… for one life is not set aside for another
OHOLOT 7:6
The date 9/11 is indelibly imprinted upon the national consciousness of America. The horrific loss of life in the terrorist attacks upon the Twin Towers of the World Trade Center was an unforgettable tragedy; the attack upon the Pentagon, the nerve-center of military security, exposed the vulnerability of the nation's defense apparatus. But it was the fourth, thwarted, attack that is remembered for the heroism of the victims.
A domestic passenger flight flying from Newark International Airport to San Francisco, United Airlines Flight 93, was hijacked by terrorists some forty-five minutes into the flight. The hijackers breached the cockpit, overpowered the pilots and, taking control of the aircraft, directed it towards Washington, D.C. The hijackers' intended target is thought to have been the White House or possibly the Capitol.
The terrorists' master plan apparently called for carrying out that attack simultaneously with the attacks upon the World Trade Center and the Pentagon. However, due to airport congestion, the airplane was delayed on the ground more than half an hour. During the course of the hijacking, flight attendants and passengers, using GTE airphones and cell phones, succeeded in making numerous calls to family and friends as a result of which they learned of the other terrorist attacks.
The passengers, apparently on the basis of a vote, determined to seize the controls of the plane from the hijackers. Of the ensuing events little is known with certainty. Early reports conjectured that the passengers were successful in overtaking the plane and that they knowingly caused the plane to crash in order to prevent greater loss of life. Strikingly, the mother of one of the passengers, herself a United Airlines flight attendant, left a message on her son's cell phone urging an attempt to take over the aircraft. Much later, a report issued by a government investigating commission gave no indication that the passengers broke through the cockpit door but made it clear that the passengers' actions thwarted the plans of the terrorists. Recordings of cockpit conversations reveal that the terrorists feared that they would imminently lose control and debated whether to crash the plane immediately or whether to delay such action. The passengers' death certificates state the cause of death as homicide and those of the hijackers list suicide as the cause of death. It is unclear whether the hijackers ultimately did crash the plane deliberately or whether they simply lost control. Had the passengers been successful in gaining control of the plane, the ending might well have been much happier. Among the passengers was an aviation executive who had extensive experience in a cockpit as a private pilot. Another passenger was experienced as an air traffic controller with the Air National Guard. Given those facts, there is scant reason to question the halakhic propriety of the course of action taken by the passengers.
Far more complex is the issue of purposely shooting down the plane and thereby causing the death of innocent passengers. Air Force and Air National Guard fighter jets were unable to intercept the planes headed to the World Trade Center and the Pentagon but indications are that they would have reached the fourth plane in time to prevent it from reaching Washington. The option of shooting down the commercial jet was certainly given serious consideration and a decision to do so may actually have been reached.
The propriety of purposely causing the immediate death of the passengers aboard the plane in order to prevent further loss of life hinges upon the applicability of a provision of Halakhah recorded by Rambam, Hilkhot Yesodei ha-Torah 5:5:
…if the heathen said to them, 'Give us one of your company and we shall kill him; if not we will kill all of you,' let them all be killed but let them not deliver to them [the heathens] a single Jewish soul. But if they specified [the victim] to them and said, 'Give us so and so or we shall kill all of you,' if he had incurred the death penalty as Sheba the son of Bichri, they may deliver him to them… but if he has not incurred the death penalty let them all be killed but let them not deliver a single Jewish soul.
Rambam's ruling is based upon the explication of the narrative of II Samuel 20:4-22 found in the Palestinian Talmud, Terumot 8:12. Joab, commander of King David's troops, had pursued Sheba the son of Bichri and besieged the town of Abel in which Sheba sought refuge. Thereupon Joab demanded that Sheba be delivered to the king's forces; otherwise, Joab threatened to destroy the entire city. On the basis of the verse, "Sheba the son of Bichri has lifted up his hand against the king, against David" (II Samuel 20:21), Resh Lakish infers that acquiescence with a demand of such nature can be sanctioned only in instances in which the victim's life is lawfully forfeit, as was the case with regard to Sheba the son of Bichri who is described as being guilty of lèse majesté. However, in instances in which the designated victim is guiltless, all must suffer death rather than become accomplices to murder. R. Yoḥanan maintains that the question of guilt is irrelevant; rather, the crucial factor is the singling out of a specific individual by the oppressor. Members of a group have no right to select one of their number and deliver him to death in order to save their own lives. Since the life of each individual is of inestimable value there is no basis for preferring one life over another. However, once a specific person has been marked for death in any event, either alone if surrendered by his companions or together with the entire group if they refuse to comply, those who deliver him are not to be regarded as accessories. Rambam's ruling is in accordance with the opinion of Resh Lakish. Both opinions are cited by Rema, Shulḥan Arukh, Yoreh De'ah 157:1.
Sheba ben Bichri was doomed to die in any event. Since Sheba would perish together with the other inhabitants of the besieged city, refusal to deliver him to the hands of the enemy would have served to spare his life for only a brief period. It is evident that the discussion in the Palestinian Talmud is predicated upon the premise that it is forbidden to cause the loss of even ḥayyei sha'ah, i.e., a brief or limited period of longevity anticipation, of a particular individual in order to preserve the normal longevity anticipation of a multitude of individuals.
Hazon Ish, Gilyonot le-Hiddushei Rabbenu Hayyim ha-Levi, Hilkhot Yesodei ha-Torah 5:1, s.v. u-mi-kol makom, demonstrates the same principle on the basis of his analysis of the well-known controversy between R. Akiva and Ben Petura recorded by the Gemara, Bava Mezi'a 62a. The case involves two people who are stranded in a desert with but a single container of water. There is sufficient water to sustain one person until he reaches safety; however, if the water is shared, neither will survive. Ben Petura declares that they should share the water and "let not one witness the death of his fellow." R. Akiva rules that the owner of the water should drink it himself in order to save his own life. In support of that ruling R. Akiva cites the verse, "that your brother may live with you" (Leviticus 25:36). That biblical command requires that a person enable his brother to live with him but not that he prefer his brother over himself. If so, the life of another person should not be preferred over one's own life with the result, as announced by R. Akiva, that "your life takes precedence."
Hazon Ish, as were others before him, was troubled by the fact that Ben Petura's conflicting ruling is apparently refuted by R. Akiva's quite cogent inference drawn from the verse "that your brother may live with you" – but not at the expense of your life. Accordingly, Hazon Ish asserts that Ben Petura is actually in agreement with the basic principle enunciated by R. Akiva with the result that, in a situation in which only one person can receive any longevity benefit, one's own life takes precedence over that of another. Thus, for example, if two individuals have been poisoned and one of the two is in possession of a sufficient quantity of an antidote to save one person but, if divided, the quantity available will prolong the life of neither, Ben Petura would agree that the owner of the antidote must administer it to himself. Ben Petura would also concede that, if the antidote belongs to a third party, the halakhic rules of triage would apply. Ben Petura, asserts Hazon Ish, disagrees only in the case of the container of water because, if the water is shared, the life of each of the stranded persons will be prolonged at least minimally, whereas administering less than the requisite dose of the antidote would be entirely without purpose. Ben Petura, in disagreeing with R. Akiva, does so because he recognizes a duty of rescue with regard to even ḥayyei sha'ah. Since sharing the water serves to prolong the life of both at least minimally, such sharing is an act of loving one's fellow as oneself, i.e., both lives are rendered equal. Put in somewhat different terms, since every moment of life is of infinite value and all infinities are equal, the fact that if one person drinks the entire quantity of water he will survive and enjoy a normal life-span is of no consequence. R. Akiva disagrees in maintaining that loving one's fellow as oneself, but not more than oneself, requires preservation of one's own normal longevity anticipation even if such rescue precludes prolongation of the ḥayyei sha'ah of another.
Consequently, argues Hazon Ish, even according to R. Akiva, it is only self-preservation that can excuse ignoring the ḥayyei sha'ah of another. It would then follow that, if the container of water belongs to a third party who is not in danger of perishing as a result of dehydration, that person, even according to R. Akiva, must divide the water equally between the two persons at risk. The principle that emerges is that a person dare not ignore the ḥayyei sha'ah of one putative victim even to carry out the complete rescue of another victim or even of many such victims. A fortiori, an overt act having the effect of extinguishing even an ephemeral period of life-anticipation of even a single individual cannot be countenanced in order to save the lives of many.
The only situation in which the life of another individual may be sacrificed in order to rescue a putative victim is in the case of a rodef, or pursuer. In such cases, as codified by Rambam, Hilkhot Rozeaḥ 1:9, intervention in order to preserve the life of the victim is mandatory. In the case under discussion, the airplane pilot certainly must be categorized as a rodef even though he acts under duress. However, the passengers inside the airplane are in no way complicit in the potential death of the innocent people in the building targeted for destruction. Although the life of the rodef is forfeit, provided that taking the life of the rodef is necessary in order to rescue the victim, it is not permissible to cause collateral damage in the nature of the death of an innocent third party in eliminating the threat posed by the rodef. The pilot, who is intent upon using the airplane to bring death upon innocent victims, may be prevented from doing so even if it is necessary to kill him in order to accomplish that end but it is not permissible to cause the death of innocent passengers who are no more than passive bystanders even for the purpose of preserving the lives of a greater number of people.
Some time ago, Philippa Foot presented a moral dilemma in formulating the "Trolley Problem." The situation involved the driver of a trolley rounding a bend. Five track workmen are seen to be engaged in repairing the track. The track is surrounded on two sides by a steep mountain and the trolley is travelling much faster than the workmen could possibly run. The driver steps on the brake in order to avoid striking the five men. Tragically, the brakes fail. The driver sees a spur of track in front of him leading off to one side. The driver can quite easily steer the trolley so that it will travel down that spur and thus save the lives of the five men on the track straight ahead. Unfortunately, there is a single workman who is repairing that spur. The workman cannot possibly get off the track before the trolley hits him. If the driver does nothing, five men will perish. If he turns the trolley onto the spur only one person will die but that person is at this moment in no danger whatsoever. Is it morally permissible to turn the trolley so that it claims the life of a single person in order to rescue five individuals?
A situation quite similar to that of the runaway trolley is described by Hazon Ish, Sanhedrin, no. 25, s.v. ve-zeh le-ayyein. Hazon Ish describes a situation in which a bystander witnesses the release of an arrow aimed at a large group of people. The bystander has the ability to rescue the intended victims by deflecting the arrow; however, if he does so, the arrow will claim a single victim who heretofore was endangered in no way whatsoever. Hazon Ish expresses doubt with regard to the permissibility of such intervention. If the hypothetical is changed from an arrow to a hand grenade, the moral dilemma acquires contemporary relevance.
Hazon Ish's perplexity seems to be based upon the possibility of considering the situation to be analogous to triage. A person who comes upon multiple accident victims must perforce choose which of the many victims he will attend. Triage for the purpose of rescue is quite different from selection for death. A person does not have license to designate another individual for death even if his motive is the rescue of a far larger number of lives. However, if the same person can save one, but not all, of the victims, he is required to intervene. In doing so, he is in no way complicit in the death of others. His selection is for rescue rather than for death; acts of rescue are profoundly different from acts of homicide. A person capable of doing so may, and indeed must, save as many lives as possible even if such rescue entails abandoning one or more victims to their fate.
To be sure, in the case of the runaway trolley, the flying arrow, or the hand grenade, the original act to which the ultimate death of the victims is to be attributed was already completed before the moral agent confronts a choice between intervening for the purpose of deflecting a lethal weapon and passive non-intervention. The motive for intervention is certainly the rescue of those who will be saved, not the death of the person who will actually die in their stead. It is, however, difficult to understand how intervention in the form of deflecting a lethal weapon can be regarded as a simple act of rescue governed by principles of triage. In the given hypothetical, it is the act of deflection that endangers a previously unendangered person. The intervener has not simply rescued a larger group of victims; he has in an active, overt manner caused the death of an innocent person. Hazon Ish himself emphasizes that even R. Yoḥanan, who maintains that in the event that the victim has already been designated for execution he may be delivered to the enemy, would agree that one may not actually kill the designated victim in order to spare other victims. Hazon Ish argues that R. Yoḥanan permits only indirectly hastening the death of a designated victim by delivering him to the enemy but does not sanction a direct act of homicide. It seems to this writer that deflection of a lethal weapon constitutes a direct rather than an indirect act. That objection has been raised by R. Benjamin Rabinowitz-Te'umim, No'am, VII (5724), 357. R. Eli'ezer Waldenberg, Ẓiz Eli'ezer, XV, no. 70, addresses Hazon Ish's hypothetical and concludes that passive non-intervention is the only acceptable mode of conduct.
Putting that point aside, any argument in support of deflecting the arrow must be based on the premise that a distinction can be drawn between intervention for purposes of neutralizing a direct danger and overt delivery to death in order to ward off future deaths.
There are authorities who, in certain limited cases, permit sacrificing one life to save another when failure to intervene would result in the death of both persons. The question of killing a neonate whose forehead has emerged from the birth canal in order to save the life of the mother when, otherwise, the lives of both would be forfeit is raised by R. Akiva Eger, Tosafot R. Akiva Eger, Oholot 7:6, no. 16, but left unresolved. R. Akiva Eger does however cite Teshuvot Panim Me'irot, III, no. 8, who rules that such a course of action is permissible. R. Israel Lipschutz, Tiferet Yisra'el, Oholot 7:6, Bo'az, sec. 10, similarly comments that, "perhaps it is permissible to destroy the infant in such circumstances in order to rescue the mother."
R. Saul Mordecai Arieli, Or Yisra'el, vol. 8, no. 3 (Adar Sheni 5763), compares the case of the airplane seized by terrorists planning to crash it into the Pentagon to the situation of the mother in childbirth in arguing that it is permissible to cause the death of innocent passengers by shooting down the plane since the latter are doomed in any event. Nevertheless, it is virtually self-evident that such a comparison is inapt. If correct, that reasoning should apply as well to the situation described in the Palestinian Talmud in which one person has already been designated for death and failure to deliver him to the enemy will result in the death of all. R. Yoḥanan and Resh Lakish disagree with regard to whether it is permissible to become even indirectly complicit in the death of the doomed victim by delivering him for execution but all agree that he may not actively be put to death in order to spare the lives of others. The case of the woman in childbirth is quite different because both mother and child are reciprocal pursuers, i.e., each is in the process of causing the death of the other. Non-intervention is mandated as explained by the Babylonian Talmud, Sanhedrin 72b, because "heaven is pursuing her" or, in the words of the Palestinian Talmud, because "you do not know who is pursuing whom." The rationale for non-intervention is either that a natural physiological process is an "act of God," and hence the person who is the instrument of danger cannot be categorized as a pursuer, or that intervention in cases of pursuit is warranted only in order to preserve the life of the victim but in a case of mutual pursuit each party is both victim and aggressor and, consequently, the rule is non-intervention.
The authorities who permit intervention in childbirth do so only because they regard the exception to the law of the pursuer formulated by the Gemara to be limited to activities of mutual aggression in which, barring intervention, one will prevail while the other will perish but the bystander is in no position to determine which of the two will live and which will die. In such situations the bystander may not choose between the two on the basis of the law of pursuit. However, they contend, if in the absence of intervention, both will die, each of the two must be regarded with certainty as being a rodef. Accordingly, those authorities regard intervention in order to rescue one of the parties to be permissible since, fundamentally, intervention is for the purpose of eliminating a rodef whose life is forfeit. Consequently, they regard intervention as a permissible act of rescue rather than as an act of selection for death. However, it is quite evident that this line of reasoning is not applicable in the case of innocent airplane passengers who are not at all engaged in pursuit. There are no grounds actively to cause the death of passengers in order to save others despite the fact that they, too, are doomed.
Me'iri, Sanhedrin 72b, expresses the novel view that, in the case of a woman in "hard travail," although a third party is barred from destroying the infant in order to save the mother because of inapplicability of the law of pursuit, nevertheless the mother herself may exercise the right of self-defense to save her own life. A similar view is held by R. Joseph Saul Nathanson, Teshuvot Sho'el u-Meshiv, I, no. 22.
Nor is the situation comparable to that described by the Gemara, Bava Kamma 26b, in which a child is thrown from a roof but, before landing and perishing from the fall, he is stabbed to death by another person. The majority view is that neither party incurs capital punishment. As explained by the medieval commentaries, the first performed a lethal act but did not actually kill. The second administered a coup de grace, but only after a lethal act had already been initiated and thus his act is comparable to extinguishing the life of a treifah. Causing the death of a treifah is an act of non-capital homicide because the cause of death has already been set in motion and capital punishment is administered only if the perpetrator has extinguished kol nefesh, i.e., "an entire life." The airplane passengers cannot be considered as being in that category because no lethal act that would result in the loss of their lives has actually been initiated. Moreover, in terms of normative Halakhah, a treifah may not be killed to preserve the life of another individual.
Rescue of human life is a divine mandate, but that imperative does not constitute license to commit an overt act of homicide. At times, passive non-intervention is the only morally acceptable option.
