Uncertain Piku'ach Nefesh and Public Policy
Halakha: A Weekly Shiur In Halakhic Topics
Yeshivat Har
Etzion
Uncertain
Piku'ach Nefesh and Public Policy
Rav Chaim
Navon
The Mishna states that one profanes Shabbat even for uncertain
piku'ach nefesh (saving of an endangered life):
R. Matiya ben Charash
says: Someone who has a pain in his throat - we cast medicine into his mouth on
Shabbat, because it is an uncertain [danger to] life, and every [instance
of] uncertain [danger to] life sets aside Shabbat. A person upon whom a
building has collapsed, and there exists a doubt whether he is there or not
there, whether he is alive or dead, whether he is a Cuthean or an Israelite – we
remove the debris for his sake. (Yoma 83a)
Following the collapse of the roof of the Versailles wedding hall, R.
Israel Lau, then the Chief Rabbi of the State of Israel, ruled that the rescue
efforts should continue on Shabbat. While the press spoke with great
excitement about "the novel ruling of R. Lau," there was nothing really new
about it; it was, in fact, an explicit Mishna.
It is true, however, that not every instance of uncertain piku'ach
nefesh justifies the desecration of Shabbat. One of the criteria
limiting the allowance was established by R. Yechezkel Landau, the Noda
Biyehuda, in the course of his discussion regarding the permissibility of
performing autopsies:
…Concerning an incident
that occurred there involving a patient suffering from gall stones, whose
doctors performed surgery following common medical practice, but the surgery was
unsuccessful and he died. The halakhic authorities of the city were asked
whether it was permissible to dissect the corpse in that area, in order to
obtain a clear view of the source of the disease. [This was all] in order to
acquire medical knowledge for the future, should such a case occur again; that
they should know how to perform the surgery, and thus avoid the danger of
unnecessary incisions. Is this forbidden because it involves disfiguring and
disgracing the corpse, or is it permitted because it will lead to the saving of
lives in the future?…
I am astonished. If this
is called even uncertain piku'ach nefesh, then why all the discussion?
Surely this is governed by the explicit ruling that even uncertain piku'ach
nefesh sets aside the stringent laws of Shabbat… However, all this
applies when we have before us a case of uncertain danger to life; e.g., a sick
patient or a collapsed wall… But in the case under discussion, there is no
patient that needs this [now]. The only reason they wish to acquire this
knowledge is that perhaps there will be a patient who will need it. We may
certainly not set aside a Torah prohibition or even a rabbinic prohibition
because of this unlikely concern. For if you consider such a concern uncertain
piku'ach nefesh, then all preparations of medications – grinding and
cooking medicines, preparing a scalpel for blood-letting – should be permitted
on Shabbat, for perhaps a sick person will arrive today or tonight and he
will need it. And it is difficult to distinguish between a concern that is near
in time and one that is far-off. (Responsa Noda Biyehuda Tinyana, Yore
De'a, no. 210)
The Noda Biyehuda argues that one may not profane Shabbat
now because of the possibility that this will save a life in the future.
That is to say, one may not violate a Shabbat law when there is no one
presently before us whose life will be saved through the commission of that
transgression. It should be mentioned that there is room to disagree with the
Noda Biyehuda's comparison. He argues that if we allow uncertain
piku'ach nefesh of this sort, we should always desecrate Shabbat
by preparing medications, "for perhaps a sick person will arrive." But there
is no similarity between the cases. Preparing medical instruments or medications
on Shabbat because of the possibility that a sick person will arrive
would indeed be foolish. Regarding medical training, however, there is no
uncertainty. There is no question that at some point in the future one of the
current medical students will find himself treating a patient with the same
illness. Uncertainty may indeed exist as to the degree that the autopsy
performed now will enhance his future medical skills, but that is a doubt of an
entirely different sort. R. Moshe Sofer, the Chatam Sofer, writes in one
of his responsa (Yore De'a, no. 336): "According to this, if there
were before us a patient with a similar disease, and we would wish to perform an
autopsy on the corpse in order to cure the patient, it would almost certainly be
permissible." This implies that we assume that performing the autopsy will
indeed enhance the doctor's skills and contribute to the saving of life. The
only problem is that there is no patient before us. Regarding the professional
training of doctors, however, is this really "an unlikely concern," as argued by
the Noda Biyehuda?[1]
Indeed, the Chazon
Ish proposes a different approach, which at first glance appears much more
logical:
The Noda Biyehuda
and the Chatam Sofer [write] that if there is a sick person before
us, one is permitted to disfigure a corpse for the sake of piku'ach
nefesh, but if there is no sick person before us, this is forbidden. The
difference is not between there being a sick person before us and there not
being a sick person before us, but whether it is common. For at a time that we
sound the blasts [even if there is no sick person before us] because of a
disease that is spreading, it is like a case where the enemies are laying siege
to a border town… Just as we do not prepare weapons on Shabbat during a
time of peace, for were you to do so, you would cancel all the mitzvot.
Rather, we do not include in the category of uncertain piku'ach nefesh
future possibilities that have no basis in the present. And in fact we are not
experts on the future. There are times that things we thought would save lives
turn into a stumbling block. Therefore we do not consider things in the distant
future. (Chazon Ish, Ohalot 22:32)
The Chazon Ish soundly argues that whenever a disease is
relatively common we view the situation as if there were a sick person before
us. When, however, the disease is uncommon, we are not concerned about its
breaking out in the future. The beginning of the passage implies that we are
dealing here with a formal reservation, but the end of the passage clarifies
that we are simply incapable of making calculations regarding piku'ach
nefesh in the future. Perhaps, in another two years, a new cure will be
discovered for a certain disease, making the autopsy superfluous. It may be
argued, however, that if we are dealing not with a formal reservation, but with
calculating probabilities, then such a case should still fall into the category
of uncertain piku'ach nefesh.
R. Ya'akov Ettlinger,
author of Arukh le-Ner, in the course of an entirely different
discussion, proposed a different criterion for assessing uncertain piku'ach
nefesh in the future:
Even though we are
guided by the principle that nothing stands in the way of piku'ach
nefesh, and that with respect to piku'ach nefesh, we do not follow
the majority, this is only when there is a certain danger to life before us;
e.g., where a building collapsed. In such a case, we are fearful about even the
smallest minority. But when presently there is no piku'ach nefesh, but
only fear regarding some future danger, then we follow the majority, as we do
regarding prohibitions. For were this not true, how would it be permissible to
sail out to sea or travel through a desert, things for which we must express
gratitude for surviving? Why is it permissible to enter into danger and violate
the prohibition, "Take good heed to yourselves" (Devarim 4:15)? Rather,
you must conclude that since when the person sets out, there is not yet any
danger, we follow the majority. (Responsa Binyan Tziyon, no.
137)
According to R. Ettlinger, a distinction must be made between future
danger and present danger. In the face of present danger, we consider all
possible danger to life; in the case of future danger, on the other hand, we
follow the majority, and do not consider every possible danger. What are
the ramifications of this position regarding autopsies performed for the sake of
medical training? It is highly likely that some of the medical students
participating in such autopsies will utilize the knowledge gained from the
procedures to treat patients suffering with the same disease. It should also be
noted that there is room to question his proof: It is possible that sea and
desert travel are not considered acute dangers, and clearly we do not regard
every trivial danger as piku'ach nefesh. It is further possible that
regarding the allowance to enter into danger, we follow the normal standards of
human behavior, and "the Lord preserves the simple" (Tehilim 116:6). This
is the position (without reference to the Binyan Tziyon) of R.
Unterman[2] and also R. Shlomo Zalman Auerbach.[3]
R. Herzog approaches this issue from a different angle in the context of
a discussion of police activity on Shabbat. In the course of his
discussion he cites another source relevant to the issue. His point of departure
is a passage in Eruvin:
Mishna: All who go out
to rescue may return to their place…
Gemara: This is
difficult, for we have learned in a Mishna: "…One who comes to rescue from an
invading troop, from a river, from a collapsed building, or from a fire, are
treated like the inhabitants of the city and have two thousand cubits in every
direction." And no more? But surely you said: "All who go out to rescue may
return to their place" – even more! Rav Yehuda said in the name of Rav: They
return to their place with their weapons. As it was taught: "At first they would
leave their weapons in the house adjacent to the wall. Once they were detected
by the enemy, who pursued them, and they entered [the city] to take their
weapons, and the enemy entered after them. They pressed one upon the other and
killed one another in greater numbers than were killed by the enemy. At that
time, they enacted that they should return to their place with their weapons."
Rav Nachman bar Yitzchak said: There is no difficulty; here where Israel
defeated the nations of the world, and here where the nations of the world
defeated them. (Eruvin 44a-45b)
The Mishna teaches that those who set out on a rescue mission on
Shabbat are permitted to return to the place from which they had set out.
The Gemara asks why the rescuers are permitted to return home, even beyond two
thousand cubits. The Gemara proposes two answers. According to the first
answer, they are not permitted to
return home if it is more than two thousand cubits, but they are permitted to
return with their weapons (apparently, even when this involves carrying from the
public domain to the private domain). This is because of piku'ach nefesh,
in the wake of an actual incident. According to the second answer, they are
permitted to return home even beyond two thousand cubits when it was the enemy
who had emerged victorious, here too apparently because of piku'ach
nefesh.
The Rambam, however,
offers a different rationale for the allowance:
There is a mitzva
upon all members of Israel who are able to do so to come and help their
brothers under siege and rescue them from non-Jews on Shabbat, and they
must not tarry until the conclusion of Shabbat. After having rescued
their brothers, they are permitted to return to their place with their weapons
on Shabbat, so as not to cause them not to come in the future.
(Hilkhot Shabbat 2:23)[4]
The Rambam writes that the reason for the allowance to return with their
weapons is not immediate piku'ach nefesh, but so as not to cause them not
to come in the future, i.e., so that they should not refrain from coming to
their brothers' rescue in the future. It is not clear why the Rambam fails to
mention the reason brought in the Gemara, because of the incident, etc. R.
Yisraeli suggests that according to the Gemara's reason, it is not clear why the
rescuers should not be required to remain where they are (at least in the case
where they were victorious) together with their weapons, in which case they will
not be in any danger, for the problem of immediate endangerment to life only
arises when they leave without their weapons.
Regarding this ruling of the Rambam, R. Herzog writes as follows:
Regarding policemen who
go out to arrest a thief who has already been apprehended, but must be brought
into custody, or else he will run away – here there is no direct piku'ach
nefesh, but there exists a concern, as stated, that if there is no police
response in such a case, there will be an increase of robberies on the holy
Shabbat… Now earlier we cited the Rambam who permits those who come to
rescue to return to their place with their weapons, lest if you be stringent
with them, they will refrain from coming the next time. We understand from this
that even a concern about piku'ach nefesh in the future constitutes
grounds for allowance. Nevertheless the two cases are not entirely similar.
First of all, it is not sufficiently clear here that the thieves are killers,
for there are those who run away as soon as they are detected by people. And
second, since the entire allowance is based on the argument that if we do no
permit it, robberies will increase – surely the great majority [of policemen]
unfortunately do not consider the rulings of the Rabbinate, and they in any
event will not refrain from coming, and so the prohibition would not bring about
an increase in robberies.
And in general, it is
difficult to decide on an allowance because of the concern for piku'ach
nefesh, for undoubtedly there must be some limit to the concern for
piku'ach nefesh… This matter requires further study. (R. Y.
Herzog, Be-Tzomet ha-Torah ve-ha-Medina, III, pp.
13-14)
R. Herzog brings what appears to be a strong proof to allow Shabbat
desecration for the sake of future piku'ach nefesh: The Rambam rules
that those who go out on a rescue mission are permitted to return together with
their weapons, apparently even in a place where this involves a Torah
prohibition, and he offers the explanation (which does not appear in the Gemara)
that we are afraid that if we do not permit this, the next time they will not go
out to rescue. Thus we see that the Sages permitted the desecration of
Shabbat because of possible piku'ach nefesh in the
future.
There is another interesting point in the words of R. Herzog: He notes
that his ruling will have no practical ramifications regarding piku'ach
nefesh, for in any case most policemen will not listen to him. This is a
very problematic halakhic-philosophical idea. Should a halakhic ruling be issued
on the assumption that it will not be accepted, or should a halakhic ruling be
issued with the hope that it will guide all of Israel?[5]
R. Yisraeli, in his response to the position put forward by R. Herzog,
greatly expands the allowance based upon future piku'ach nefesh, in
contrast to the approaches of the Noda Biyehuda and the Chatam
Sofer:
We learn from here the
rule that even piku'ach nefesh that is not before us, neither at this
moment nor afterwards, but it is clear to us that it will arrive at some point
in the future - we view it as if it were already before us. For this obligation
of "And he shall live in them" is constantly before us, not only with respect to
life at this moment, but rather we are constantly commanded to worry about the
saving of life that will have to be in the future, even though we don't know
when or how… It seems then that there is also no room to make distinctions based
on the frequency of that which will come in the future. For even if there is
only a one in a thousand chance of it occurring, the saving of one life at some
time in the future suffices to allow and to obligate performing these actions of
Shabbat desecration, which fall into the category of preparations for
such rescue. (Rav S. Yisraeli, Amud ha-Yemini, p. 212)
R. Yisraeli relies on
the Rambam's position regarding those who go out to rescue, and also on the law
regarding witnesses for the sanctification of the new month, who may come on
Shabbat, even if they are not needed, so as not to cause them not to come
in the future.
There is room here to
raise another consideration. Thus far we have spoken about uncertain future
piku'ach nefesh in the future in general terms. It is, however,
necessary, to emphasize an additional factor, which was already implicit in our
discussion of the Noda Biyehuda and the Chatam Sofer. I am
referring to the distinction between individual and community. When we are
dealing with uncertain piku'ach nefesh regarding a community, there may
be additional grounds for allowance.
The Gemara in Shabbat
states:
But surely Shemuel said:
One may extinguish a lump of fiery metal in the public domain, that no injury
should come to the public. (Shabbat 42a)
The Ramban understands this ruling as follows:
One may extinguish a
lump of fiery metal. Rashi explains that extinguishing here is not forbidden by
Torah law, but only by rabbinic law, and where there is [potential] injury to
the public, [the Sages] did not decree a prohibition… But in the Halakhot
Gedolot I found that in the case of a coal of wood, there is no injury to
the public. Why not? As long as it is not extinguished it remains red, and
people see it, and do not come to suffer injury through it. But a fiery lump of
metal burns even after its redness is gone, and people do not see it, and come
to suffer injury through it. And R. Yehuda does not consider [potential] injury
to the public, and Shemuel disagrees with him when there is [potential] injury
to the public… And so too writes Rabbenu Chananel. And it is astonishing, how we
permit an absolutely forbidden labor because of [potential] injury where there
is no danger to life. Perhaps, according to Shemuel, all [potential] injury to
the public is considered like a danger to life. (Ramban, ad
loc.)
The Ramban presents the position of the Geonim, according to which a
fiery lump of mental constitutes a potential danger to the public, and
"according to Shemuel, all [potential] injury to the public is considered like a
danger to life." Therefore, argues Shemuel, it is permissible to extinguish a
fiery lump of metal found in the public domain, even though this involves a
violation of a Torah prohibition. R. Yisraeli brings another proof for this
principle from the allowance to initiate an optional war and thus endanger the
lives of soldiers for economic gain or political prestige. This is permissible
because communal economic distress is regarded as a danger to life. What is the
logic in this? Why is a hazard to the public regarded as piku'ach nefesh?
R. Yisraeli offers a cogent explanation:
It seems that this is
based on the idea that whatever concerns public welfare or removal of hazards,
it is all regarded as piku'ach nefesh. For everything connected to public
welfare has an indirect element of piku'ach nefesh. The livelihood of the
individual, for example, does not involve piku'ach nefesh; but if the
community will be without an income, even if it does not reach [a want for]
bread, it is inescapable that one out of the many will be such that he must eat
finer food, so that for him it can come to be piku'ach nefesh. And
similarly every war that brings to greater prosperity, allowing us to deal more
with the sick and feeble, which is not the case when economic conditions are
depressed. And similarly regarding a war undertaken to enhance the king's
reputation, it may be assumed that this will cause the enemies to be afraid to
come, and those interested in making an alliance with him will increase, which
will also lead to an improved economic state, and through this the public health
will be enhanced. And similarly regarding the removal of a public hazard in the
case of the fiery lump [of metal]. Even though in and of itself it is not
dangerous, but it is possible that the injured party will not be able to go out
to work, and it is also possible that he lives alone and will be unable to tell
someone to come and help him, and thereby this little matter can lead to
piku'ach nefesh. And similarly regarding other situations, that if we
consider them in relation to an individual, [the danger] is distant and of no
concern. Nevertheless, on the public level, it will happen in the end, and
regarding piku'ach nefesh, this too must be brought into consideration.
(Rav S. Yisraeli, Amud ha-Yemini, pp. 214-215)
When we are dealing with the community, every little danger is liable to
lead to piku'ach nefesh regarding people found on the outskirts of
society. Even moderate economic shortage is liable to lead to situations of
piku'ach nefesh for such people. R. Yisraeli appends this consideration
as a supporting argument to allow police activity on
Shabbat.
Similar considerations are mentioned also in the name of R. Shelomo
Zalman Auerbach:
The person who raised
the question was a young man who served in the army in the intelligence corps,
where they succeeded in intercepting a communications network of a hostile
country and decoding its cipher. It was the soldier's role to decode the cipher
by way of a computer. Obviously, this decoding involved the desecration of
Shabbat. He told his commander that on Shabbat he preferred to
decode only some of the messages, those regarding which in his opinion there is
a high probability that they are relevant to Israel…
We went together to the
Gaon, R. S.Z. Auerbach to ask his opinion, and he ruled that the soldier must
decode all the messages… Even though there is no difference in Halakha
between piku'ach nefesh of an individual and that of the community,
and even for uncertain piku'ach nefesh of an individual we desecrate the
Shabbat, nevertheless there is a great difference between them regarding
the level of danger that is regarded as piku'ach nefesh… For example,
people are not deterred from undertaking inter-city journeys, even though there
is a certain risk factor, for argument's sake one in ten thousand. But there is
no question that a head of state who would assume a one in ten thousand chance
danger for his country would be regarded as irresponsible in his actions, for in
the case of a community, such a level of danger is regarded as danger.
Therefore, R. S.Z. Auerbach ruled that the soldier must decode all the messages,
for they deal with matters relevant to national security, even though the same
degree of danger in the case of a private person would not be regarded as
piku'ach nefesh. (R. M.M. Farbstein, Assia LIII-LIV, 1994, p.
100)
Here the rationale is not that the situation will lead to piku'ach
nefesh on the fringes of society, as in the cases mentioned by R. Yisraeli.
If there is a risk of war, the danger relates to the entire community, and not
only to problematic extreme cases. R. S.Z. Aurbach raises a slightly different
point: When we are dealing with a risk to the entire community, we do not take
chances. R. Yisraeli had related to a case of danger that threatens an
individual, but when the danger relates to a large community, it is close to
certain that some individual will suffer injury. R. Auerbach relates to a case
where the danger threatens the community as a whole.[6]
R. Goren goes one step
further, sharpening the differences between piku'ach nefesh of an
individual and piku'ach nefesh of the community. He argues that in the
State of Israel there is the added element of governmental responsibility toward
its citizens, and in light of this there is room to consider even distant
concerns in the future:
The position of the
Noda Biyehuda and the Chatam Sofer is correct and applicable from
a halakhic perspective, but only when we are talking about Jewish doctors in the
Diaspora, who bear no responsibility for the health of the people in the
country. They are only bound by the mitzvah and the duty to treat
patients who turn to them, but are not responsible for planning short-term or
long-term medical services. Regarding them, the basic outlook of the great
authorities mentioned above is correct, that in the absence of a sick person
standing before them, they may not use the criteria of piku'ach nefesh in
order to worry about sick people in the future, who may never appear before
these doctors, and if they appear, this insubstantial possibility does not
constitute a basis to permit Torah prohibitions for doctors, who are not
responsible for medical services in the future.
However, when we are
dealing with an independent Jewish state, where the government of Israel is
responsible to design a medical system in the country for all its citizens, this
national responsibility does not express itself in the daily individual planning
of medical services in Israel, but rather in overall long-term responsibility.
Surely it is clear that every year a significant number of patients requiring a
transplant will be admitted to the country's hospitals. If we do not worry from
the outset about organ donations, we will not be able to satisfy the many
requests that will arise. (Rav S. Goren, Torat ha-Refu'a, p.
80)[7]
R. Goren's assertion appears revolutionary; but it seems possible to
formulate it in a more logical fashion. In the Diaspora, a posek rules
for the individual doctors who ask him their questions. His halakhic position
does not effect the entire medical system. In the State of Israel, however, the
posek decides – at least in the optimal situation – for the government
and the entire system, and therefore he must consider the effects of his rulings
from an overall systemic perspective, taking into account far-off future
considerations. It seems that we are not dealing with a special law applying to
a state in the formal sense. Had a similar question arisen in the autonomous
Jewish region that the Soviets had tried to establish in Azerbeijan, the law
would have been the same: wherever the medical system is in the hands of Jews,
and the halakhic rulings will have an impact on the systemic level, we must take
such considerations into account.
In light of this principle, R. Goren rules that autopsies for the sake of
medical training should be permitted in the State of Israel, even according to
the positions of the Noda Biyehuda and the Chatam Sofer (ibid.,
pp. 214-215).
FOOTNOTES:
[1] It should be noted
that a question arises whether or not the prohibition to disfigure a corpse
applies when the disfigurement is executed for some benefit. We shall discuss
the issue in one of the coming lectures in this series dealing with the topic of
autopsies.
[2] Responsa Shevet
Yehuda, no. 19, letter 2.
[3] Shemirat Shabbat
ke-Hilkhata, chap. 32, note 2. See also the words of R. Farbstein,
Assia LIII-LIV, p. 103.
[4] Regarding the
Rambam, see also Responsa Iggerot Moshe, Orach Chayyim, IV, no. 80
(who, in a particular case, permits a doctor to return home on Shabbat,
even when this involves a Torah prohibition); R. Avidan, Shabbat u-Mo'ed
be-Tzahal, pp. 39-48; R. Goren, Meshiv Milchama, I, pp. 236-242;
Minchat Shelomo, I, no. 8 (who rejects the Iggerot Moshe);
Sefer Assia IV, pp. 60-71.
[5] R. Yisraeli
disagrees with R. Herzog on this point (see Amud ha-Yemini, p. 211) for
the following reasons: 1) We do not take into account the fact that there are
people who will not accept the halakhic ruling, but rather we rule for the
entire nation. 2) Many have come to abandon observance of the mitzvot
precisely because they thought that it is impossible to reconcile the Torah with
national life. 3) There are times that the extra policeman who goes out on the
mission will bring about the rescue; thus, even the Torah-observant minority
among the policemen is significant. 4) R. Herzog's approach will lead to a
reduction in the number of observant people in the ranks of the police, and this
will have many negative consequences.
[6] It should be noted
that the Netziv writes that the Torah cannot possibly require the
coronation of a king, not in accordance with the spirit of the times, etc., "for
a matter concerning government borders upon danger to life which sets aside
positive precepts. Therefore it is impossible to absolutely command the
appointment of a king, as long as the nation has not agreed to bear the burden
of a king, after having seen that the surrounding countries are governed with
greater order" (Ha'amek Davar, Devarim 17:14).
[7] See also pp. 155,
214, and 235.
(Translated by David
Strauss)