by R. Ronen Neuwirth
As we begin to emerge from lockdown and society gets used to our new routine, it is important to examine the halakhic ramifications of the new reality. The lockdown may be over but not the pandemic, which is still actively taking lives around the world. What are the halakhic guidelines for going out to public spaces for nonessential leisure activities, such as dinner at a restaurant, or going to the gym, a concert or the theater? How should we determine policies for reopening the shuls? The following is the beginning of a conversation, lehalacha velo lema’aseh.
Before discussing the possibilities, it is imperative to stress our duties to protect other people. No one has any right to do any activity that puts others at risk. Endangering other people is equivalent to transgressing one of the Torah’s most fundamental commandments – “you shall not murder.” Someone who is feeling unwell or has any suspicious symptoms must be careful not to endanger others, so should stay away from any social gathering or public place. Furthermore, anyone who wishes to engage in leisure activities must wear a mask at all times to protect others against the slightest chance that they are asymptomatic carriers of the virus.
Assuming that one follows all the mandatory health guidelines and protocols to protect other people, is it permissible to place oneself at risk for the sake of engaging in nonessential activities? Apparently, one is not permitted to place oneself in any situation of risk, as the Shulchan Arukh rules 1)Shulchan Arukh, Choshen Mishpat 427: 10. The source of this halakha is in the Rambam’s Mishneh Torah, Murderer and the Preservation of Life 11:5.:
“Anyone who violates these, and similar things, and says “I am risking myself and what do others have on me, or I do not care”, will be given lashes of rebellion and one who is protective of these will have a good blessing on him.”
Does the risk of catching COVID-19 fall under the category of this prohibition?
On the other hand, the Gemara discusses in a couple of places 2)Shabbat 129b; Ketuvot 29a; Yevamot 72a; Avodah Zarah 30b; Niddah 45a. the permissibility of taking risks when that is the common behavior of the masses. “But nowadays, when the masses disregard the danger [we apply the verse 3)Tehillim 116:6.] “G-d protects the simple.”” Could the fact the this has now become the common practice allow us to apply this to leisure activities? Could this argument also be utilized to permit reopening our shuls, on the basis that “G-d protects the simple”?
To review this dilemma, I wish to utilize an interesting discussion about the permissibility of elective cosmetic surgery. There are many halakhic and moral aspects to that debate, but I wish to focus on two elements that are relevant to our dilemma. One who wishes to undergo a cosmetic surgery is putting themselves in some danger, and taking an unnecessary risk, which could be compared to our dilemma. Furthermore, part of the motivation to undergo cosmetic surgery is the psychological pain that one may experience due to what might be perceived as a deformity. This could be compared to the stress and pressure that people have experienced in the past few months and, in that sense, leisure activities could serve to alleviate the stress of living through this pandemic. So, can we pasken that distress and mental health considerations might justify the risks involved in leisure activities?
Rabbi Avraham Bornstein of Sochaczew, in his book of responsa Avnei Nezer 4)Rabbi Avraham Bornstein of Sochaczew (1838-1910), Responsa Avnei Nezer, Yoreh De’ah 321., published at the beginning of the 20th century, prohibited elective surgery to straighten the crooked leg of a newborn infant due to the risks involved, even where the doctors could guarantee that it is a safe operation. His explanation was that any operation is regarded as a life-endangering procedure, and since it is nonessential it is prohibited. The medical world has dramatically developed since those days and, already in the 1960s, many prominent poskim 5)Responsa Chelkat Yaakov, Choshen Mishpat 31; Rabbi Menashe Klein, Responsa Mishneh Halakhot 4:246; Rabbi Ovadia Yosef, Responsa Yabi’a Omer Vol. 8, Choshen Mishpat 12. Rabbi Moshe Feinstein also permitted undergoing cosmetic surgery, but he did not discuss the risk factor rather the prohibition of Chabbalah, i.e. wounding the body, cf. Responsa Iggerot Moshe, Choshen Mishpat 2:66. Among the rabbis who did not permit is Rabbi Eliezer Waldenburg in Responsa Tzitz Eliezer 11:41 and Rabbi Yitzhak Yaakov Weiss in Responsa Minchat Yitzchak 6:105:2. claimed that it is obvious nowadays that the risk is minimal and such operations should be permitted. Rav Mordechai Yaakov Breish 6)Rabbi Mordechai Yaakov Breish, Rabbi of the Haredi community of Zurich (1838-1910), Responsa Chelkat Yaakov, Choshen Mishpat 31. explains that a tolerable risk is not included in the prohibition of endangering oneself:
“Would it be conceivable to prohibit traveling in a car or airplane, even though we evidently see and know how many accidents and mishaps happen to those who travel in them? Should we prohibit this because one should not enter a dangerous situation? Since the masses trample on it, it is permissible.”
More than a century before this discussion about cosmetic surgery took place, Rabbi Yaakov Ettlinger 7)Rabbi Yaakov Ettlinger of Altona (1798-1871), Responsa Binyan Zion 137. examined a different dilemma involving taking a rational approach to weighing risks. He ruled that it is permissible to take a risk that most people would consider tolerable, and he proved it from Birchat HaGomel. Two of the four categories of people who need to recite Birchat HaGomel are seafarers and the desert explorers. If even a small risk is prohibited, how could they sail the seas or walk into the desert in the first place? Rabbi Ettlinger explains that when danger is not immediate and it is usually safe to engage in an activity, it is permissible:
“When there is no immediate danger, rather only a concern for future danger, we follow the majority…Otherwise, how could one sail in the sea, or walk into the desert?”
The other relevant discussion is the validity of considerations of emotional pain or distress involved in refraining from social activity, particularly once the authorities permit them under certain safety guidelines. The Gemara in Masekhet Shabbat 8)Shabbat 50b permits one to scrape scabs to alleviate physical pain, although the procedure entails wounding one’s body, an action that is normally prohibited. However, the Gemara prohibits this action for the sake of beatification:
“One may scrape off the dirt scabs and wound scabs that are on his flesh because of the pain; [but] if [it is done] in order to beautify oneself, it is forbidden.”
However, Tosafot comment on this Gemara that wounding oneself for beatification would be permitted if it was meant to alleviate mental pain 9)Tosafot, Shabbat 50b, s.v. “Bishvil Tza’aro”:
“If the only pain that he suffers is that he is embarrassed to walk among people then it is permissible, for there is no greater pain than this.”
Based on the principle laid out by the Tosafot, Rabbi Breish concluded that: “When one undergoes cosmetic surgery to alleviate the [emotional] pain, it is permissible”.
Since one is allowed to take a tolerable risk for the sake of emotional need. as long as one fully complies with the guidelines of the authorities, it should be permissible to engage in leisure activities, just as one is allowed to go on vacation and drive a car despite the risks of having an accident. Enjoying relaxing activities during stressful times is not really a luxury but rather an important emotional need, so one needs to use honest judgment when assessing the risks of any such activity in order to find the correct balance between staying safe and allowing yourself to relax. (Of course, if the environment does not feel safe, you may find yourself becoming more stressed, defeating the object of the exercise!)
From Restaurants to Minyanim
Alongside the analysis of whether it is permitted to go to a restaurant, we could use an analysis based on Kal Va’Chomer (an extrapolation from a minor premise to a major one) to consider whether an individual can permit himself or herself to go to shul to daven with a Minyan, and hence whether we as a community should be reopening our shuls, since for many people, attending synagogue and reconnecting with their community meets an acute spiritual and emotional needs.
However, the analysis above is irrelevant to the dilemma of reopening the shuls. When it comes to Pikuach Nefesh, there is a major distinction between deciding on a private case and setting public policy. Although an individual is allowed to take a tolerable risk, the decision taken by a community or public entity to take a similar risk, the statistical chances that individuals might be hurt are greater. Again, the issue of exposing other people to risk always overrides the question of whether an individual risks endangering himself.
The issue of public policy regarding Pikuach Nefesh is discussed in Chapter 8 of my new book, The Narrow Halakhic Bridge – A Vision of Jewish Law in the Post-Modern Age (available at special 50% discount). There I address the psak of Rabbi Shaul Yisraeli 10)Rabbi Shaul Yisraeli (1909-1995), Rabbi of Kfar HaRo’eh, Rosh Yeshivah of Yeshivat Merkaz HaRav, a dayan and member of the Executive Council of Israel’s Chief Rabbinate, who allowed police activity on Shabbat even if most of the activity was not in life-endangering cases. He explained that, since statistically there will certainly sometimes be cases of clear Pikuach Nefesh, all police activity should be regarded as “enabling Pikuach Nefesh”. In his words 11)Amud HaYemini 17:8, p.213.:
“For even if there is a chance of one in a thousand, saving one life at some time is enough to permit and to obligate us to do these activities that violate Shabbat, for they enable this act of saving. If we do not do them, we will not be able to effect this act of saving”.
I believe that the same rationale works in the opposite direction. Shul is a place designated for public gatherings and social closeness, and reopening shuls is more likely to endanger lives, since statistically it is almost certain that there will be carriers of the virus in some of the shuls. Especially during the summer, when outdoor minyanim may even be possible, it is preferable for our communities to take extra care and find safer solutions before allowing indoor minyanim as a principle of public policy.
Going with the Majority
The difference between statistical considerations concerning individual policy and public policy could be compared to one of the fascinating deliberations in the Gemara 12)Masekhet Ketubot 15a about when the statistical majority should be followed. The Gemara provides two principles:
- Man de’Parish me’Ruba Parish – anything that is separated is assumed to have come from the majority.
- Kol Kavu’a ke’Mechtza Al Mechtza Dami – any item of uncertain status that remains in its fixed location is viewed as an uncertainty that is equally balanced (50:50).
The classic example is the following 13)Ibid.:
“Nine stores all sell [kosher] meat and one other store sells meat of unslaughtered animal carcasses, and a person bought meat from one of them but he does not know from which he bought the meat. The meat is prohibited (since any item fixed in its place is that of an uncertainty that is equally balanced and one does not follow the majority).
And if the meat was found outside the stores – we follow the majority (and hence the meat is kosher).”
The first principle utilizes a simple statistical rule of following the majority, since it evaluates an individual object that was separated from the majority. The second principle, however, does not evaluate the individual object but rather the collective situation, and therefore, in each store there is a chance of 50:50 that the meat is non-kosher, since the status of the store is unknown.
The same rationale could be utilized to distinguish between individual cases of risk-taking during our pandemic, and public policy decisions. The collective situation should be examined carefully to minimize the chances that even one person – the minority – would be hurt.
I hope and pray that a vaccine will be found quickly so that we can soon return to our normal routine. Until then, while public restrictions are slowly being unlocked and removed, we must monitor the situation with caution, common sense and intellectual honesty, so as to manage risks to ourselves and, most importantly, so as not place anyone else’s health in danger.
Endnotes [ + ]
|1.||↑||Shulchan Arukh, Choshen Mishpat 427: 10. The source of this halakha is in the Rambam’s Mishneh Torah, Murderer and the Preservation of Life 11:5.|
|2.||↑||Shabbat 129b; Ketuvot 29a; Yevamot 72a; Avodah Zarah 30b; Niddah 45a.|
|4.||↑||Rabbi Avraham Bornstein of Sochaczew (1838-1910), Responsa Avnei Nezer, Yoreh De’ah 321.|
|5.||↑||Responsa Chelkat Yaakov, Choshen Mishpat 31; Rabbi Menashe Klein, Responsa Mishneh Halakhot 4:246; Rabbi Ovadia Yosef, Responsa Yabi’a Omer Vol. 8, Choshen Mishpat 12. Rabbi Moshe Feinstein also permitted undergoing cosmetic surgery, but he did not discuss the risk factor rather the prohibition of Chabbalah, i.e. wounding the body, cf. Responsa Iggerot Moshe, Choshen Mishpat 2:66. Among the rabbis who did not permit is Rabbi Eliezer Waldenburg in Responsa Tzitz Eliezer 11:41 and Rabbi Yitzhak Yaakov Weiss in Responsa Minchat Yitzchak 6:105:2.|
|6.||↑||Rabbi Mordechai Yaakov Breish, Rabbi of the Haredi community of Zurich (1838-1910), Responsa Chelkat Yaakov, Choshen Mishpat 31.|
|7.||↑||Rabbi Yaakov Ettlinger of Altona (1798-1871), Responsa Binyan Zion 137.|
|9.||↑||Tosafot, Shabbat 50b, s.v. “Bishvil Tza’aro”|
|10.||↑||Rabbi Shaul Yisraeli (1909-1995), Rabbi of Kfar HaRo’eh, Rosh Yeshivah of Yeshivat Merkaz HaRav, a dayan and member of the Executive Council of Israel’s Chief Rabbinate|
|11.||↑||Amud HaYemini 17:8, p.213.|
|12.||↑||Masekhet Ketubot 15a|