Pikuach Nefesh Is/Is Not An Overriding Halakhic Value

blood

I’ll might take this post down because maybe I’m getting it terribly wrong. But I’m going to give it a shot. The principle of Pikuch Nefesh (saving life) is a well-known and a cardinal principle of Jewish law. The notion is that saving life trumps everything, and that in a case of collision, the law is that life trumps law. The locus classicus for this principle is in tractate Yoma where we learn that Pikuah Nefesh precedes or trumps (doche) Shabbat. Liberal Jews, including most modern orthodox Jews, are justifiably proud of this text. It seems to stand as a banner to the flexible and life affirming character of the halakhic system. But is it the cardinal principle of Jewish law? As a concept, Pikuach Nefesh is the most reified of halakhic objects, a reification that is enough to raise critical doubts, not about Halakah, but the claims that modern Jews make about it.

Questions about the value of Pikuach Nefesh and its place in the system of Halakhah build upon the starting point that that the halakhic system is based on value pluralism, that its system contains competing standards and goods. This means that there is no such thing as a single, self-standing norm, not even life. The first thing to note is that the principle of Pikuach Nefesh bangs up against the problem of grave sin (this is a very well known caveat). Second, the examples of Pikuach Nefesh are of a particular sort, referring in the main to the transgression of negative mitzvot. Pikuach Nefesh precedes negative commandments like the prohibition of Sabbath labors, or, in one case, the eating of forbidden food (e.g. food on Yom Kippur, pork). 

Note, if you want to skip the texts, scroll down to [5] for my takeaway.

[1]

The key line in the text below is that “nothing stands before Pikuach Nefesh.” This maxim is universal, or would be universal, were there not, famously, critical exceptions to the rule. Nothing stands before saving life, except the three cardinal sins of idolatry, forbidden sexual relations, and murder. Further complicating the the discussion around these conflicting norms is that, excluding the case of murder, exceptions to exceptions are introduced by the gemara in tractate Sanhedrin. The gemara there will suggest that one could, in certain cases, transgress even these transgression in order to save ones’ own life (see below in section #4).

Yoma 82a, גמ׳ ת”ר עוברה שהריחה בשר קודש או בשר חזיר תוחבין לה כוש ברוטב ומניחין לה על פיה אם נתיישבה דעתה מוטב ואם לאו מאכילין אותה רוטב עצמה ואם נתיישבה דעתה מוטב ואם לאו מאכילין אותה שומן עצמו שאין לך דבר שעומד בפני פקוח נפש חוץ מע”ז וגילוי עריות ושפיכות דמים

GEMARA: The Sages taught in a baraita: With regard to a pregnant woman who smelled consecrated meat or pig meat and craved those specific foods, one inserts a thin reed into the juice of that item and places it on her mouth. If her mind become settled with that, it is well. And if not, one feeds her the gravy itself of that forbidden food. If her mind becomes settled with that, it is well. And if not, one feeds her the fat of the forbidden food itself, as there is no halakha that stands in the way of saving a life except for the prohibitions against idol worship, and forbidden sexual relationships, and bloodshed.

[2]

Related to Pikuach Nefesh is another formula, “Sefek Nefashot” (uncertainty about life) overriding (doche) Shabbat. In these passages, there is no doubt whatsoever about the priority of life over against the performance of a negative mitzvot relating to Shabbat in particular. It is, indeed, praiseworthy to violate the Sabbath in these cases.

Yoma 84b: מפני שספק נפשות הוא וכו’ ל”ל תו למימר וכל ספק נפשות דוחה את השבת אמר רב יהודה אמר רב לא ספק שבת זו בלבד אמרו אלא אפילו ספק שבת אחרת

The mishna states that one with pain in his throat should be given medicine on Shabbat because it is a case of uncertainty concerning a life-threatening situation. The Gemara asks: Why do I need to say furthermore: And any case of uncertainty concerning a life-threatening situation overrides Shabbat? Rav Yehuda said that Rav said: They stated this not only in a case where there is uncertainty with regard to this Shabbat, but even if the uncertainty is with regard to a different future Shabbat.

היכי דמי כגון דאמדוה לתמניא יומי ויומא קמא שבתא מהו דתימא ליעכב עד לאורתא כי היכי דלא ניחול עליה תרי שבתא קמ”ל

What are the circumstances in which uncertainty would arise as to whether or not his life will be in danger in the future? They are a case where doctors assess that an ill person needs a certain treatment for eight days, and the first day of his illness is Shabbat. Lest you say: He should wait until evening and begin his treatment after Shabbat so they will not need to desecrate two Shabbatot for his sake, therefore it teaches us that one must immediately desecrate Shabbat for his sake. This is the halakha, despite the fact that an additional Shabbat will be desecrated as a result, because there is uncertainty about whether his life is in danger.

תניא נמי הכי מחמין חמין לחולה בשבת בין להשקותו בין להברותו ולא שבת זו בלבד אמרו אלא לשבת אחרת ואין אומרים נמתין לו שמא יבריא אלא מחמין לו מיד מפני שספק נפשות דוחה את השבת ולא ספק שבת זו אלא אפי’ ספק שבת אחרת

That was also taught in a baraita: One heats water for an ill person on Shabbat, whether to give him to drink or to wash him, since it might help him recover. And they did not say it is permitted to desecrate only the current Shabbat for him, but even a different, future Shabbat. And one must not say: Let us wait and perform this labor for him after Shabbat, perhaps he will get well in the meantime. Rather, one heats it for him immediately because any case of uncertainty concerning a life-threatening situation overrides Shabbat. And this is so not only with regard to uncertainty whether his life is in danger on the current Shabbat, but even in a case of uncertainty with regard to danger on a different Shabbat.

ואין עושין דברים הללו לא ע”י נכרים ולא ע”י כותיים אלא ע”י גדולי ישראל ואין אומרין יעשו דברים הללו לא ע”פ נשים ולא ע”פ כותיים אבל מצטרפין לדעת אחרת

And these acts should not be performed by gentiles or Samaritans but should be done by the greatest of the Jewish people, i.e., their scholars, who know how to act properly. And one does not say: These actions may be performed based on the advice of women or Samaritans, since they are not considered experts able to declare a person ill enough to override Shabbat. However, the opinions of these people do combine with an additional opinion, meaning that if there is a dispute, their opinions may be considered when coming to a decision.

ת”ר מפקחין פקוח נפש בשבת והזריז ה”ז משובח ואין צריך ליטול רשות מב”ד הא כיצד ראה תינוק שנפל לים פורש מצודה ומעלהו והזריז ה”ז משובח ואין צריך ליטול רשות מב”ד ואע”ג דקא צייד כוורי ראה תינוק שנפל לבור עוקר חוליא ומעלהו והזריז ה”ז משובח ואין צריך ליטול רשות מב”ד אע”ג דמתקן דרגא

The Sages taught in a baraita: One engages in saving a life on Shabbat, and one who is vigilant to do so is praiseworthy. And one need not take permission from a court but hurries to act on his own. How so? If one sees a child who fell into the sea, he spreads a fisherman’s net and raises him from the water. And one who is vigilant and acts quickly is praiseworthy, and one need not seek permission from a court, although in doing so he catches fish in the net as well. Similarly, if one sees a child fall into a pit and the child cannot get out, he digs part of the ground out around the edge of the pit to create a makeshift step and raises him out. And one who is vigilant and acts quickly is praiseworthy, and one need not seek permission from a court, although in doing so he fashions a step.

ראה שננעלה דלת בפני תינוק שוברה ומוציאו והזריז ה”ז משובח ואין צריך ליטול רשות מב”ד ואע”ג דקא מיכוין למיתבר בשיפי מכבין ומפסיקין מפני הדליקה בשבת והזריז ה”ז משובח ואין צריך ליטול רשות מב”ד ואע”ג דקא ממכיך מכוכי

Similarly, if one sees that a door is locked before a child and the child is scared and crying, he breaks the door and takes the child out. And one who is vigilant and acts quickly is praiseworthy, and one need not seek permission from a court, although he intends to break it into boards to be used later. Similarly, one may extinguish a fire by placing a barrier of metal or clay vessels filled with water in front of it on Shabbat when life is endangered. And one who is vigilant and acts quickly is praiseworthy, and one need not seek permission from a court, although he leaves the coals, which can be used for cooking after Shabbat.

[3]

In the following passage, the rabbis derive scriptural support for the notion that Pikuach Nefesh precedes Shabbat.

Yoma 85a. וכבר היה ר’ ישמעאל ורבי עקיבא ורבי אלעזר בן עזריה מהלכין בדרך ולוי הסדר ורבי ישמעאל בנו של רבי אלעזר בן עזריה מהלכין אחריהן נשאלה שאלה זו בפניהם מניין לפקוח נפש שדוחה את השבת

The Gemara relates: It once happened that Rabbi Yishmael, and Rabbi Akiva, and Rabbi Elazar ben Azarya were walking on the road, and Levi HaSadar and Rabbi Yishmael, son of Rabbi Elazar ben Azarya, were walking respectfully behind them, since they were younger and did not walk alongside their teachers. This question was asked before them: From where is it derived that saving a life overrides Shabbat?

The scriptural derivations for the principle that “Pikuach Nefesh precedes Shabbat” are the subject of a conversation on the road between this group of tanaim. But the gemara requires the intervention of Shmuel, a Babylonian amora to decide the matter with the requisite finality.

Rav Yehuda said that Shmuel said: If I would have been there among those Sages who debated this question, I would have said that my proof is preferable to theirs, as it states: “You shall keep My statutes and My ordinances, which a person shall do and live by them” (Leviticus 18:5), and not that he should die by them. In all circumstances, one must take care not to die as a result of fulfilling the mitzvot (Yoma 85b).

Israel is supposed to live by the law, not die by it.

[4]

Exceptions to the exceptions, namely when one can violate the rules against idolatry and illicit sexual relations. The discussion is preceded by long discussions that permit the killing of a person to keep them from sin. The sins are sabbath violations, rape, and murder.

But the main text that speaks to our concern starts here:

Sanhedrin 74a-b The Gemara now considers which prohibitions are permitted in times of mortal danger. Rabbi Yoḥanan says in the name of Rabbi Shimon ben Yehotzadak: The Sages who discussed this issue counted the votes of those assembled and concluded in the upper story of the house of Nitza in the city of Lod: With regard to all other transgressions in the Torah, if a person is told: Transgress this prohibition and you will not be killed, he may transgress that prohibition and not be killed, because the preserving of his own life overrides all of the Torah’s prohibitions. This is the halakha concerning all prohibitions except for those of idol worship, forbidden sexual relations, and bloodshed. Concerning those prohibitions, one must allow himself to be killed rather than transgress them.

ועבודת כוכבים לא והא תניא א”ר ישמעאל מנין שאם אמרו לו לאדם עבוד עבודת כוכבים ואל תהרג מנין שיעבוד ואל יהרג ת”ל (ויקרא יח, ה) וחי בהם ולא שימות בהם

The Gemara asks: And should one not transgress the prohibition of idol worship to save his life? But isn’t it taught in a baraita: Rabbi Yishmael said: From where is it derived that if a person is told: Worship idols and you will not be killed, from where is it derived that he should worship the idol and not be killed? The verse states: “You shall keep My statutes and My judgments, which a person shall do, and he shall live by them” (Leviticus 18:5), thereby teaching that the mitzvot were given to provide life, but they were not given so that one will die due to their observance.

יכול אפילו בפרהסיא תלמוד לומר (ויקרא כב, לב) ולא תחללו את שם קדשי ונקדשתי

The baraita continues: One might have thought that it is permitted to worship the idol in this circumstance even in public, i.e., in the presence of many people. Therefore, the verse states: “Neither shall you profane My holy name; but I will be hallowed among the children of Israel: I am the Lord Who sanctifies you” (Leviticus 22:32). Evidently, one is not required to allow himself to be killed so as not to transgress the prohibition of idol worship when in private; but in public he must allow himself to be killed rather than transgress.

אינהו דאמור כר”א דתניא ר”א אומר (דברים ו, ה) ואהבת את ה’ אלהיך בכל לבבך ובכל נפשך ובכל מאדך אם נאמר בכל נפשך למה נאמר בכל מאדך ואם נאמר בכל מאדך למה נאמר בכל נפשך

The Gemara answers: Those in the upper story of the house of Nitza stated their opinion in accordance with the opinion of Rabbi Eliezer. As it is taught in a baraita that Rabbi Eliezer says: It is stated: “And you shall love the Lord your God with all your heart, with all your soul, and with all your might” (Deuteronomy 6:5). If it is stated: “With all your soul,” why is it also stated: “With all your might,” which indicates with all your material possessions? And if it is stated: “With all your might,” why is it also stated: “With all your soul”? One of these clauses seems to be superfluous.

אם יש לך אדם שגופו חביב עליו מממונו לכך נאמר בכל נפשך ואם יש לך אדם שממונו חביב עליו מגופו לכך נאמר בכל מאדך

Rather, this serves to teach that if you have a person whose body is more precious to him than his property, it is therefore stated: “With all your soul.” That person must be willing to sacrifice even his life to sanctify God’s name. And if you have a person whose property is more precious to him than his body, it is therefore stated: “With all your might.” That person must even be prepared to sacrifice all his property for the love of God. According to the opinion of Rabbi Eliezer, one must allow himself to be killed rather than worship an idol.

גילוי עריות ושפיכות דמים כדרבי דתניא רבי אומר (דברים כב, כו) כי כאשר יקום איש על רעהו ורצחו נפש כן הדבר הזה וכי מה למדנו מרוצח

From where is it derived that one must allow himself to be killed rather than transgress the prohibition of forbidden sexual relations and the prohibition of bloodshed? This is in accordance with the opinion of Rabbi Yehuda HaNasi. As it is taught in a baraita: Rabbi Yehuda HaNasi says: With regard to the rape of a betrothed young woman it is written: “But you shall do nothing to the young woman; the young woman has committed no sin worthy of death; for as when a man rises against his neighbor, and slays him, so too with this matter” (Deuteronomy 22:26). But why would the verse mention murder in this context? But what do we learn here from a murderer?

מעתה הרי זה בא ללמד ונמצא למד מקיש רוצח לנערה המאורסה מה נערה המאורסה ניתן להצילו בנפשו אף רוצח ניתן להצילו בנפשו

Now, the mention of murder came in order to teach a halakha about the betrothed young woman, and it turns out that, in addition, it derives a halakha from that case. The Torah juxtaposes the case of a murderer to the case of a betrothed young woman to indicate that just as in the case of a betrothed young woman one may save her at the cost of the rapist’s life, so too, in the case of a murderer, one may save the potential victim at the cost of the murderer’s life.

ומקיש נערה המאורסה לרוצח מה רוצח יהרג ואל יעבור אף נערה המאורסה תהרג ואל תעבור

And conversely, the Torah juxtaposes a betrothed young woman to a murderer to indicate that just as with regard to a potential murderer, the halakha is that if one was ordered to murder another, he must be killed and not transgress the prohibition of bloodshed, so too, with regard to a betrothed young woman, if she is faced with rape, she must be killed and not transgress the prohibition of forbidden sexual relations.

רוצח גופיה מנא לן סברא הוא דההוא דאתא לקמיה דרבה ואמר ליה אמר לי מרי דוראי זיל קטליה לפלניא ואי לא קטלינא לך אמר ליה לקטלוך ולא תיקטול מי יימר דדמא דידך סומק טפי דילמא דמא דהוא גברא סומק טפי

The Gemara asks: From where do we derive this halakha with regard to a murderer himself, that one must allow himself to be killed rather than commit murder? The Gemara answers: It is based on logical reasoning that one life is not preferable to another, and therefore there is no need for a verse to teach this halakha. The Gemara relates an incident to demonstrate this: As when a certain person came before Rabba and said to him: The lord of my place, a local official, said to me: Go kill so-and-so, and if not I will kill you, what shall I do? Rabba said to him: It is preferable that he should kill you and you should not kill. Who is to say that your blood is redder than his, that your life is worth more than the one he wants you to kill? Perhaps that man’s blood is redder. This logical reasoning is the basis for the halakha that one may not save his own life by killing another.

כי אתא רב דימי א”ר יוחנן לא שנו אלא שלא בשעת גזרת המלכות) אבל בשעת גזרת המלכות אפי’ מצוה קלה יהרג ואל יעבור

When Rav Dimi came from Eretz Yisrael to Babylonia, he said that Rabbi Yoḥanan said: The Sages taught that one is permitted to transgress prohibitions in the face of mortal danger only when it is not a time of religious persecution. But in a time of religious persecution, when the gentile authorities are trying to force Jews to violate their religion, even if they issued a decree about a minor mitzva, one must be killed and not transgress.

כי אתא רבין א”ר יוחנן אפי’ שלא בשעת גזרת מלכות לא אמרו אלא בצינעא אבל בפרהסיא אפי’ מצוה קלה יהרג ואל יעבור

When Ravin came from Eretz Yisrael to Babylonia, he said that Rabbi Yoḥanan said: Even when it is not a time of religious persecution, the Sages said that one is permitted to transgress a prohibition in the face of mortal danger only when he was ordered to do so in private. But if he was ordered to commit a transgression in public, even if they threaten him with death if he does not transgress a minor mitzva, he must be killed and not transgress.

מאי מצוה קלה אמר רבא בר רב יצחק אמר רב

The Gemara asks: What is a minor mitzva for this purpose? Rava bar Yitzḥak says that Rav says:

אפילו לשנויי ערקתא דמסאנא

Even to change the strap of a sandal. There was a Jewish custom with regard to sandal straps. If the gentile authorities were to decree that Jews must change their practice and wear sandal straps like those worn by the gentiles, one would be obligated to give up his life rather than veer from the accepted custom.

וכמה פרהסיא אמר ר’ יעקב אמר רבי יוחנן אין פרהסיא פחותה מעשרה בני אדם פשיטא ישראלים בעינן דכתיב (ויקרא כב, לב) ונקדשתי בתוך בני ישראל בעי רבי ירמיה תשעה ישראל ונכרי אחד מהו

The Gemara asks: And the presence of how many people is required so that it should be deemed a public act? Rabbi Ya’akov says that Rabbi Yoḥanan says: An action is not considered a public act if it is performed in the presence of fewer than ten people. The Gemara clarifies this point: It is obvious that we require that these ten people be Jews, as it is written in the verse from which we derive the requirement of ten for the sanctification of God’s name: “And I shall be sanctified among the children of Israel” (Leviticus 22:32). Rabbi Yirmeya asks: What is the halakha if there were nine Jews and one gentile present?

תא שמע דתני רב ינאי אחוה דרבי חייא בר אבא אתיא תוך תוך כתיב הכא ונקדשתי בתוך בני ישראל וכתיב התם (במדבר טז, כא) הבדלו מתוך העדה הזאת מה להלן עשרה וכולהו ישראל אף כאן עשרה וכולהו ישראל

The Gemara answers: Come and hear an answer from what Rav Yannai, the brother of Rabbi Ḥiyya bar Abba, teaches in a baraita: This is derived by means of a verbal analogy between the word “among” written with regard to the sanctification of God’s name, and the word “among” written with regard to Korah and his assembly. Here, with regard to the sanctification of God’s name, it is written: “And I shall be sanctified among the children of Israel,” and there, with regard to Korah, it is written: “Separate yourselves from among this congregation” (Numbers 16:21). The meaning of the word “congregation” written with regard to Korah is derived by means of a verbal analogy to the word “congregation” written with regard to the spies sent out by Moses to scout the land: “How long shall I bear with this evil congregation” (Numbers 14:27). Just as there, the congregation of spies numbered ten, and all were Jews, so too here, concerning the sanctification of God, there must be ten, all of them being Jews.

והא אסתר פרהסיא הואי אמר אביי אסתר קרקע עולם היתה

The Gemara raises a difficulty: But wasn’t the incident involving Esther, i.e., her cohabitation with Ahasuerus, a public sin? Why then did Esther not surrender her life rather than engage in intercourse? The Gemara answers: Abaye says: Esther was merely like natural ground, i.e., she was a passive participant. The obligation to surrender one’s life rather than engage in forbidden sexual intercourse applies only to a man who transgresses the prohibition in an active manner. A woman who is passive and merely submits is not required to give up her life so that she not sin.

רבא אמר הנאת עצמן שאני

Rava says that there is another justification for Esther’s behavior: When gentiles order the transgression of a prohibition not in order to persecute the Jews or to make them abandon their religion, but for their own personal pleasure, it is different. In such a situation there is no obligation to sacrifice one’s life, even when the sin is committed in public.

דאי לא תימא הכי הני קוואקי ודימוניקי היכי יהבינן לה אלא הנאת עצמן שאני הכא נמי הנאת עצמן שאני

Rava explains: As if you do not say so, then how do we give them coal shovels [kevakei vedimonikei]? The Persian priests would take coal shovels from every house, fill them with coals, and use them to heat their temples on their festival days. Although this involved assisting idol worship in public, Jews would not sacrifice their lives in order not to do so. Rather, the reason they cooperated is certainly that a measure enacted for the gentiles’ personal pleasure is different. Here too, concerning Esther, Ahasuerus engaged in intercourse with her for his personal pleasure, and a measure enacted for a gentile’s personal pleasure is different, and there is no obligation to sacrifice one’s life to avoid it.

[5]

So far the conversation is only a little confusing. The principle of saving life stands before all and overrides Shabbat. But only in a limited way. In the sources, what Pikuach Nefesh overrides in specific are negative commandments only. Exceptions are the three, or maybe two cardinal sins, depending on the circumstance, as alluded to above. Also most of the discussions about Pikuach Nefesh are limited to Shabbat violations. But what about positive mitzvot that pertain to sabbath observance and holidays, to weddings and funerals, and what about talmud Torah?

Confusing the issue further are more caveats. Well beyond my own ken, I can only suggest that saving life means something specific in the halakhic literature. First is the problem of non-Jewish life, that the mishnaic and amoraic sources do not acknowledge as worth saving. This gets worked out in the halakhic literature to include gentile life under the rubric of Pikuach Nefesh. A second question would concern wither or not the rule of saving life applies only to a case concerning the life of a particular person and whether that person’s life will be definitely be saved. These questions about the scope of the rule are clearly beyond my ken.

Here, however, is a more serious confusion that would unsettle the certainty with which modern Jews appeal to the principle of Pikuach Nefesh. As noted above, so far it would seem, the majority of the literature refers to the life overriding the prohibition of a negative commandment (don’t perform this labor on shabbbat, don’t eat pork, don’t worship idols, don’t engage in illegitimate sexual relations, don’t murder).

But what happens when the principle of saving life conflicts with a positive command. Maybe there is a case that performing this or that positive command overrides the principle of Pikuach Nefesh. I am thinking here of the decision by two major Haredi poskim to not close or to close yeshivot, either in Israel or in the United States. I posted about these here and here. Of note was that the principle of Pikuach Nefesh was not raised in the either statement at this time of mortal crisis. At issue is what the Haredi authorities were going to be allowed to do or not do by the respective governments in Israel and the United States related to the operation of yeshivot.

There was a lot of angry pushback online about both statements, perhaps the angriest coming from modern orthodox circles. I’m sure most liberal Jews were likewise appalled that Haredi poskim would risk human life by not closing down the yeshivot, or would not defer automatically to the principle of Pikuach Nefesh. But let’s not assume that saving life is an unrestricted and unconflicted good in “Judaism.” Perhaps it’s the case that saving life is not “the essence of Judaism.” Perhaps in Judaism there are notions that, at least for some Jews, are more important than human life.

I am in no position to say that the great Haredi poskim of the generation do not understand Halakhah or this particular halakhah in specific. I would doubt the argument that these rabbis are distorting some truth in the tradition that for some reason they failed to consider. After Buber and Scholem or after the halakhic meta-ethics of Soloveitchik and Leibowitz, we can all be alert enough to know enough to reject any claim that there is an “essence of Judaism.” And this is enough to give the lie to the rational, reasonable, conventional cliché that the principle of Pikuach Nefesh stands before everything in “Judaism.”

How, then, to explain the refusal of Haredi rabbis in Israel not to close the yeshivot in the face of the Coronavirus pandemic? Why the neglect to mention the principle of Pikuach Nefesh by the Beth Medrash Ha’Govoha in Lakewood and why the claim that the rabbis there are only following the decree of the government, not their own understanding of what the halakhic system requires at such a time as this? It’s terribly obvious. What other notion, what other good or value is there in “Judaism” that might override life itself if not the confidence (faith) in the world-sustaining and protecting power of talmud Torah? Not some bizarre metaphysical speculation, this confidence is the sociological truth that what sustains the world of Haredi Judaism as a modern movement in Jewish history  is the exclusive intensivity of their talmud Torah, without which their entire world might otherwise collapse in the modern world.  

In the value scheme of  the Babylonian rabbis, is there anything to suggest that talmud Torah precedes Pikuah Nefsh? Maybe. I have not seen the following text cited below in the discussions today about Coronavirus, but the idea the idea expressed by the Babylonian sages in.Megillah 15b is familiar enough. The Gemara tells there the sketch of a story about the Attribute of Justice demanding to know from God what distinguishes Israel from the nations. The obvious answer is that Israel occupies itself with Torah. But the Attribute of Justice retorts that the priests and prophets of Israel also get drunk and stumble just like the nations. The challenge goes unanswered. Then below on 16b is a very unusual saying attributed by Rav Yosef about the relative relation between talmud Torah and saving life (hatzalat nefashot) in the rabbinic value scheme.

The relevant parts of the sugya from Megillah 16b are these:

(אסתר ח, טז) ליהודים היתה אורה ושמחה וששון ויקר אמר רב יהודה אורה זו תורה וכן הוא אומר (משלי ו, כג) כי נר מצוה ותורה אור שמחה זה יום טוב וכן הוא אומר (דברים טז, יד) ושמחת בחגך ששון זו מילה וכן הוא אומר (תהלים קיט, קסב) שש אנכי על אמרתך

The Gemara returns to its explanation of the Megilla. The verse states: “The Jews had light and gladness, and joy and honor” (Esther 8:16). Rav Yehuda said: “Light”; this is referring to the Torah that they once again studied. And similarly it says: “For the mitzva is a lamp and the Torah is light” (Proverbs 6:23). “Gladness” [simḥa]; this is referring to the Festivals that they once again observed. And similarly it says: “And you shall be glad [vesamakhta] on your Festival” (Deuteronomy 16:14). “Joy” [sasson]; this is referring to circumcision, as they once again circumcised their sons. And similarly it says: “I rejoice [sas] at Your word” (Psalms 119:162), which the Sages understood as referring to David’s rejoicing over the mitzva of circumcision.

ויקר אלו תפלין וכן הוא אומר (דברים כח, י) וראו כל עמי הארץ כי שם ה’ נקרא עליך ויראו ממך ותניא רבי אליעזר הגדול אומר אלו תפלין שבראש

“Honor”; this is referring to phylacteries, which they once again donned. And similarly it says: “And all peoples of the earth will see that you are called by the name of the Lord; and they will be afraid of you” (Deuteronomy 28:10). And it was taught in a baraita: Rabbi Eliezer the Great said: This is referring to the phylacteries worn on the head. Haman had banned the fulfillment of all the mitzvot mentioned, but upon Haman’s demise the Jews returned to their observance.

[…]

כי מרדכי היהודי משנה למלך אחשורוש וגדול ליהודים ורצוי לרוב אחיו לרוב אחיו ולא לכל אחיו מלמד שפירשו ממנו מקצת סנהדרין

The verse states: “For Mordecai the Jew was second to the king Ahasuerus, and great among the Jews, and accepted by the majority of his brethren” (Esther 10:3). The Gemara comments: The verse indicates that Mordecai was accepted only “By the majority of his brethren,” but not by all his brethren. This teaches that some members of the Sanhedrin parted from him, because he occupied himself with community needs, and was therefore compelled to neglect his Torah study. They felt that this was a mistake and that he should have remained active on the Sanhedrin.

אמר רב יוסף גדול ת”ת יותר מהצלת נפשות דמעיקרא חשיב ליה למרדכי בתר ד’ ולבסוף בתר חמשה מעיקרא כתיב (עזרא ב, ב) אשר באו עם זרובבל ישוע נחמיה שריה רעליה מרדכי בלשן ולבסוף כתיב (נחמיה ז, ז) הבאים עם זרובבל ישוע נחמיה עזריה רעמיה נחמני מרדכי בלשן

Rav Yosef said: Studying Torah is greater than saving lives, as initially, when listing the Jewish leaders who came to Eretz Yisrael, Mordecai was mentioned after four other people, but at the end he was listed after five. This is taken to indicate that his involvement in governmental affairs instead of in Torah study lowered his stature one notch. The Gemara proves this: At first it is written: “Who came with Zerubbabel, Jeshua, Nehemiah, Seraiah, Reelaiah, Mordecai, Bilshan” (Ezra 2:2); but in the end in a later list it is written: “Who came with Zerubbabel, Jeshua, Nehemiah, Azariah, Raamiah, Nahmani, Mordecai, Bilshan” (Nehemiah 7:7).

The clear upshot is that, in the Bavli, there are more important things in this world than good government . The statement attributed to Rav Yosef is preceded by an aesthetic panegyric to the light of Torah, the joy of circumcision, and the awesome sight (kavod, glory, or honor) of tefillin. Worth noting is that these three are all positive mitzvot, not the negative mitzvot (prescriptions, not proscriptions) that Pikuach Nefesh may or may not override depending upon the situation. These are primary goods in the rabbinic world-system. Now utterly confusing the easy and by now conventional notion that nothing stands before Pikuah Nefesh, Rav Yosef does not claim that talmud Torah overrides (doche) Pikuach Nefesh. His is only the strong assertion that the study of the Torah (talmud Torah) is superior to the saving of life (hatzalat nefashot) (ת”ת יותר מהצלת נפשות).

Against the view of Lichtenstein and Berkovits that Halakhah has a moral sense or core is the argument that talmud Torah has less to do with “ethics” as we conventionally understand it and more to do with the “ethos” that shapes the Haredi universe as a “moral community.” In this view in line with Soloveitchik, talmud Torah l’shma, the system itself is the unyielding core that permeates the talmudic system, talmudic thinking, not practical Halakah, not social ethics, not virtue ethics.

Make of this what you will. My own intention is not to defend or embrace this world-view as much as to show and explain how systems as complex as Halakhah are never conflict free in relation to values and that this complexity cuts to the core of human life.

Lastly, I’m no gaon. And I’m not proud. The material from Yoma I know, and some other sources as well. For a bird’s eye view of Pikuach Nefesh in the Bavli, I went to this index of sources here.

And now by way of postscript. There’s been an interesting tension around this value concept. On the one hand modern orthodox and most Haredi authorities are coalescing their response to the Coronavirus around the principle of Pikuach Nefesh, while, on the other hand, there have been ongoing violations among Haredi Jews at the popular level of guidelines concerning crowds and social distancing (particularly around this year’s observance of Lag Ba’Omer). Even if it’s true that most Haredi Jews are abiding by the guidelines under this religious rubric, it’s also true that the crowds have been not small. It’s this lived strain that proves the point about the relative value of the absolute value of Pikuach Nefesh vis-a-vis other value concepts that determine Haredi Jewish communities.

Pikuach Nefesh is not a simple one-shot value schema. It gets parsed in relation to its application to particular instances. Explaining diverse approaches to Pikuach Nefesh is this useful typology by Shlomo Zuckier who writes on FB:

1. Attitude 1: We should be *less concerned* with the dangers in cases of religious activity. Shuls shouldn’t be closed or should be closed last. Opening Shuls should happen sooner than activities of equivalent danger. [There are different versions of what motivates this view – some see health guidelines as a conspiracy, some focus on Torah’s ability to protect – but the resulting attitude is the same.] This view is stated explicitly by some, and is implicit in the actions of those who only closed when coerced, those who attempt to skirt regulations, and those who lobbied local and national governments to allow them to reopen.

2. Attitude 2: We should be *equally concerned* with the dangers of COVID-19 in the context of Shul as in the context of other activities. There are different renderings of this view, but they often take the view that one is warranted to take minor risks in undertaking activities that are commonly done in society. [This is often based on the idea of Shomer Pesa’im Hashem, and/or that certain risks are below the threshold point that Halakha should be concerned.]

3. Attitude 3: We should be *more concerned* about the dangers of COVID-19 than the rest of the population. The two main proponents of this position are Rav Asher Weiss in Israel (he has called Israel’s Health Ministry “overly lenient” and “an ignoramus”) and Rav Mayer Twersky in the US. Significantly, his recent writing on this topic was endorsed by Rav Herschel Schachter, one of the major decisors for the OU, and has been invoked in communal decision making.

The strict opinion by Twersky against opening synagogues, erring on the side of extreme caution and respect for medical experts is here chai b’hem. His argument is based on Maimonides in Hil. Shabbat 2:3 that “the laws of the Torah in this world are not punitive but are merciful, loving, and peaceful.” I’ll add that this is certainly not an uncontested position about the mitzvah system.

 

About zjb

Zachary Braiterman is Professor of Religion in the Department of Religion at Syracuse University. His specialization is modern Jewish thought and philosophical aesthetics. http://religion.syr.edu
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