by R. Gidon Rothstein
5 Tevet: Some Surprising Limits on Saving Lives, According to R. Yaakov Ettlinger
[Click here for the audio version].
In two remarkable responsa, R. Yaakov Ettlinger takes a surprising stand on the limits of saving one’s own life. Aside from the specific issue, the responsum also takes on a broader question I find continuingly interesting to ponder, how we understand the interplay between Aggadah and halachah, between what seem more metaphorical, allegorical, or hyperbolic elements of the Talmud and those meant strictly legally.
Embarrassing Someone to Save One’s Own Life
The question R. Ettlinger set himself, in Binyan Tziyyon 172, dated 4 Tishrei 5613 (1852) was whether one could save one’s life by embarrassing someone else. This might seem open and shut, since many of our contemporaries spout the rule pikuach nefesh, saving a life, allows us to do whatever is necessary. Unfortunately, that clearly exaggerates, since I presume we all know we would not be allowed to worship idols to save our lives (many of us were raised connecting the story of Hannah and her seven sons to Chanukkah, where each of the sons died rather than worship an idol). Once we know of one exception, there might be others.
Baba Metzi’a 58b compares embarrassing someone in public to murder. Since murder, too, is a crime we are not allowed to transgress to save ourselves, R. Ettlinger wonders whether this means embarrassing someone counts as a kind of proto-murder, also prohibited as a way to save one’s life. However, Pesachim 118a shows such statements are often hyperbole, since it compares one who works inappropriately on Chol Ha-Mo’ed, the intermediate days of Pesach or Sukkot, to one who worships idols. No one would imagine a Jew would have to forfeit his or her life to avoid working on Chol Ha-Mo’ed.
We need to know how to distinguish hyperbolic Talmudic statements (such as the Chol Ha-Mo’ed one) from more literal comparisons. [R. Ettlinger did not even suggest a Mishnah in Avot might be relevant, although he must have known it. Mishnah 3;11 cites R. El’azar Ha-Modai as saying one who embarrasses someone else in public, or treats Chol Ha-Mo’ed too mundanely—plus a few other examples—has no share in the World to Come. We rarely know what silence means, but I suspect the consequence coming only in the next world told R. Ettlinger he could not use the statement for this-world halachic lessons.]
Tamar’s Refusal to ‘Out’ Yehudah
He settles on Berachot 43b, where R. Hana b. Bizna says in the name of R. Shimon Chasida, or, according to some, R. Yochanan says in the name of R. Shimon b. Yochai, that it would be preferable to throw oneself into a fiery furnace rather than embarrass another in public. The Gemara cites Tamar (from Bereshit 38) as proof, since she did not declare Yehudah the father of her unborn child as she was about to be burned for adultery. She sent him the identifying items he had left with her, leaving him to choose whether to admit his involvement.
Tosafot Ketubbot 67 grounds the idea in verse 25, which spells mutset, [she] was being taken out [to be killed], without an aleph. The spelling in front of us could read as a form of the verb for being lit on fire. R. Ettlinger thinks Tosafot explains what told the Talmud she was willing to die rather than embarrass Yehudah—without the defective spelling, we might have thought she sent the proof to Yehudah with enough time she could reveal the truth herself if he declined. Just as we first try to disable a potential murderer before we stop him, we might have thought Tamar wished to avoid embarrassing Yehudah, but would have done so if he left her no other option.
With the spelling of mutsat, she was on the verge of being burned, we are told—R. Ettlinger claims—there was no time to save herself if Yehudah chose not to. To him, this proves we are discussing halachic fact.
An Extension of Murder
Tosafot in Sotah 10 wonders embarrassing others in public isn’t included in the traditional list of sins for which one must be killed rather than transgress, and ascribes it to the sin not being explicit in the Biblical text. The idea potentially means there are many other sins we cannot transgress regardless of danger to our lives; however, R. Ettlinger rejects the answer, because he feels this crime is explicit in Vayikra 19;17, where the Torah tells us to remonstrate with fellow Jews and then warns us, ve-lo tisa ‘alav chet, to be careful not to commit a sin as we do.
He prefers the possibility, first advanced by Rabbenu Yonah in Sha’arei Teshuvah III;137-141, who said embarrassing another person is avak shefichut damim, has the sense of being murder. Worship of powers other than Hashem and wrongful sexuality both have such avak actions [using the wood of an Asherah tree or looking at a woman naked were examples he gave for the other two], embarrassing someone seemed to Rabbenu Yonah an avak of murder. R. Ettlinger reminds us Shulchan Aruch codifies the examples Rabbenu Yonah gave for extensions of the first two, but not this one [I would have thought the omission counted as evidenceShulchan Aruch and Rema did not accept Rabbenu Yonah’s idea, but R. Ettlinger does not].
As a final point, he defines public embarrassment as in front of three people; as far as he understands the rules, a Jew would not be able to save his/her life by embarrassing a fellow-Jew in front of two or more other Jews.
What Leads to Laws as Opposed to Morals
By 5 Tevet of the same year (three months later, in other words), he had been contacted by a colleague, and their discussion focused on how to derive halachot from such Talmudic statements. Terumat haDeshen, for example, thought we do not derive halachah from aggadic pronouncements, which would mean a comment about the severity of embarrassing others could not translate into an otherwise unknown halachic rule.
R. Ettlinger thought his correspondent read Terumat Ha-Deshen too broadly. In his case, the aggadic statement contradicted well-known halachot (or, at least, were occasionally in tension with it). R. Ettlinger cites Kol HaRamaz (I think it’s a Mishnah commentary published in Amsterdam in 1719), who said we do derive halachic conclusions from less obviously legal sections of the Gemara, as long as no openly halachic passages are at odds with it, much as we do with the Zohar and other Kabbalistic sources. R. Ettlinger sees our Gemara about being burned rather than embarrassing others is even more likely to be intended as halachah, since there is a source verse added.
Was Tamar Obligated to Follow Halachah?
To understand R. Ettlinger’s respondent’s last question, we have to remind ourselves of a statement in the last Mishnah in Kiddushin and a similar one ascribed to Rav in Yoma 28b, both of which claimed Avraham Avinu kept all of the Torah. R. Ettlinger points to Ramban, who picked up on Kiddushin 18a’s reference to Esav as a Yisrael mumar, an apostate Jew, to suggest all Avraham’s descendants followed the Torah as well.
Parshat Derachim, a work by R. Yehuda Rosanes (author of Mishneh le-Melech, an important work built around Rambam’s Mishneh Torah), investigated the question at length, collecting the ideas of authors who assumed the Patriarchs had the full status of Jews (to allow leniencies as well as stringencies) before the giving of the Torah. Were we to accept their view, Tamar’s actions could show us when Jews are required to give up their lives; if the statement was not literal, the Patriarchs and their families did not keep all halachot in the technical sense, her choices tell us less about what we must do.
The topic is too extensive to discuss here. I will note Rambam seems to have taken the Talmudic statement less than fully literally. R. Ettlinger (a community rabbi in Altona—which at the time included the right to act as a civil judge) was not a cloistered student who only knew the world of Torah, and yet he took the other view (more in line with Tosafot), aggadic statements could and should be taken seriously unless without evidence otherwise.
In this instance, it fueled his conclusion that we may not knowingly embarrass someone else, even if we will then lose our lives. Whether or not our halachic advisor would agree with him, studying his responsum has enlightened us on several issues of Jewish law: the expanded list of transgressions we’d have to give our lives rather than commit; the importance of avoiding embarrassing others, whether this example is halachically accepted or not; and the role of seemingly metaphoric, hyperbolic, or allegorical statements in shaping our understanding of what it means to be a Jew.
Abandoning a Neighborhood That’s Changing
I’ve already come close to my word limit per week, but I want to briefly note Iggerot Moshe Choshen Mishpat 2;22, from 5 Tevet 5732 (1971). The New York City Housing Authority (NYCHA) was planning a housing project in Forest Hills, alarming the local Jewish communities (which R. Moshe understood to include a million Jews), who were sure the projects would bring an undesirable and dangerous element to their neighborhood. Ironically, Wikipedia reports that the Forest Hills Co-operative Houses, as the project came to be known, came to house mostly elderly Jews, until the early 1990s, when the city worked to adjust the makeup.
R. Moshe, though, agreed with their assumption the population of these projects would bring danger and problems to the local Jewish community. He therefore thought it prohibited to aid the city in this project, since it would damage the Jewish community of Forest Hills. He does not make a point of it, but this is a ruling with far-reaching consequences—Jews who worked for the city (and especially NYCHA) and followed his ruling would have to avoid being involved with this project, contractors or builders or real estate people would have to refrain from bidding to work on it, and so on.
Nor could the residents leave, he said, invoking a phrase Sotah 44b uses regarding war, techillat nefilah nisah, the first step in losing a war is when people flee. In war, military leaders were allowed to cut down (physically) anyone who attempted to run away. In this situation, R. Moshe seems to be saying, as soon as a threat presents to a community, all the members must join in fighting off the threat, whether by protesting or lobbying, but also by maintaining the solidarity of staying there. This is especially because those who find greener pastures first are often the ones with the resources, leaving behind those without the resources for a move.
I cannot imagine he meant Jews may never leave their communities. Rather, when those communities were facing trouble, everyone had to stay to fight. Presumably, once the projects got built and housed mostly elderly people (Jewish ones at that), R. Moshe would have again allowed moving. While the trouble was brewing, though, he saw it differently.
Who Gets Left Holding the Bag?
R. Pinchas Zvichi, author of Responsa Ateret Paz, adds important notes to this question. Without disputing R. Moshe’s conclusion, he notes in the real world, it is often more complex. For example—he was talking about Akko, where the Israeli Arab population was growing—even if all the rabbis agreed Jews should not sell and leave (Akko or Forest Hills), many Jews would not listen. The observant Jews are not obligated to let themselves get left or trapped in a dying neighborhood, with declining property values.
He does not make the point, but it seems analogous to staying in a battlefield even once enough others have fled that only a miracle can lead to victory, and no miracle is forthcoming. In residing in communities too, R. Zvichi suggests, we need to try our hardest to keep a threatened community viable and sustainable, but once the battle is lost, we need no longer add wasted efforts.
The specific conclusions aside, R. Moshe takes our communal responsibilities to be more expansive, and more able to obligate individuals, than we often do. Living somewhere is not only about where we feel comfortable or happy, it’s about joining a community, contributing to its growth and sustainability, and defending it when it is threatened.
Two ways in which we are not as free to do what we want as we might think: our options to save our lives and our options to move neighborhoods when our current one is under attack.