– Author: Rav Doron Podlashuk
The value of life
The Torah holds the value of life to be of paramount importance, overriding almost all the commandments in the Torah[1]. Two verses in the Torah delineate the guidelines of this principle, giving halachic parameters to this fundamental tenet. The first focuses on the positive sacrosanct value of life. “Vechai Bahem – And you shall live by them[2]“ from which the Sages[3] derive, that one can even violate Yom Kippur or Shabbat if one’s life is in danger. Moreover the Talmud states[4] unequivocally that even “safek pikuch nefesh” – “a doubtful life threatening situation overrides almost all the Torah’s commandments.
The other verse focuses on the negative aspect of one not heeding to this value. “Lo taamod al dam reicha[5]“- “don’t stand idle by your brother’s blood”. The Sages[6] derive from this that one has to make every effort save another’s life, if need be even by paying people.
Perhaps this idea can be best encapsulated by the Mishna in Sanhedrin[7]
“Therefore man was created alone, to teach you that anyone who kills even one jewish[8] life – it is as if he destroyed an entire world; and anyone who saves even one jewish life is as if he saved an entire world”
To what extent does one have to go?
The real question is to what extent one has to go to try and save someone? What happens if trying to save someone else entails endangering one’s own life?
One of the exceptions to the overriding jurisdiction of “Pikuach Nefesh” is murdering someone else in order to save oneself. The Talmud[9] relates that when someone came to ask Raba if he is allowed to kill someone for if not, they would kill him; Raba responded “Is your blood redder than his”? From this answer Tosfot also derive the opposite extreme. One wouldn’t have to sacrifice one’s own life in order to save someone else[10]. This principle is echoed in the famous discussion between R’ Akiva and Ben Petura regarding two people walking in the desert with only enough water for one of them. Rabbi Akiva states that one’s own life precedes that of one’s friend and you don’t have to share your water with him[11].
Placing oneself in danger where death is not imminent
However the question remains – as to what extent one has to endanger oneself in order to try and save another. This question is not directly addressed in the Talmud or by the Rishonim.
The first major authority who dealt with this question is brought down by Rav Yosef Karo in his Kesef Mishna.[12] He quotes one of the late rishonim, Rav Meir Hacohen[13] who brings in the name of the Yerushalmi -that one is obligated to put one’s self in danger in order to save another. The specific quotation of the Yerushalmi is not cited but most Achronim[14] point to the following Yerushalmi as the source being referred to.
| Talmud Yerushalmi –Masechet Trumot 8/4
R’ Ami was taken capture in the town of Sifsiya. Rav Yochanan said – they should prepare the shawls for his burial. Rav Shimon Ben Lakish said- either I will kill or be killed. He went and convinced the kidnappers to let R’ Ami go. |
תלמוד ירושלמי (וילנא) מסכת תרומות פרק ח הלכה ד
רבי אימי איתצד בסיפסיפה אמר ר’ יונתן יכרך המת בסדינו אמר ר’ שמעון בן לקיש עד דאנא קטיל אנא מתקטיל אנא איזיל ומשיזיב ליה בחיילא אזל ופייסון ויהבוניה ליה |
The conclusion of the Yerushalmi (at least according to the Hagahot Maimoniot and Kesef Mishna) is that one would have to put oneself in danger in order to save another[15]. (as Reish Lakish did and the halacha usually follows a “maase rav”.Also it seems the Rav Yochanan wasn’t arguing with Reish Lakish;rather he had given up hope as he didn’t think it was possible to save him)
Does the Bavli argue with the Yerushalmi?
However the Sm”a[16] points out that Rav Yosef Karo in his Shulchan Aruch omitted this Yersushalmi. Nor does the Rema codify it anywhere. He suggests that since “the Rif, Rambam, Rosh and Tur all ignored this source, the Shulchan Aruch also did not bring it down.” The Pitchei Teshuva[17] explains that the reason these Poskim did not mention the Yerushalmi is because the Talmud Bavli disputes this.
Proofs that there is a dispute between the Bavli and the Yerushalmi
| Bava Metzia 62b
As it is brought down in a Braita: “Two people who were travelling in the desert and one of them had a flask of water. If both would drink it – they will both die. If one of them drinks, he will reach the town. Ben Petura explained –rather both of them should drink and not let the one see the death of the other, until R’ Akiva came and expounded “you shall live with your brother- your life precedes that of your friend” |
תלמוד בבלי מסכת בבא מציעא דף סב עמוד א
לכדתניא: שנים שהיו מהלכין בדרך, וביד אחד מהן קיתון של מים, אם שותין שניהם – מתים, ואם שותה אחד מהן – מגיע לישוב. דרש בן פטורא: מוטב שישתו שניהם וימותו, ואל יראה אחד מהם במיתתו של חבירו. עד שבא רבי עקיבא ולימד: וחי אחיך עמך – חייך קודמים לחיי חבירך |
According to Rav Naftali Tzvi Yehuda Berlin (Netziv)[18] the argument between Ben Petura and R’ Akiva is as follows: Ben Petura holds that if both of them drink they will live a day or two (chaye shaa) and there is a possibility that someone else will find them and save them. Accordingly one is obligated to share the water and thereby save ones friend for the immediate future (chayei shaa) even though this might endanger oneself to live for an extended amount of time (chayei olam).
However R’ Akiva understands that –even in such circumstances – the certainty of saving one’s own life comes first. Based on this explanation, one could posit that the opinion of the Yerushalmi and that of Ben Petura are one and the same, which is rejected by R’ Akiva. It is clear then according to this explanation[19] that the Bavli (halacha follows R’ Akiva) is arguing with the Yerushalmi[20]. A similar understanding is also brought down by the Chazon Ish[21].
The difference between “Vchai bahem” and “vchai achicha imach”
One could ask why did R’ Akiva need to introduce a new drasha, and not base his ruling on the explicit drasha of “vechai bahem”?Rav Isser Zalman Meltzer[22] explains the difference in that the derasha of “Vechai Bahem” relates only to when the danger is already present, whereas in the case of R’ Akiva the danger would only be in the future. R’ Akiva was mechadesh that nevertheless one still puts one’s own life first based on the pasuk “Imach – chayecha kodmin” even when the danger will only come into effect in the future. Accordingly, even when the danger is not immediate, one would still not be obligated to enter such a situation to save another.
Another proof that the Bavli argues with the position of the Yerushalmi can be brought from the gemara in Nidda. The gemara states:
| Talmud Bavli Masechet Nidda 61a
Certain Galileans were rumored to have murdered someone. They came to R’ Tarfon and asked him to hide them from the authorities. He replied –“If I don’t hide you – you will be discovered; but on the other hand how can I hide you – for the Sages have said “even though one shouldn’t believe Lashon Hara; nevertheless one should be cautious” . Go hide your selves. |
תלמוד בבלי מסכת נדה דף סא עמוד א
הנהו בני גלילא דנפק עלייהו קלא דקטול נפשא, אתו לקמיה דרבי טרפון, אמרו ליה: לטמרינן מר! אמר להו: היכי נעביד? אי לא אטמרינכו – חזו יתייכו, אטמרינכו – הא אמור רבנן האי לישנא בישא, אף על גב דלקבולי לא מבעי – מיחש ליה מבעי, זילו אתון טמרו נפשייכו. |
Rashi[23] in explaining the reason behind R’ Tarfons decision not to hide them writes as follows: “perhaps it is true that you are murderers in which case it would be prohibited to hide you”. The Rosh[24] is astounded by Rashi’s explanation arguing that just because there is a rumor that they are in fact murderers, doesn’t justify not saving them. Rather he brings the explanation of Rav Achai Gaon[25] quoted by Tosfot, that R’ Tarfon was worried that the rumor was true in which case the King would kill him if he was found harboring the murderers.
Based on the explanation of Rav Achai Gaon- Rav Eliyahu B”R Shmuel[26] of Lublin opined that this gemara proves that one isn’t obligated to put oneself in danger in order to save another[27]. He postulates further that the Yerushalmi itself only permitted one to put oneself in danger but didn’t actually obligate one to do so[28].
Achronim who paskened against the Yerushalmi
The opinion of Rav Yosef Karo.
As mentioned earlier, Rav Yosef Karo quotes the opinion of the Yerushalmi in his sefer Kesef Mishna. He goes further to try and explain the rationale behind the Yerushalmi as follows: “it seems that the reason is that for the victim his state is definite (that he will die without help) whereas the state of the helper is only a doubt”. He also quotes the Yerushalmi in his sefer on the Tur – the Beit Yosef. In both cases he doesn’t bring any opinion that argues. However when he wrote the codification of Jewish Law in his Shulchan Aruch, he omitted this halacha completely. As mentioned earlier, the S”ma and Pitchei Teshuva understood that ultimately he rejected the Yerushalmi as being deferred in halacha. Rav Nachum Rabinovitz[29] argues that the Shulchan Aruch did in fact bring this halacha down as did the Rambam and others. (We will analyze that source further when dealing with times of war)
The opinion of Rav David Ibn Zimra (Radbaz)
The first and major Responsa that dealt with our question was written on the background of a tragic event that required a halachic ruling. The Sheila posed to the Radbaz[30] was as follows: “A certain king offered to save the life of one jew if his friend would agree to have his ear cut off”. The Radbaz paskened that the friend did not need to have his ear cut off in order to save his friend, even though it was doubtful whether the loss of an ear could cause a loss of life[31].
His approach is novel and based on sevara; namely that “The ways of Torah are darchei noam and would not obligate us to do such a difficult and painful thing”. Nevertheless he does say that someone who does such a thing would be considered a “chasid”. However, in the event that it would clearly endanger his life, the Radbaz paskened that it would be forbidden. The opinion of the Radbaz is somewhat ambiguous as in a different responsa[32] he seems to contradict himself. There he states that not all dangers should be viewed the same. In the event that there is a good chance that one wont die, one is obligated to endanger oneself to save another and anyone who fails to do so violates the transgression of “Lo Taamod al dam Reeicha”.Rav Yitzchak Zilberstein[33] explains the apparent contradiction and summarizes the Radbaz opinion as follows.
If one would be prepared to put oneself in danger to procure a business deal or for any other personal interest, one would also be obligated to do so in order to save another’s life. However if someone would not be prepared to put oneself in such a danger no matter how lucrative the deal; one would not have to enter such a situation to save another either. Most people would not opt to sever a limb no matter how lucrative the deal[34] and therefore, one wouldn’t be obligated to do so even if the danger is minimal[35].h
Rav Moshe Feinstein
Rav Moshe Feinstein[36] accepts the opinion of the Radbaz that one doesn’t have to endanger oneself in order to save another. However he did not have access to the actual responsa and therefore formulated his own reasoning for the Radbaz. Rav Feinstein postulates that the prohibition of “Lo Taamod Al dam rei-echa –standing idle on ones brothers blood” is similar to all negative commandments in the Torah. Since regarding all other negative prohibitions, one does not have to forego a limb in order not to transgress them; similarly one wouldn’t have to forego a limb or put oneself in danger[37] in order not to transgress “Lo taamod al dam Rei-echa[38]“[39].
Achronim who hold that the Bavli supports the Yerushalmi
Chovat Yair
The Chovat Yair[40] argues[41] that the argument between Ben Petura and R”Akiva actually supports the opinion of the Yerushalmi. R’ Akiva only said his opinion where if they both drank – they would certainly die. Only in such case, R’ Akiva paskened that “chayecha kodmin-your life comes first.” However if it was only a doubt whether one would die if he gave his friend to drink – in such a scenario one would have to share with one’s friend and thereby place himself in danger.(He does leave his interpretation as inconclusive stating that – it needs further investigation)
Halachic conclusion
The Mishna Berura[42] paskens that one shouldn’t put oneself in danger to save someone else. However he adds – that one shouldn’t be too exact on the matter. (i.e one should try and save people and not look for every possibility for there to be a danger). This is also accepted by the Tzitz Eliezer[43].It seems that the overwhelming majority of Poskim follow the opinion of the Radbaz, that one does not need to put oneself in danger in order to save another; and if the danger is of real significance – it would actually be forbidden. This conclusion might be different for doctors[44]
Are the parameters different in a time of war?
Endangering oneself for Am Yisrael
The gemara in Masechet Bava Batra[45] states that
Those who have died by the Kingship – no soul can stand in their chamber (in the world to come) |
הרוגי מלכות – אין כל בריה יכולה לעמוד במחיצתן. |
Rashi explains that this refers to Lulianus and Papus who admitted to killing the emperors daughter (even though they were innocent) in order to save the entire Jewish community from mass execution.
Rav Moshe Feinstein[46] in the same responsa mentioned earlier – explains that although it is usually forbidden to put oneself in danger to save another; here it was different as they were saving many people. Rav Zilberstein[47] similarly states in the name of the Chazon Ish that one is permitted to give up one’s own life to save “everyone”.
However this argument seems to be contradicted by an explicit Mishna. The mishna in Makkot states regarding the inadvertent killer who was sent to the city of refuge.
Makkot chapter 2 Mishna 7(the inadvertent murderer)”does not leave (the city of refuge),neither to give testimony for the sake of a mitzvah or for the sake of a monetary dispute; nor for a capital crime case, and even if all of Am Yisrael need him, even if he is the head of the army like Yoav Ben Tzruya – he does not leave. |
משנה מסכת מכות פרק ב משנה זאינו יוצא משם לעולם ואינו יוצא לא לעדות מצוה ולא לעדות ממון ולא לעדות נפשות ואפילו ישראל צריכין לו ואפילו שר צבא ישראל כיואב בן צרויה אינו יוצא משם |
The Ohr Sameach[48] proves from this mishna; that one is prohibited to put oneself in danger to save another – even for all of Am Yisrael. (He derives this from the extra line added by the Rambam “if he leaves his blood is on his head,(as the Goel Hadam could rightfully kill him)”. From the Ohr Sameach it seems that there is no distinction between times of war or peace, or whether one is saving one person or all of Am Yisrael.
The Tiferet Yisrael[49] rejects such a proof outright. He states categorically that the reason cannot be because it is prohibited to place oneself in danger in order to save Am Yisrael. (The Rambam was not citing the reason why he doesn’t leave; rather the outcome if he would do so).The Tiferet Yisrael doesn’t explain why the Mishna prohibits such a person from going to war. We can suggest 2 explanations:
- Rav Yaakov Ariel[50] explains that in the case of the inadvertent killer- he remains in the Ir Miklat not just because of the positive commandment of going into exile, but just as much – as serving the sentence passed down by the Beit Din. Such a sentence cannot be undone even for the sake of the war effort, as it would destroy the entire judicial system. Perhaps this is a greater danger to society than the benefit of a general joining the war effort.
- The Aruch Hashulchan[51] gives a similar answer to the Ohr Sameach. However he then gives a different interpretation of the Mishna, rendering “he does not leave” as- “He doesn’t have to go out”; meaning that if he would like to – it would be permitted. According to the second answer – placing oneself in danger to save Am Yisrael would be permitted although not obligatory -“bgeder rshut“.
We saw earlier that Rav Feinstein distinguishes between whether one is placing oneself in danger for an individual (which would be forbidden) or for the community. (Which would be permitted and a great mitzvah).It seems that Rav Feinstein did not distinguish between times of war or peace and therefore we will assume that in his opinion the same principles would apply during war[52].
Rav Avraham Yitzchak Hacohen Kook
Rav Kook[53] wrote three long responsa dealing with our topic, with many novel ideas that we will try and summarise.
- Firstly he doesn’t accept the distinction of “quantity of people being saved” mentioned by other Achronim. Just as it would be prohibited for 5 people to kill someone in order to save themselves, so too would the prohibition of endangering oneself for the community also stand. Rav Kook explains that one cannot prove from the case of Lulianus and Papus for they were included in the decree and therefore their death was certain anyway[54]. One also can’t prove from the fact that Ester put herself in danger by entering the chamber of Achshveirosh, for Rashi[55] on the Megilla explains that Mordechai challenged her saying that she too might be part of the decree.
- He does agree that if the entire nation of Israel is in danger such as the case of Ester (or an entire tribe or the entire Jewish population in Israel[56]); then according to sevara one would be permitted and it would be a mitzvah to save the nation. This would be based on the principle of “Horaat shaa” and “Migdar Milta”[57].
- On the other hand Rav Kook conjectures that the psak of the Radbaz – that if one would definitely endanger one’s life, it would be forbidden – is also inconclusive. The reason that one cannot kill someone to save one’s own life, is based on the sevara of “is your blood redder than his”. Here since someone will die, Rav Kook posits that one could voluntarily give up one’s own life in order to save another. (However he leaves this open ended).
- Rav Kook stresses that the reasoning he gave of Horaat Shaa is when the entire nation is in danger although it isn’t a time of war. War by definition has different rules. Since in war the principle of “vchai bahem” does not apply, therefore the law of “chayecha kodmin” also doesn’t apply.
- Rav Kook adds that although going out to war is generally a function of the king (at least Milchemet Rshut), nevertheless when there is no king his authority is handed to the communal body in charge. This idea is brought down by the Netziv[58] as well.
Tzitz Eliezer
Rav Eliezer Waldenberg (Tzitz Eliezer) accepts the distinction of Rav Kook and writes as follows:
Responsa Tzitz Eliezer 12/ 57“It is logical that one cannot learn from what is permitted during war time, to what should be permitted during peace. Similarly one cannot learn from what is prohibited during peace, to what should be done during war.since the rule of “and you shall live by them” doesn’t apply during war, similarly the principle of “your life precedes others” doesn’t apply during war. Rather each one is obligated to sacrifice his own life in order to save the other… |
שו”ת ציץ אליעזר חלק יב סימן נז“מסתבר לומר, דכשם שאי אפשר ללמוד מהמותר במלחמה למקום אחר, כך אי אפשר גם ללמוד מהאסור במקום אחר לגבי מלחמה, וכשם שהכלל של וחי בהם לא חל במלחמה, כך הכלל של חייך קודמים ג”כ לא חל במלחמה אלא כאיש אחד מחויבים למסור כאו”א את נפשו בעד הצלת חייו של משנהו, |
The Tzitz Eliezer claims that this distinction is also supported by the Chatam Sofer[59] and other Achronim[60]
Proof that war is different
The gemara in Eiruvin discusses when one is permitted to violate Shabbat in order to help certain towns under attack by an enemy.The gemara states as follows:
תלמוד בבלי מסכת עירובין דף מה עמוד אאמר רב יהודה אמר רב: נכרים שצרו על עיירות ישראל – אין יוצאין עליהם בכלי זיינן, ואין מחללין עליהן את השבת. תניא נמי הכי: נכרים שצרו וכו’. במה דברים אמורים – כשבאו על עסקי ממון. אבל באו על עסקי נפשות – יוצאין עליהן בכלי זיינן, ומחללין עליהן את השבת. ובעיר הסמוכה לספר, אפילו לא באו על עסקי נפשות אלא על עסקי תבן וקש – יוצאין עליהן בכלי זיינן, ומחללין עליהן את השבת. |
Talmud Bavli Masechet Eiruvin 45aRav Yehuda said in the name of Rav: If non jews besieged a city, we(jews from another city) are not permitted to take out weapons (out of the techum), nor to violate Shabbos(to help save them)….when does this law apply? When they are besieging the city to extort money; but if they are intending to kill people, we may take out weapons and violate the Shabbat….. |
This Halacha is paskened by the Rambam and the Shulchan Aruch. But surely going out to defend a city under attack by the Goyim is placing oneself in danger as the Minchat Chinuch[61] states- we don’t rely on miracles and the nature of war is that people die on both sides ? From here Rav Zilberstein[62] argues that one can see clearly that in times of war – the parameters are different and it is a mitzvah to fight even though one is endangering oneself to save others.
Another proof can be brought from the Rambam[63] who states that a “Milchemet mitzvah”(where everyone[64] is obligated to go out and fight) includes –saving jews from an enemy. Here too, why would it be obligatory for one jew who isn’t in danger (perhaps in a different country) to be obligated to risk his lifefor another?Here too one sees that the laws of war are different, and “vechai bahem” or “chayecha kodmin” don’t apply.
Why is war different?
The needs of the individual verses the needs of the nation
Rav Shaul Yisraeli[65] explains that in a time of war the reason that the commandment of “ and you shall live by them” as well as “ your life precedes that of others” do not apply; is due to the fact that we do not think of the individual but of the needs of the nation.I believe that this idea is found explicitly in the Rambam where he states that “[66]anyone who has doubts and weakend thoughts during the war transgresses a negative commnandmet;….furthermore all of the lives of the Jewish people are dependent on him,..and if he doesn’t fight with all his heart and soul, it is as if he spilt the blood of everyone”. From here the Rambam clearly defines that the thought of the soldier must be focused on the nation only and he must feel the full weight and responsibility of that task, leaving no room for his personal welfare. Rav Yaakov Ariel[67] explains this idea further by giving an analogy. It is obvious that in order to save someone’s life, the doctors would be permitted to amputate a limb if there is no other way to save the person. Just as in that scenario we look at the entire person and not the specific limb, so too in times of war we look at the benefit to the entire nation and not the individual.
The morale of the soldiers
Rav Simcha Hacohen Kook[68] adds that there is another aspect that would require a soldier to endanger himself for other soldiers unlike in times of peace. This is based on the fact that the morale of the soldiers is a critical factor to succeed to be victorious.So much so that the Rambam paskenes[69] that the big policemen are stationed behind the troops and any soldier trying to flee the battlefield may have his legs cut off”for flight is the beginning of defeat”.We see from here and many other halachot[70] how important the morale of the soldiers are. It is well documented that one of the things that gives soldiers confidence to fight with everything they have – is the knowledge that “no soldier will be abandoned in the field”.Knowing that other soldiers will put themselves at risk to save a comrade is what gives them strength in the first palce.
Kidush and Chilul Hashem
Another reason brought by Rav Yisraeli and Rav Ariel, is the concept of Kidush Hashem. The laws of “and you shall live by them” are deffered in certain cases of and Kidush Hashem[71]. When the nations of the world attack the Jewish people this is an attack on G-d himself and one has to give up ones life “al kidush Hashem[72]”.
Conclusion
Although during peace time, eventhough the Yerushalmi states that one does have to place oneself in danger to save another, the overwhelming majority of Poskim pasken that the Bavli argues and therefore the Halacha is that one doesn’t have to endager oneself.
There is an argument amongst the poskim, as to when it is permitted or even seen as a great mitzvah; and when it is considered forbidden.Reagrding Halacha lemaase – many poskim have stated that there are no clear cut categories and each case must be evaluated.
However during a time of war, the overwhelming majority of Poskim understand that it is a mitzvah and obligation for soldiers to save one another even if it entails endangering one’s own life.Many reasons have been brought forward for this.I believe that the most convincing reason is that during a time of war – we focus on the needs of the nation and not the needs of the individual.
We have seen this self sacrifice and dedication displayed by our brothers and sons in the IDF, who fought with a deep sense of selflessness for their fellow soldiers and all of Am Yisrael.Where they stand in heaven – no “soul can enter that holy chamber”.May this torah study be lilui lnishmatam and lerefua shleima for all the injured.
[1] Rambam Hil. Yesodei Hatorah Chp 5/1
[2] Vayikra 18/5
[3] Yoma 84b
[4] Yoma 85b
[5] Vayikra 19/17
[6] Sanhedrin 73
[7] Mishna Masechet Sanhedrin Chp4 Mishna 5
[8] The girsa in Avot Drabi Natan –is “anyone who saves a life” leaving out the word “miyisrael”.Rambam in Hilchot Sanhedrin 12/3 also leaves out the word “miyisrael”.See Meishiv Milchama chp1 by Rav Shlomo Goren, who deals extensively with the issue.
[9] Sanhedrin 74a
[10] Tosfot Sanhedrin 74b D.H Ester. See there for a distinction between actively killing somone and the din of “grama”.Also see the Chidushei Rav Chaim Halevi hilchot Yesodei Hatorah who gives another definition based on the Rambam.
[11] Regarding why there is a need for R’Akiva’s derasha if we already have the verse of “vchai bahem”, see further on the explanation given by the Even Haezel.
[12] Hilchot Rotzeach 1/14
[13] Rav Meir Hacohen – commonly known by his commentary on the Rambam the Hagahot Maimoniot or the Ramach – was one of the leading students of the Maharam of Rotenberg.
[14] Yad Eliyahu 43, Ohr Sameiach and more.
[15] See alternate understandings of the Yerushalmi by the Ohr Sameiach (Hil Rotzeach 7/8) and the Responsa Yad Eliyahu 43.
[16] Shulchan Aruch Choshen Mishpat 426/2
[17] Ibid
[18] Haemek Sheila 127/4
[19] One could argue that the pshat of the Sugya is that they will both definitely die if they drink. The sevara of Ben Petura would be that by drinking it is as if one is actively killing ones friend and therefore one would have to give up one’s life before killing another
[20] Eiruvin 46b – halacha follows R’ Akiva over his friend. However the Rif and Rambam never brought down the argument at all. Furthermore, the Rambam in Hil. Yesodei Hatorah 5/2 seems to contradict the opinion of R’Akiva. (See Minchat Chinuch mitzvah 296 and Chidushei Rav Chaim Halevi – Yesodei Hatorah.)
[21] Chazon Ish likutim on Bava Metzia 20, and Hearot on Chidushei Rav Chaim Halevi.
[22] Even Haezel –Hilchot Yesodei Hatorah 5/1
[23] Rashi Nidda 61a D.H Meichash leih Mibaei
[24] Rosh Nidda 9/5
[25] Sheiltot Parshat Vayeishev
[26] Responsa Yad Eliyahu chapter 43 (Posek and Rabbinic leader in the 17th Century)
[27] One could argue that this proof is only according to Tosfot and the Rosh. However, according to Rashi, the only reason to justify not hiding them would be if it was in fact forbidden to do so. Accordingly it could be argued that Rashi actually holds like the Yerushalmi.(otherwise why was he forced to explain the gemara in such a way and not go with the easier explanation of Rav Achai Gaon). See the Aruch L’ner who explains Rashi differently in which there really isn’t any argument between Rashi and the Sheiltot. However the argument of the Aruch Lner is not definite and therefore it may be that Rashi actually paskens like the Yerushalmi. I was unable to find a clear proof in Rashi elsewhere to argue convincingly that this is his opinion. Also the fact that no earlier commentator suggested it makes any such approach novel and unconvincing.
[28] This also seems to be the opinion of the Ohr Sameach (Hilchot Rotzeach)
[29] Responsa Melumdei Milchama Chp 1
[30] Responsa Radbaz chelek 3/ 729
[31] However see Responsa “Melumdei Milchama” by Harav Nachum Rabinowitz who argues that the Bavli actually agrees with the Yerushalmi and that the Rif , Rambam and Shulchan Aruch paskened this din regarding helping a city under siege.
[32] Radbaz – Leshonot HaRamabm 1582
[33] Assia –halachic medical journal 41 (11/1)
[34] Bava Kama 85a –Rashi D.H lo shakil
[35] Rav Zilberstein clarifies that the definition of “danger” will be different in terms of Hilchot Shabbat (where even a slight danger would permit violating Shabbat), and in our case
[36] Igrot Moshe Y.D 2 siman 144
[37] One could argue and say that the entire nature of the issur takes palce in an environment where there usually is a danger and therefore the obligation is in effect despite the nature as opposed to other negqative commandments.(Rav Yoel Kenigsberg).See next footnote for an opposite approach.
[38] This logic could be argued as it comes out that according to the igrot Moshe “Lo taamod” is nidche because of the danger. One could argue though that in such a situation, there is no transgression to begin with. I believe that this is in essence the argument of the Radbaz himself.
[39] Rav Feinstein does distinguish between “Lo taamod” and other negative prohibitions, in that regarding other prohibitions; it would actually be forbidden to put oneself in danger in order not to violate the transgression. Here since at the end of the day one might be able to save another’s life, although one isn’t obligated to put oneself in danger, it would be permitted to do so. (If it is certain that one would likely die, this would also seem to be prohibited according to the Igrot Moshe)
[40] Rav Yair Chaim Bachrach – one of the leading Poskim of German Jewry in the 15th century
[41] Chovat Yair responsa 146
[42] Sh.A O.C 329/19
[43] Tzitz Eliezer Responsa chelek 8 chp15 10/13
[44] Shevet Halevi responsa section 8 chp 251; Tzitz Eliezer section 9 chap 17 kuntrus Refuah beshabbat perek 5
[45] Bava Batra 10b
[46] ibid
[47] Chashukei Chemed Sanhedrin 72b
[48] Ohr Sameach – Hilchot Rotzeach 7/8
[49] Tiferet Yisrael –Makkot Mishna 2/7 Boaz 2
[50] Responsa “B ‘ohala shel Torah” 4/29
[51] Aruch Hashulchan – Choshen Mishpat 425/ 57
[52] This is inconclusive as the case that he was dealing with was whether to permit dangerous transplants etc. It could be that if he addressed the topic of war directly he would make a distinction, as did Rav Kook, the Tzitz Eliezer and others.
[53] Mishpat Kohen Responsa 123-125
[54] This is also the reading of the gemara according to the Yad Eliyahu, and explicit in the explanation of Rabeinu Chananel
[55] Megilat Ester 4/13
[56] See beginning of Horayot
[57] Although Horaat shaa is a function of the Navi or the Sanhedrin, when dealing with such an obvious necessity such as saving Am Yisrael –“shlichutahu kaavdinan”.
[58] Sheilta 142 “the leader of the war effort is similar to a king in his authority”
[59] Responsa Chatam Sofer Ch.M 44
[60] See Responsa Tzitz Eliezer 12/57 where he brings other achronim such as the Shem Arye and Chadei David who support this distinction. See there for the proofs he brings from various gemarot to base this distinction.
[61] Minchat chinuch mitzva 425 – his conclusion is that in times of war – placing oneself in danger is not a factor
[62] Rav Zilberstein is the son in law of the famed Posek Rav Shalom Elyashiv Tz”l
[63] Hilchot Melachim 5/1
[64] Hilchot Melachim 7/4
[65] Shvilin 29-30 kislev 5737
[66] ibid
[68] Quoted in “Beohala shel Torah”
[69] ibid
[70] Hilchot melachim 7/15; 7/3
[71] Terumat Hadeshen 199
[72] See response of Rav Yaakov Ariel Beohala shel Torah volume 4 pg 167 for an extensive list and clarification on this topic.
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