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The infliction of stripes, however, is limited to those prohibitions whose violation involves an overt act; prohibitions whose violation comes about through covert inaction do not entail flagellation, certainly not the death penalty. This limitation, however, is more of an indication of classical Jewish penological theory than it is of the nature of the prohibitions which are thereby excluded. Earthly punishment, in Jewish theory, is aimed at the active, flagrant violation of the law; it is not employed to induce general obedience to the law nor to force citizens to do their duty.
Although there is no flogging for these prohibitions [of standing idly by the blood of one's neighbor], because breach of them involves no action, the offense is most serious, for if one destroys the life of a single Israelite, it is regarded as though he destroyed the whole world, and if one preserves the life of a single Israelite, it is regarded as though he preserved the whole world Maimonides, , 3. It is a fact of history that in Jewish society - biblical, Talmudic and medieval - non-prosecutable injunctions, by their sheer religious weight, were effective in their deterrent power.
It would be misleading, therefore, to interpret the lack of judicial punishment in Jewish law for the innocent bystander who fails in his duty to come to the rescue of his fellow man in distress as indicating that the duty is merely moral. Rather Jewish law views such failure as nonfeasance, a formal offense of inaction delictum mere omissivum where action is a duty required by law.
Definition of terms
The Extent of the Obligation to Rescue A. In Monetary Terms We have already seen that, according to the Talmud, had the duty of the bystander to come to the rescue of his fellow man in peril been derived as an extension of the law regarding the restoration of lost property, it would have been limited to the personal ability of the rescuer. Thou shalt not stand idly by , however, implies an allencompassing duty - including one's financial resources as well.
But this obligation does not represent a lien on the property of the bystander; the duty remains a personal one. Thus, although one's financial resources must be utilized without apparent limit 4 in order to save the victim, the rescuer has the right to sue the rescued party in order to recover the money expended R. This holds true even if the victim protests, wishes not to be rescued, and later refuses to compensate the rescuer. Asher b. Yehiel, d. The rescuer's right to compensation for expenditures and losses incurred are alluded to rather briefly and superficially in the sources.
It seems to me that rabbinic authors found it unnecessary to go into detail because the Talmudic references to the law of lost objects as being relevant to the duty to rescue people in peril meant to them that the rules of compensation which obtain in restoring lost objects to their owners - which are spelled out in great detail in the Talmud, commentaries and codes - could be applied, where necessary and appropriate, to cases involving the saving of life - with proper provision being made occasionally for the special significance of the latter.
An examination of the rules of compensation for the restoration of lost property yields the following conclusions:. The actual act of rescue, being the fulfillment of a religious duty mitzvah , warrants no monetary compensation Tosafot , s. If the actual act of rescue takes places during working hours and, therefore, requires the sacrifice of the rescuer's pursuit of a livelihood, he is entitled to a minimal wage.
If the court is not in session, the law of lost objects declares that his own economic interests take priority over the economic interests of his fellow M. Bava Mezia This declaration is obviously inappropriate in the case of the peril of one in distress; it seems clear that in the latter case full compensation for the labor of the rescuer would be the rule. The cost of damages and disabilities incurred by the rescuer in the course of the rescue operation, however, could not be recovered by the rescuer.
The Jewish law of tort obligates the tortfeasor, and the tortfeasor only, for damages incurred; no one else - not even the one as interested as the rescued party himself - is so obligated. The personal nature of the duty that one has to rescue has led at least one later medieval authority to limit the rescuer's right to recover the losses he incurred in the course of his rescue operation in a number of ways.
The rescued party must, it is true, compensate his rescuer for his losses. But if the former is bankrupt, he need not make said compensation, even if he subsequently comes into fortune M.
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Peah and Tur Yoreh De'ah . The rescuer's right to be compensated for his losses exists only if the rescue operation is successful! If he failed in his attempt, his right for compensation is, at most, that of a minimum wage for labor expended. The obligation to compensate the rescuer for his losses devolves upon the rescued party himself and upon no one else, not even his close relatives R.
Yehiel, Sanhedrin It is relevant to note that these three limiting rulings were not regarded as discouraging bystanders to do their duty. On the contrary, the very reasoning behind them is:. For the reason [the bystander] is going to such lengths, even to the extent of incurring monetary losses, is not that he is doing so in behalf of his fellow [who is in peril] exclusively, but rather he is also doing so in his own behalf to save himself [i.
Moreover, his [heavenly] reward is a very great one indeed R. Samuel b. Moses de Medina of Salonica, d. At the Cost of the Rescuer's Life Much more complicated is the question to what extent the bystander is duty-bound to come to the rescue of one in peril when such action would endanger his own life. Is self-sacrifice a legal duty? Jewish law answers in the negative, but a word of explanation is called for. The explanation concerns itself with two tannaitic passages.
On the one hand, one may not commit murder to save one's own life. Johanan said in the name of R. Simon b. Jehozadak: By a majority vote it was resolved in the upper chambers of the house of Nithza in Lydda that in every [other] law of the Torah, if a man is commanded "Transgress and suffer not death," he may transgress and not suffer death, excepting idolatry, incest [which includes adultery] and murder B.
Sanhedrin 74a. It is generally agreed that this conference at Lydda took place during and in the face of the Hadrianic persecutions which posed a most serious threat to Jewish religious life in Palestine ca. Graetz, , ; Halevy, If two are traveling on a journey and one has a pitcher of water - if both drink they will die, but if only one drinks, he can reach civilization.
The Son of Patura taught: It is better that both should drink and die rather than that one should behold his companion's death. Until R. Akiba came and taught: That thy brother may live with thee Leviticus - thy life takes precedence over his life B. Bava Mezia 62a. Not much is known about Judah?
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He probably lived about the end of the first century or the beginning of the second century C. Rabbi Akiba himself died during the Hadrianic persecutions. Thus, the two tannaitic teachings, that of the conference at Lydda and the one emanating from the controversy between the Son of Patura and R. Akiba, are more or less contemporaneous. In order to understand the reasoning behind these two statements, we cite the following passage regarding the refusal of the rabbis to allow one to commit murder in order to save his own life.
Talmud - Wikipedia
And how do we know that this principle applies in the case of murder, i. It is common sense. Rava answered, "Let him rather slay you than that you should commit murder. What makes you think that your blood is redder than his? Perhaps his blood is redder than yours" B.
Yoma 82b; B. The apparent contradiction in the two passages produces the principle that, all things being equal, one may not decide - by affirmative action - whether one's life takes precedence over that of one's neighbor: In the first passage, affirmative action would have been tantamount to declaring that his companion's blood was redder than his own - a declaration which Jewish ethics is not prepared to endorse.
There are situations in life where inaction is the lesser of two evils Kirschenbaum, Our exposition heretofore has been devoted to a situation where the Good Samaritan can save his fellow man only at the price of his own life.
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Under such circumstances rabbinic law exempts the citizen from the duty of self-sacrifice and absolves him from any moral blame. At the Risk of the Rescuer's Life Is one obligated to come to the rescue of his neighbor in distress if the rescue operation may involve a risk to one's life and to one's well being?
Or, at what point does the danger to the life or the well-being of the bystander become so remote as to be inconsequential in the face of one's duty to save someone in peril?
This question as to whether the Good Samaritan need put his own life in possible danger to save his fellow from certain death is the subject of sustained controversy among rabbinic authorities. Summarized briefly, rabbinic law today declares officially that there is no such duty , but qualifies this declaration in a number of ways: 1 it exhorts the citizen, "One must not overly protect oneself"; 2 it urges each case to be judged on its own merits, "It seems that everything depends upon the individual circumstances"; 3 the volunteer who does endanger his life and limb is extolled as acting above and beyond the call of duty and as performing a saintly act middat hasidut ; 4 the degree of jeopardy which legally exempts the bystander from his duty must be a most substantial one, great enough to deter him from saving his most precious possessions had they been in similar circumstances; and 5 exceptionally, the medical practitioner is expected to treat patients even under circumstances which represent serious danger to his own life.
If a tyrant says to a Jew, "Allow me to amputate one of your limbs" an amputation which represents no danger to life , "or else I will kill your fellow Jew," some [authorities] say that he is obligated to allow his limb to be amputated since he would not die R. Menahem Recanati, d. This rather startling decision, which makes contributions of organs for transplanting obligatory under Jewish religious and ethical law, is the product of an Italian legalist and mystic of the late thirteenth and early fourteenth centuries.
The startling nature of the decision is also evident from the fact that about years later it is quoted verbatim and sent to Radbaz Rabbi David b. Zimra, d. Refuting the prooftext offered by his Italian predecessor, Rabbi ben Zimra maintained that no precedent could be cited for such an obligation. Indeed, there was always the possibility that an operation of this sort might prove to be dangerous to the life of the individual. And he concluded:. Moreover, it is written, And her [i. How can one imagine that a person would allow his eye to be blinded or his hand or foot to be cut off so that his fellow not die?
I, therefore, see no justification for his decision.
Talmud and Midrash
It is an act of saintliness middat hasidut [i. If, however, there is a possible risk of life, then [one who agrees to the amputation] is a foolish saint hasid shoteh , 14 for the possible danger to oneself takes precedence over the certain danger to one's fellow. I have written what appears in my humble opinion [to be the correct understanding of the law] Responsa Radbaz III, . Radbaz' responsum persisted to this century as the leading decision on the matter. Thus, even according to those who maintained that one is obligated to place oneself in jeopardy in order to save another, Judaism ordained neither a legal obligation nor a moral imperative to actually amputate or donate a limb or an organ to save someone else's life.
On the other hand, although an operation of this kind invariably involved a measure of danger to the amputee or donor, the tendency of the authorities was not to denigrate the volunteer but rather to view his act - albeit with some hesitation - as a saintly one. This tendency has reached its culmination in the responsum of former Sephardic Chief Rabbi of Israel Ovadia Yosef, published only a few years ago Yosef, On the basis of Talmudic texts and post-Talmudic opinions, Rabbi Yosef, too, sees in Radbaz the decisive arbiter settling the question raised: 1 one is not obligated to put oneself in serious jeopardy to save one's fellow.
However, recognizing present-day transplantation procedure as involving a degree of danger to the donor less than that contemplated in the strictures of Radbaz, Rabbi Yosef rejects the prohibition of one colleague and overcomes the hesitation of another and permits, nay, gives his blessing to the donation of a kidney to a patient in dire need thereof in the following words:. But according to the information we have received from competent and God-fearing physicians, the danger [to the donor] involved in extracting a kidney is generally very small.
Inasmuch as Radbaz and those of his school hold, therefore, that under such circumstances the mizvah , thou shalt not stand idly by , obtains, it follows that we must allow a healthy person to donate one of his kidneys, to save the life of his fellow Israelite whose life is seriously threatened by a disease of the kidneys.
- The Bystander's Duty to Rescue in Jewish Law / Aaron Kirschenbaum.
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