By Rabbi Yair Hoffman for 5tjt.com
This article addresses a number of issues – COVID-19, the exchange of murderous terrorists for kidnapped soldiers, and dealing with predators in our midst. It deals with our public policy regarding these matters and a certain insight in the Maharsha. It follows the idea of haphech bah haphech bah d’kulah bah.
A recent article published in JAMA by Dr. Scott Halpern pointed out that in the very beginning of the entire COVID-19 pandemic, people went nuts over the apparent lack of ventilators. It was such a cause of anxiety that the country spent 3 billion dollars on making new ventilators. Entire companies were re-tooled so that they could either repair or manufactures these devices.
Almost everyone supported this response. Those that got everyone more ventilators were heroes. Russia, as a political coup, flew in ventilators for us. Those that worked on obtaining more ventilators took their places as heroes alongside war heroes, the American astronauts, and baseball players (there may be a slight exaggeration here, but hopefully the point comes across).
Truth to tell, however, more ventilators would not have made a significant difference (See Annals of Internal Medicine, May 7, 2020 cited in the JAMA article).
But had Governor X announced, “I am implementing more aggressive social distancing! And I have worked out a deal with Apple to increase our ability to contact trace! And, yes, I have arranged for much more extensive COVID-19 testing!” – it would barely make a blip on the popularity meter – and could quite possibly have knocked down his popularity.
THE GREAT INCONSISTENCY
Let us keep in mind that each one of these moves would have had a far, far greater impact upon reducing both the deaths and transmissions of COVID-19. (See Journal of American Medicine Journal 2020;323:24). The recently deceased Broadway star Nick Cordero might have still made it if we had all enthusiastically embraced these three moves earlier on.
Why the inconsistency? Why is there such a difference between the ventilator shortage and the three announcements of Governor X?
Enter the Maharsha in Yevamos 62a.
The author of the Maharsha was Moreinu HaRav Shmuel Eidels (1555 – 1631), a descendent of Rav Yehudah haChassid, was a Rosh Yeshiva in Posen who authored a commentary on the Gemorah that is still studied vigorously today – unfolding the latent but crucial processes of reasoning in virtually every Tosfos. He also did something so unique and rare that one is hard-pressed to find anyone else that also did it. He took on the first name of his mother-in-law, Eidel Livschitz, as his own last name in appreciation of all that she had done – in supporting him and his Yeshiva and taking care of any need that the bochurim had.
[His kever is located in Ostroh, Ukraine, and was restored in the early 1990s, by Rabbi Yisroel Meir Gabbai, of the Ohalei Tzaddikim Organization, and by Rabbi Leibel Surkis a Skver Chassid who travels far and wide to help find and restore kevarim of Tzaddikim]
THE DELAYED KAL VACHOMER
The Maharsha in Yevamos 62a asks on the Gemorah that states how Moshe Rabbeinu broke the luchos on his own accord without consulting with Hashem – yet Hashem agreed to his actions. Moshe Rabbeinu made a Kal v’chomer argument: “If someone is a Ben Naichar (Moshe knew from Hashem that this refers to someone estranged from Hashem) he may not partake of the Korban Pesach. That is just one Mitzvah of the 613. Here, however, they made an Aigel – violating all 613 – should I not, therefore, break the luchos?”
The Maharsha asks why he did not make this very argument – earlier when he was first informed by Hashem that Klal Yisroel sinned. The Maharsha answers by quoting the Baal HaIkkarim (4:15) that it was nirah l’ainayim – apparent to his eyes. In other words, a tangible seeable item or experience made for a far greater impression. Although Rav Moshe Feinstein zt”l in a responsum disagrees with this Maharsha – because how can one doubt Hashem – this concept of the description – experience gap clearly answers Rav Moshe’s animadversions and is the pshat of the Maharsha and the Sefer HaIkkarim.
The Maharsha explains how anyone can make what amounts to being a cognitive error in promoting our own interests and correct decision-making. It causes us to choose the readily imaginable over the theoretical. This Maharsha has practical public policy repercussions both in the United States as well as in Eretz Yisroel.
It even affects the behavior of doctors, and high-end medical institutions. How so? These institutions are debating the subtle nuances of whether medicine X, Y, or Z is more effective even before implementing within their own institutions the proven strategies that help prevent the spread of COVID-19 in a far greater manner.
ALSO FOR RANSOM PAYING
There may be an entirely different area of halacha – in which the Maharsha’s words have implications. That different area deals with the paying of ransoms. The implications of this area also have practical repercussions in how the State of Israel should deal with kidnapped soldiers. Specifically, should they release dozens or hundreds of hardened murderers of innocent babies, children and other victims in exchange for a soldier’s life?
The Mishna in Gittin 45b tells us that we do not redeem captives for more than their value. The meaning of course is to their value on the market as slaves. The Mishna tells us that it is “mipnei tikkun olam” – which means as public policy.
The general implication of this term is that it is a public policy enactment. In other words, in order to stop a situation where criminals kidnap Jews for a ransom a special enactment was made that prohibited paying substantially more for Jewish captives. Had this enactment not been promulgated, Jewish life would have been endangered. The enactment served to remove the incentive to kidnap Jews specifically. Jews will be halachically constrained from having to pay a premium to redeem other Jews.
The enactment, of course, would not prevent kidnappings. It would merely prevent a situation where Jews would be specifically targeted.
But the essential point is that there was a specific time and circumstance when this enactment was promulgated. Prior to the enactment, from a historical perspective, it would seem that halacha would have dictated that the ransom be paid. The Rabbis took it upon themselves to create legislation forbidding it in order to better benefit the public. It was an enactment that created a new rubric – without negative consequence.
PUBLIC POLICY WITH SOLDIERS
It can and perhaps should be argued that the situation with kidnapped soldiers (or other youth) involves no exchange of money – rather it involves the creation of a possible danger – but the enactment referred to in Gittin 45b is not relevant to our case, as it did not encompass the freeing of prisoners, or the release of a greater danger.
SHOULD THE KNESSET PASS A LAW?
Should another enactment be made like that of Gittin 45b? Absolutely – as it would save lives. Do we have the ability to do so? Halachically, we can possibly utilize the institution of Cherem – communal ban, and mimic the capability of promulgating halachic enactment that the sages once had. Have we done so yet? No. Until we do so, we should go ahead with such an exchange unless there is another mitigating factor, which we shall explore further.
Should the Knesset pass legislation limiting the government’s ability to facilitate such exchanges? Yes, it is good public policy. Have they done so? Not yet. Perhaps the reason why they have not done so is the rationale of the aforementioned Maharsha – that people see things that are vividly in front of them and not possible (if not certain) future consequences that are far worse.
MAHARSHA APPLIES TO PREDATORS TOO
Economists who discuss these type of issues have a term for it – it is called the “identifiable victim effect” – in essence, the Maharsha’s point made specific to individuals. This author once brought this issue up to a few Gedolei Torah who were involved in forcing a predator to get out of town. The point that this author was making was that these types of predators cannot be stopped and that in all likelihood the predator will just continue in another place – either another community in the United States or in Eretz Yisroel. Victims are victims, wherever they are. Since we now know that many of them have both taken their own lives and have ideated doing so, it is a matter of Pikuach Nefesh. Unfortunately, many in our community do not fully realize the damage to the innocent and the full nature of Pikuach Nefesh that predators present.
Getting back to the kidnapping issue, another interesting issue is that there are a number of Rishonim and Achronim who rule that the entire enactment is only when there is no danger to life. These opinions are cited in Pishchei Teshuvah YD (252:4). He states that if there is a danger to life the enactment does not apply. Among those who rule thus are the Meiri. Even though the majority of Achronim disagree with this point, this is a significant point of halachic debate. [As far as the predator issue goes, unfortunately, developments have now shown that there is a very significant danger to life for the victim’s predators. One such predator, now in Eretz Yisroel, left a trail of victims – with 3 young ladies suicidal and 7 others in therapy.] Family members of offenders suffer from the same point – they tend to protect their family member and leave future potential victims to the wind.
RAV VOSNER’S POINT
Regarding the exchange of murderous prisoners now for a live individual, the issue comes down to a definite saving of life now versus possibly saving many more lives in the future. Although one can perhaps argue that it is not a “possible” but a “definite”, as experience has shown – even still the exchange may be halachically necessary. Why? We are not sure which one’s they may be, and it has not been directly established who it will be – the saving of life now may outweigh the future saving of even more life. This exact rationale is presented by Rav Vosner zt”l in Shaivet HaLevi Vol. V #137.
There are two additional issues that are also pertinent. The first issue is that the terrorists are, and have always been, motivated to kidnap. One could perhaps argue that they are “maxed out” in this regard. While they could allocate more resources toward kidnapping soldiers – it is likely that such a re-allocation may be more noticeable by Israel’s intelligence, and the entire kidnapping edifice could come down on them.
RAV CHAIM OZER’S DISTINCTION
The second issue is that as far as the release of the terrorists themselves bringing about more devastation and death, the fact that the fences are more developed than they were in the past is a significant issue. It would also seem that the amount of available “manpower” is not the overriding factor in determining how much terror comes out of the territories. This may endow these past terrorists into what can be called a “Safaik Rodef.” Rav Chaim Ozer Grodzinsky (Achiezer Vol. III 72:3) address the issue of a safaik rodaif and concludes that one does not kill certain life because of the possibility of a safaik rodaif. Although the situation is not completely analogous, the difference between a certain rodaif and a possible rodaif is clearly made. Rav Feinstein zatzal also shares a similar view (see Igros Moshe CM II 69:4).
It is said that within 8 months we will b’ezras Hashem have a COVID-19 vaccine readily available. And yet, Dr. Faucci is concerned that some 25% of people or more will ignore the vaccine. There is something called “omission bias” which is a corollary of the Maharsha’s point. It deals with the human tendency to prefer a more significant harm brought on by an “omission” than a far less common type of harm brought on by a “commission” or a consequence of a direct act (see Ritov & Baron, Protected Values and Omission Bias. Organ Behav Human Decision Process. 1999; 79:2).
This is why some people refuse to vaccinate even though they know that there is more harm done without vaccinating. This is directly associated with the concept elucidated in the Maharsha.
USING THE INSIGHTS
The main point is that we should use the insights of this Maharsha to help us in making all of our public policies, whether it is in COVID-19, exchanging prisoners for soldiers, our vaccination policies, or in how we deal with predators.
Perhaps we should use a tool that was first promulgated by the founder of the Mussar Movement himself, Rav Yisroel Salanter. He spoke of the use of a personal tachbula, a form of mental imagery, in order to lead us to make the correct decision. Imagine, if all of Klal Yisroel were your children or grandchildren. You want the least harm to happen to all of them. So, what would you do? In Eretz Yisroel, the ministry of health wants to ban indoor minyanim again. Reb Aryeh Deri wants to stop that idea. We have statistics that indoor gatherings (before social distancing and masks) have 18 times more outbreaks than outdoor gatherings. What would you do?
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