need not sacrifice his own life.