by R. Gidon Rothstein
2 Kislev: Tzitz Eliezer on the Obligation to Save Others, and the Trolley Problem
Thorny issues come up in life, and any system of law or morality needs to deal with them. In Tzitz Eliezer 15;70, from 2 Kislev 5743 (November 18, 1982), R. Waldenberg considered two such questions as part of a siyyum haShas, completion of the study of the entire Babylonian Talmud (the eighth cycle of Daf Yomi was completed the previous Sunday, so I assume these are comments he made on that occasion).
He wanted to know whether a person is obligated to endanger him/herself to save another (where the rescuer might be in mortal danger, but the person being rescued certainly is), as well as whether we may save many people in such a way that will endanger or kill fewer people.
R. Tarfon’s Odd Response to a Group of Gangsters
His starting point is a story on Niddah 61a (Niddah is the last tractate of Shas, although this isn’t the last page of that tractate), where a group of men whom the government suspected of murder asked R. Tarfon to hide them. R. Taron recognizes the danger to them, but says he also has to pay attention to the rumors swirling around them.
While he cannot believe such lashon hara without proof, he has to account for the possibility that they had committed a crime that deserves punishment. If that were so, as Rashi notes, he is not allowed to hide them. [That raises questions about when Jews can help other Jews avoid the government’s justice system, but is not our topic here]. Tosafot adopted the slightly different view of She’iltot, who said that R. Tarfon was telling them only that if they killed someone, he was not required to endanger himself to save them.
Genaralizing to Saving Others at Risk to Ourselves
Two sefarim, Agudat Ezov and Shu”t Yad Eliyahu, saw this story as the basis for a more general claim, that Jews aren’t required to put themselves in danger to save other Jews. Netziv took the opposite view, that R. Tarfon’s justification for his refusal shows that had he been positive that they were innocent, he would have been obligated to hide them despite the danger.
Tzitz Eliezer himself had previously argued that these claims depend on the wording of the story, which differed for Rashi and Tosafot; here he adds that R. Tarfon was being asked to save a group of people, not an individual. In Orach Chayyim 574;5, Shulchan Aruch ruled that one who separates him/herself from a community in their time of trouble will not merit joining them in their time of restoration. Magen Avraham commented that that was where the person had the ability to help, either monetarily or physically.
Otherwise—and he took this from Yam shel Shlomo, who said it specifically about fleeing a plague—the person should save him/herself. [Yam shel Shlomo seems to see not leaving as a problem, as a failure to accept Hashem’s ruling that this place was not a place to stay; we are required to save ourselves from danger, if we can].
Tzitz Eliezer had adopted that view, that there’s no obligation, and perhaps it’s impermissible, to put oneself at risk to save others other than in war [war is an exception because it’s inherently risky; Tzitz Eliezer doesn’t get into all the details here, but both Yam shel Shlomo and Magen Avraham thought that if there’s a reasonable chance this person will successfully save others, than s/he must do so. I’m pretty sure Tzitz Eliezer didn’t mean to imply otherwise].
The Trolley Problem as an Avenue to a New Interpretation of R. Tarfon
Chazon Ish to Sanhedrin had wondered about the permissibility of redirecting an arrow (or bullet, bomb, or other vehicle of death) from a direction in which it will kill a group of people to where it will only kill one (that’s the trolley problem—if a trolley is about to crush a group of people, is it permitted to redirect it to where it will kill only one?).
His first instinct was that it should be allowed, since at the moment of redirection no one was being killed. On the other hand, he wrote, the person is directly causing someone else’s death (as opposed to where a Jew or group of Jews turns over one of their group to others who will kill him/her; while even that is generally not allowed, some allow it in the case of a person already liable for the death penalty). Chazon Ish leaves the question unresolved.
Saving Your Field By Redirecting Water
Tzitz Eliezer suggests another source to resolve the issue. Choshen Mishpat 388;2 has Rema ruling that if a person sees damage coming his/her way, s/he is allowed to redirect it (the case in the Gemara is that a flood is about to wash out a field, the person whose field is threatened can redirect the water, even though it will then damage someone else). Noda Bi-Yehuda added that that’s not only the person who owns the field being threatened, others can do it for him or her.[Before we get back to our case, that’s an important generalizable principle: in financial matters, we can save ourselves or others, even if it will cost a third party. That’s why I can buy and sell stocks, for example, even though my activities almost necessarily hurt others].
After more careful consideration, that’s only for financial damage. We might have thought financial damage was less likely to be permitted in such a way, since courts hold people liable for indirect financial damage but not indirect murder.
We Don’t Judge the Value of Life
Nonetheless, what courts do and don’t punish isn’t the same as what would be allowed as a proactive legal statement. To allow causing financial damage to others, indirectly, to save oneself, is much different than choosing who gets killed. In the latter case, the principle is that we don’t know which people are of more value, and therefore we cannot take action either way.
That’s true even for cases of many against one—while it’s intuitive to assume five people are more valuable in some way than one (and even more so were it a hundred, or a thousand, etc.), we don’t allow ourselves such calculations, and refrain from any action that would imply we know how to value one over another or others. (He notes that Rabbenu Yonah to Avodah Zarah said that explicitly).
Rashi to Ta’anit 18b says that Lulianus and Pappus, sacrificed themselves to save others (they admitted falsely to a capital crime, so the Roman king would not punish the whole community). There, however, they too were in danger. Another possibility [I think more likely, since it allows an outsider to intervene as well] is that they volunteered themselves, which we can easily imagine being permitted to save a group (although he had earlier doubted whether we would be allowed to endanger ourselves to save others; here, he seems to take for granted that it’s allowed, just not required. I think the difference is that, here, they were certain they could save the others, like the doctor who knows s/he can save others from plague, at risk to contracting the disease).
A Practical Example
Tzitz Eliezer wants to be clear that this isn’t just theoretical. Unfortunately, his example is unclear—he suggests that if a driver is about to hit a group of people, and backing up to avoid them will kill someone else, the driver cannot do anything other than try to stop (s/he cannot back up, in other words). I don’t understand what he means by backing up suddenly—if the car is out of control, how would the driver back up?
A more feasible case that fits what he seems to be saying is that the driver cannot stop but could swerve and hit only one person. Halachically, s/he would not be allowed to, since that’s deciding that that one person’s life is worth less than the group’s.
That’s true even if the new person is a terefah, with a physical injury that will kill him/her within a short period of time. As Tzitz Eliezer notes, that is an issue in hospitals, especially where life-saving equipment is being used by one patient but is needed for another; we cannot decide that the patient currently using it is going to die anyway and take it to save someone else [there was an episode of MAS*H where one patient needed a piece of aorta, while another doctor had a dying patient who would be able to give it up as soon as he died.
When that second doctor finally brought in the needed body part, the first one asked what took so long, and the second one answered “The guy who had it last was still using it.” We, too, do not save others by killing some, even if they’re about to die anyway].
Back to R. Tarfon
That line of reasoning offers a more logical explanation of what R. Tarfon meant by telling the putative killers to hide themselves. That sounds like advice we’d have assumed they could have figured out on their own. Based on our discussion so far, Tzitz Eliezer argues that he was telling them he could not take any action, either way.
He couldn’t hide them, because maybe they did it, and he’s not obligated or allowed to endanger himself to save possible criminals (but would be obligated to endanger himself to save an innocent group of people, it seems). But if they hid themselves, even if other Jews knew where, they would not be allowed to reveal that to the authorities, because that, too, would be taking action to prefer one person or group’s lives over another’s.[Were he to know they were murderers is a whole different issue, leaving much more room to say that not only wouldn’t R. Tarfon have hid them, he’d have told the authorities where they were. But that’s a different story].
In wrapping up one cycle of the study of Shas, Tzitz Eliezer takes a brief story and leads us into important philosophical and practical halachic reminders of one of the areas of life where we as Jews are not allowed to pretend we know well enough to make decisions. We try to save others when we can, but are also aware of our limitations, of where we can’t.