The Halakha of Yeihareg Ve-Al Ya'avor

  • Rav Moshe Taragin
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Dedicated by Rav Yitzchak and Stefanie Etshalom
in memory of Rabbi Aaron Wise z"l,
Rav Etshalom's father, on the occasion of his 20th yahrzeit - 21 Tammuz
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The preservation of life overrides almost all aveirot. When faced with a life-threatening situation, almost any aveira must be performed to preserve life, based on the principle of ve-chai ba-hem – Torah is meant to support and embrace life. The exceptions are the three cardinal aveirot of avoda zara, giluy arayot, and shefichut damim (idolatry, sexual violation, and murder). These are never overridden; they must be upheld even at the cost of life. In this shiur, we will explore the nature of these three aveirot and the principle of yeihareg ve-al ya’avor, which mandates that a Jew sacrifice his life rather than violate these commandments.
 
The obvious approach is to suggest that these three aveirot are unique and possess an element that prevents the override of pikuach nefesh. This unique quality may be the sheer severity of these aveirot chamurot. These three aveirot represent such fundamental aspects of religion that they are considered most severe and are not cancelled for the sake of preservation of life.
 
However, some Rishonim (see the Ran, Sanhedrin 74, and the Re’ah quoted by the Ritva, Pesachim 25) claim that murder and sexual misconduct are not inherently more severe; instead, they are treated differently because they cause a negative impact upon another person, a pegam. Murder obviously affects the victim and sexual misconduct creates non-pedigreed children (and sometimes even has a negative effect on the pedigree of the woman). The reason these aveirot are not overridden for pikuach nefesh is not necessarily because they are more severe than other sins, but because they aren’t purely personal; they negatively affect other people.
 
In fact, some have suggested that any aveira of bein adam la-chaveiro that negatively affects others is not cancelled for pikuach nefesh. Thus, for example, when faced with a threat to life, a person may not steal from another person. Pikuach nefesh allows committing a personal aveira to preserve life, but it does not sanction damaging a different person to rescue your life.
 
Although these two models present different reasoning, they share a common logic: For some reason, these aveirot – whether because of their inherent severity or because of their negative impact on others – are not overridden for life preservation.
 
The Rambam (Hilkhot Yesodei Ha-Torah, ch. 5) takes a different approach. All aveirot – including these three –are suspended for pikuach nefesh. However, a separate mitzva of kiddush Hashem, to sanctify the name of God, determines that life must be surrendered rather than violating these aveirot and defiling the presence of God in our world. Pikuach nefesh does, in fact, override these aveirot, but a separate mitzva to be mekadesh shem shamayim (and avoid a chillul Hashem) dictates that the aveira must not be performed, even at the cost of life.
 
These different models of understanding yeihareg ve-al ya’avor yield some interesting potential nafka minot. Chief among them is the question of punishing someone who fails in a yeihareg ve-al ya’avor situation. If a person does not sacrifice his life, but instead violates one of these avierot to preserve his life, is he punished for that aveira?
 
The Rambam is adamant that he is not punished. This reflects his position that the aveira itself was cancelled due to the mitzva of ve-chai ba-hem, as well as the coerced (ones) nature of the aveira performance. Since the aveira has been cancelled, the person cannot be held accountable for violating avoda zara or murder. He has failed to fulfill the mitzva of kiddush Hashem and has violated the name of HKB”H, but he has not performed the aveira itself.
 
This position formed the foundation of the Rambam’s position articulated in his letter known as Iggeret Ha-Shemad. Many Jews had been coerced to convert to Islam in the 12th century. Although he does not defend the actions of these Jews, the Rambam defends their inclusion in the Jewish community, asserting that since they were coerced, they were not in violation of avoda zara, even though they failed to be mekadesh shem shamayim.
 
By contrast, the Ran in Sanhedrin (61), citing Rabbenu Dovid, writes that violation of these three aveirot - even to preserve life - would be punishable, since these three aveirot are not overridden by pikuach nefesh. Since these three aveirot are more severe, they are binding even in life-threatening circumstances, and their violation is punishable by beit din.
 
A second question pertains to a gentile’s obligation regarding yeihareg ve-al ya’avor, as gentiles are also prohibited from violating these three aveirot. This question is raised by the gemara in Sanhedrin (74b). Abaye claims that non-Jews are not obligated to give up their lives to avoid these violations. After all, their list of commandments tops off at seven. If we obligate them for an additional and autonomous commandment to sanctify the name of God, the list would swell to eight mitzvot. Clearly, Abaye’s view parallels that of the Rambam; yeihareg ve-al ya’avor constitutes a separate mitzva, which therefore cannot be applied to gentiles, whose obligations are limited to seven. By contrast, Rava replies “inhu ve-chol abizraihu” – gentiles are obligated in all seven mitzvot as well as the subsidiary components of those mitzvot, such as yeihareg ve-al ya’avor. Evidently, Rava maintains that these aveirot inherently prevent the override of pikuach nefesh. Since the mandate to surrender life rather than violate these aveirot is not a separate mitzva of kiddush Hashem, but rather an inherent parameter of these aveirot, the rule applies to gentiles as well. Part and parcel of these three aveirot is the responsibility not to breach them even at the cost of life. That is not a separate mitzva, which would swell the list to seven, but rather an internal qualifier of the aveira.
 
A third question surrounds the scope of yeihareg ve-al ya’avor. Does it apply to any connected aveira or only to the aveira itself? The Ramban (both in his Milchamot Hashem as well as in Sefer Torat Ha-Adam, Sha’ar Ha-Sakana) claims that only primary aveirot that carry karet or capital punishment would generate yeihareg ve-al ya’avor rules. Thus, for example, marriage between a kohen gadol and a widow – although forbidden – would not trigger yeihareg ve-al ya’avor, as it is not liable for the death penalty. Other Rishonim (cited by the Ritva in Pesachim) claim that any aveira subsumed within these three categories would mandate yeihareg ve-al ya’avor.
 
Presumably, this debate stems from the same fundamental question. The Ramban claims that yeihareg ve-al ya’avor is rooted in the severity of these three aveirot. It therefore only kicks in when the aveirot are so severe that they carry a death sentence. By contrast, the Rambam – who claims that yeihareg ve-al ya’avor is a separate mitzva to sanctify Hashem’s name – might apply the principle to any aveira related to these three areas. The three halakhic areas preserve the Divine Presence in our world. Violation of any element constitutes a desecration. In fact, the Rambam does not quote any qualifiers and would seem to apply yeihareg ve-al ya’avor more broadly than the Ramban applies it.
 
Finally, this question may impact the nature of yeihareg ve-al ya’avor if the coercion is not ideological. If a gentile coerces these aveirot out of personal vindictiveness and not as a manner of challenging Jewish religion, does yeihareg ve-al ya’avor still apply? The Ba’al Ha-Ma’or in Sanhedrin (74) rules that it would not. Evidently, he agrees with the Rambam that yeihareg ve-al ya’avor does not represent the inherent binding nature of these severe aveirot. If it did, the motivation of the coercer would not affect the application of yeihareg ve-al ya’avor. Evidently, a separate mitzva of kiddush Hashem mandates yeihareg ve-al ya’avor, and this mitzva only applies in a context of a religious faceoff. If the coercer has purely private motivations, no scenario of kiddush Hashem exists.
 
Most Rishonim disagree with the Ba’al Ha-Ma’or and apply yeihareg ve-al ya’avor for these three aveirot even in a context of hana’at atzman, where the coercer has purely personal motivations. They may still agree with the Rambam that yeihareg ve-al ya’avor entails a mitzva of kiddush Hashem, but they may maintain that kiddush Hashem is unrelated to the motivation of the coercer. Even if he is pursuing personal agendas, the aveira will affect the presence of the Shekhina in our world, and life must be surrendered to preserve that presence. Alternatively, these Rishonim may fundamentally disagree with the Rambam and claim that yeihareg ve-al ya’avor is based on the inherent severity of these aveirot, which demands that be preserved even at point of death. Accordingly, they should not be violated even in a situation of personal interest, hana’at atzman.
 
Among those who disagree with the Ba’al Ha-Ma’or, the Ramban applies yeihareg ve-al ya’avor even to cases of hana’at atzman. This is consistent with his earlier stated position that yeihareg ve-al ya’avor is based upon the severe nature of these aveirot.