Justice and Responsibility: Not to surrender even one life

In 1965 a scholar by the name of David Daube wrote about a case in rabbinic literature that has become a small, but endlessly impressive, book on one specific subject. Writ large, the issue is this: what would you sacrifice for personal, communal or societal preservation? Whom would you surrender, betray and hand over if you felt your community or society to be under threat?

In a famous case in the Talmud, the rabbis ask themselves – can you give up someone in your camp for the sake of preserving the wider community?

It is taught: A caravan of persons who were traveling on the road, whom non-Jews came across and said, ‘hand over to us one of you and we will kill him, and if not we will kill you all’: even if they will all be killed, they should not hand over one soul from Israel. But if they had designated one to them, like Sheva son of Bichri, they should deliver him and should not all be killed. Rabbi Shimon ben Lakish (Resh Lakish) said, ‘That is only if he is capitally liable like Sheva ben Bichri.’ And Rabbi Yochanan said, ‘Even if he is not capitally liable like Sheva ben Bichri’. (yTerumot 8:4 46b)

In other words, if you have the request for an unnamed victim to be killed to save everyone else, then you may not hand anyone over. We should not be complicit in the act of selection. But if a specific person is mentioned then you may hand him over – because, I suppose, there must be good reason for it…

Now listen to part of the earliest discussions of this sort of slightly earlier in the Mishnah:

If a non-Jew demands, ‘hand over one of your women that she is defiled and if not we’ll defile all the women’ let them all be defiled, one should not betray a single life in Israel.” (mTerumah 8:12).

Where the Mishnah is unequivocal – there is to be no handing over of a woman – the Yerushalmi Talmud (drawing on earlier materials) shows that an individual, if specifically named can be given up. Except for our potential resistance figure of Resh Lakish who says, you cannot hand just anyone over, but they have to be already considered to be guilty (what is meant by this is somewhat obscure, since plainly it does not mean giving jurisdiction to Roman courts). The cases are not identical but the flow of argument is apparent.

Sheva ben Bichri – A story of accommodation for protection

But what of our story of Sheva ben Bichri. He’s a character in II Samuel 20 who plots against King David. In giving chase for him Joab, the military chief, and company arrive at a town to destroy it with Sheva ben Bichri inside. A wise woman, so we’re told, speaks with Joab and establishes that all he wants is Sheva ben Bichri and so, at his request, she has Sheva ben Bichri beheaded and thrown over the town walls. In so doing, her city is spared. You see the general idea – demand one person, he can be given up for the sake of preservation of your community, your town, your nation.

We move from the defilement of women (of which you can figure out the euphemism for yourself) to an accommodation to the marauding political power.

But listen to how our midrash, centuries later than the biblical text, describes this wise woman, gradually enabling the capitulation of the community to surrender one wanted man:

“Straightaway, ‘What does King David demand?’ they asked her. ‘A thousand men,’ she replied, ‘and is it not better [to sacrifice] a thousand men than that your city be destroyed?’ ‘Let everyone give according to his means,’ they proposed. ‘Perhaps he can be persuaded to forgo a little,’ she told them. She then pretended to go and appease him, and returned with the number reduced from a thousand to five hundred, then to one hundred, to ten, and finally to one, who was a lodger [stranger] there, and who was he? Sheba the son of Bichri. Forthwith, Then they cut off the head of Sheba the son of Bichri.” (Genesis Rabba 94:9)

In other words, she starts high and then lowers the ‘cost’ of self preservation, such that no-one will refuse to give up just one person. I mean we were going to do it for a thousand, but now all they want is one (after some clever negotiations) and he’s not even a citizen…a mere refugee…a stranger.

Echoes of Abraham

But stop a moment and listen to the echoes of our Torah portion (Genesis 18): Abraham argues with God on hearing the news of God’s plan for Sodom and Gemorrah.

23 Abraham came forward and said, “Will You sweep away the innocent along with the guilty? 24 What if there should be fifty innocent within the city; will You then wipe out the place and not forgive it for the sake of the innocent fifty who are in it? 25 Far be it from You to do such a thing, to bring death upon the innocent as well as the guilty, so that innocent and guilty fare alike. Far be it from You! Shall not the Judge of all the earth deal justly?”

השופט כל הארץ לא יעשה משפט? – Shall not the judge of the earth deal justly?

Abraham bargains with God from 50 innocents to 10 innocents. If there are just 10 innocent people in the city, God will not destroy it. Whereas the wise woman negotiates down the death of just one man in a negotiation against King David’s army chief, Abraham negotiates down to save the life of all on account of just 10 men.

And now we have Lot. Willing to hand over his daughters for the protection of his guests. His guests who, by the way, save him and his family as they dramatically escape from certain heavenly destruction. In Lot’s actions we are confronted with all our rabbinic texts rolled into one – women, guests, and a crowd demanding those on the inside be brought out.

Hand them over or be destroyed. And the Sodomites are not interested in defiling Lot’s daughters – presumably that can happen at any time. They want the strangers. Lot’s resistance is futile.

But all these stories and laws point to a question that we do not often face, at least we are blessed in not having to confront marauders or a baying mob or a vicious empire. Our days of being forced to hand over our own (that is Jews) have mercifully passed for the last century at least. But David Daube is not only (or even mainly) writing about the Holocaust when he gives his lectures on the subject. He writes in 1965 in Berkeley California. He is clearly focussed on student sit-ins, the Vietnam War, civil rights movements and so on. He obliquely references them all and they all weigh heavy on a brilliant examination of our rabbinic texts.

Accommodationism, the Jewish Trolleyology

Why did the texts move from an absolute refusal to hand anyone over to the company of men to permitting a named person to be handed over? Because, according to Daube, in the pressing urgency of a regime that bears down on you, you may need to make accommodations to their authority, because unspecified resistance is futile. The historical context of Roman oppression in the first two centuries of the common era, clearly made for the ruling that one should hand over a named individual (at least they were already known to the authorities), except that the sage Resh Lakish tries to narrow this rule and argues only on certain grounds may that be done.

All this leads Daube to say the following:

“This…, it is to be feared, shows what, under intolerable pressure, when the spirit is broken, might occur despite any high-minded, farsighted, carefully balanced rulings.” (p.51)

And in his introduction he states, “In general I shall leave it to the reader to draw parallels with the modern world, and to work out the bearing on them of the reflections and insights of the ancient Rabbis.” (p.2)

Not one life shall be handed over – ואל ימסרו להם נפש אחת

There is a substantial question here that we are faced with when thinking about these issues. Fundamentally, it is a question of preservation and of how willing we are to give up those in our society for our perceived salvation. As I said, writ large, the issue is this: what would you sacrifice for personal, communal or societal preservation? Whom would you surrender, betray and hand over if you felt yourself to be under threat?

Remember Resh Lakish, our voice against over accommodation. He uses a curious term for the named individual who must be guilty. The term implies liable for the death penalty, but it is obscure what he means. I rather think of it this way – that the powerful can construct a narrative that makes anyone without power seem guilty. To wit we blame the poor, the refugee, the pregnant woman, the bereft, the sick, the vulnerable. We can transfer guilt all too easily in a society that has made the apparently powerless individual feel without agency and sovereignty. It is easy to fall on hard times, it is harder to recognise that whilst few are guilty, we are all responsible.

Resh Lakish reminds us that we must not make the innocent guilty and we must preserve their dignity and do our utmost to protect them. We’re told that the society of Sodom is so graspingly evil, they kill the poor and their benefactors. They are willing to give over the weakest of their society. They make the vulnerable the most guilty whilst heaping benefit upon themselves as powerful. Of course they never realise that they may be the next to be poor and apparently, in their minds, deserving of death.

Cries that reach to heaven

In the midrash we’re told that Sodom is so evil they even punish charitable giving with death. The midrash says that one of Lot’s daughters is found guilty of giving bread to a poor man and his burnt to death – it is her cries that reach to heaven, to God, who determines to stop what is happening.

Are we prepared to fight for 1000, 100, 50, 10, 4, 1? We must not be put off from the burden of responsibility that weighs heavily on us today. That as Jews, as human beings, the plight of the victimised minority, the prospect of lists of followers of one religion, the rise of baying mobs, of guiltless poor, and the elevation of those ill-suited to be in power, anywhere in the world – be it in the USA or right here – is always our greatest social concern. As Rabbi Dr Israel Mattuck said in 1953 in writing about the prophets:

“What did the Prophets mean by social justice? Consideration for the human rights of all men with special attention to the rights and needs of society’s weaker members…Justice requires care for the weak. Men’s needs constitute a claim on society. The Prophets were animated by a pained sympathy for the poor, who suffered from the rapacity of the rich, the venality of judges, the neglect or despotism of rulers…

Justice requires that society should provide for the needs of its weaker members. ‘To judge the cause of the needy’ meant more than to protect them from oppression by the strong and rich. It meant also to protect them against want, to supply them with the means of livelihood…Social justice was not, however, for them [the prophets] an end in itself. They were not primarily social reformers. They demanded social reform as an integral part in religious reform. Their humanitarianism inhered in their apprehension of, and devotion to, God. God demanded social justice. By it a nation would bind itself corporately to Him. Religion, therefore, lays on government the obligation to promote social justice.” Rabbi Dr Israel Mattuck (The Thought of the Prophets, 1953, p.92 and 96).

Shall not the judge of the earth deal justly? Well the question must first be addressed to us and we must not find our answer comes up short. May that be God’s will and let us say: Amen.

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