The Problem with Halakhic Ethics Moshe 15/9 Shalom is 19% at the lladassah Hospital in Jerusalem. Either Israel has been transformed into a complete theocracy, or the religious political parties have become strong enough to get a series of laws passed. including a law stating that no one may be criminally prosecuted for observing halakha (Jewish religious law). Sounds innocent enough, especially to assimilated Jews who are returning to their roors. In fact, it makes them damn proud (in a romantic sort of way) that, after two thousand years, a Jew can never be hurt again for ob- serving ancestral rites and customs. So most Jews have supported the legislation. One of the most brilliant surgeons on the ward is a very presentable Jew, quite religious, with a long but well-groomed beard. Quite by accident, it is discovered by someone in the mortality statistics department that over the past ten years this surgeon has operated on three thousand patients. Seventy percent of the Jews have survived. Seventy percent of the non-Jews [most of whom are Christians) have not survived. Futhermore, of the Jews who have died, 90 percent were secular. The doctor is arrested on suspicion of mass murder, and the case is brought to trial. His defense attorney has a simple argument. He cites the authoritative sixteenth- century compendium of Jewish law, the Witt/lees}: Arztk/? (Yoreh Deah 138), which states quite clearly that it is forbidden to save the life of an idolater or of aJew who brazenly reiecrs the kosher dietary laws or any orher religious law. This prohibition applies also to a Jew who is an who does not believe that the dead will be resurrected someday or that a descendant of David will be the Messiah. The law is directed especially at doctors, who should withhold treatment from such people. In fact, the Ame/3 suggests ways to get rid of such people, including spreading rumors about them that will eventually lead to their being killed, or removing the ladder from a place to Moshe it}: Shalom is a pseudmzyirz lasing used by rm Orthodox rabbi trim was ordained by li'tipitw University. in twp/ainng his use ofa ptezrtiomtm, Rafa/7i Shalom rays. "l 'm not prepared to sign this piece became there has been a decrease in wit/yin {be yttrium-Pam of the Orthodox tear/(i toward discussing de?cit]! issuer tier/J a: (/3650. am] won/(i be 10 remain unscathed by people's auger and adverse reactions were 1? to give my name." which they have fallen and have no other means of escape {in this way, the man or woman simply starves to death). The attorney cites supporting evidence that the rights of an idolater in lsrael are nonexistent and adds that Maimonides asserted (in his Laws of idolatry) that, when Jews have a secure military hold on lsrael, the above-mentioned laws do nor go far enough. ldolaters must nor be permitted to be in the land at all. lt is not clear from the context whether, if they refuse to leave, idolaters are to he "transferred" {to quote a popular euphemism for expulsion) by force or simply killed. in light of these halakhic precedents from the greatest of the codifications of Jewish law, the case against the surgeon is rather weak. The prosecuting attorney makes a feeble attempt to raise the issue of ems-1mm aiziah? the law, cited by the Shale/amt Arnie/.1 itself. that if such action will cause hatred of the Jew then it is not to he done. But the defense attorney neatly rejects this charge because aim/3 expresses an exilic concern with Jewish safety in the midst of an idolatrous host society and therefore is clearly not halakhically relevant in a militarily strong lsraeli state. The prosecuting attorney also attempts to echo the sentiments ofJewish religious liberals (there are still a few) who state that compassion is an essential component of what it means to be Jewish. In fact, he cites the same Maimonides, who says that one of the essential charac- teristics of a Jew is his compassion. Of course, all this argument does is impugn the characrer of the defendant; it cannot possibly make him criminally liable. But the defense attorney (lisp?Lites even this point. He puts his client on the stand, and the doctor tells the judges that he is a man of great cempassion. He works with widows and orphans, and he offers personal assistance to the poor. Of course, all of those he helps are religiously observant people, since he is obligated to hate those who are not, because they fall under the category of the wicked. Furthermore, he gladly confesses his actions in the hospital and feels that he was simply ful?lling his halakhic obligations. Finally, he claims that even though idolaters are wicked, he had compassion for them and did not allow them to bleed to death slowly. Rather. at the risk of being discovered, he made sure to eliminate key steps in the operations so that they would die quickly. 35 The case is dismissed. The non-Jews and secularists of Israeli society scramble to establish their own hospitals, and, in the back of their minds, they make plans to leave. And so the horror begins. . .. 5 this scenario impossible? I do not know, but I do know that we who are committed to halakha have not even begun to face some very tough questions about what it means to be religious and ethical in the twentieth century. And if we are not careful, the rule of the mob or the forces of history?not our great tradition of ethics?will determine our spiritual con- sciences. The fundamental question for a contemporary halakhist must be how s/he responds to laws that, by standards of personal conscience. are morally repugnant. This is not the place to prove it, but it seems clear to me (from Studying Jewish texts for the past ?fteen years) that now is not the ?rst time in Jewish history that halakhists have had to Struggle with this issue. It seems that, at some inneture, the laws about killing a wayward son; wiping out whole cities of idolatrous Jews; forcing a woman suspected of adultery to drink a potion; allowing capital punishment, polygamy, and slavery; and prohibiting women from going out in public all became problematic to many rabbis. The major problem, however, is that rarely, if ever, did halakhists categorically state that a law was wrong or morally problematic. Instead, the rabbis effectively eliminated the Deuteronomic extermination laws, for example, by claiming that they referred to the seven nations of ancient Canaan and that those nations no longer exist. But this method of modifying the law is extremely dangerous, since it eliminates honesr discus- sion of the moral problem of the mass murder of men, women, and children. The law is conveniently consigned to the dustbin of halakhic history and is not attacked from the universalist perspective of fairness, tolerance, and compassion, or from the broader Jewish perspective embodied by the many other prophetic and rabbinic texts that display extraordinary moral sensitivity and deep respect for all human life, which is created in the image of God. To take account of this broader Jewish perspective is to confront the agonizing contradictions that I, a halakhic Jew, struggle with in the Shale/Jan Ai'zii?en. Speci?cally, the Shale/Jazz Await/J, in addition to the aforementioned problematic laws, also contains an extraordinary discus- sion about protecting one's life in situations of danger. That discussion is intimately related to a whole series of laws, codi?ed by the Sim/Harm Amie/2, about not being permitted to put someone else in danger. In fact, one critical law states that one must not sell weapons to those who will use them to kill, because one ends up being an accomplice to the crime?murder being one of the .36 VOL. 4, No. 2 seven prohibitions that all people, regardless of religion, are halakhically bound to observe. (This law, incidentally, makes a large chunk of the taxes collected by every modern state for the purposes of weapons production and sales halakhically questionable?yet anorher halakha conveniently ignored.) Technically, the law against selling these weapons comes under the halakhic rubric of not putting a stumbling block before a blind person, which is a powerful example of a compassionate, moral law of ancient Judaism. The halite/air body of ans will be wit/9 increasing frequency as a bartering win against Pniestininns and anyone ?156, Jervis/9 0r gentile, gets in the way ofnn (imam! nitrnnatzonniz'sin. - How does one struggle with such deep ethical contra- dictions in the halakhic system? I think the only answer is to do it honestly, and halakhists make a tragic mistake when they continue to gloss over these problems by apologetically claiming that this or that law is not rele- vant in such and such a circumstance of contemporary life. Another favorite method used by halakhists is to quote the small portion of the laws of idolatry that states that one must support the idolatrous poor as well as the Jewish poor for the sake of peace, while completely ignoring the surrounding laws which are neither humani- tarian nor peaceful. We cannot avoid these tough problems anymore; the stakes are now too high for apologetics because apolo- getics leaves Open a moral Pandora?s box. Imagine that instead of the United States' having said unequivocally that nonwhites and women have the right to vote, it had said that the blacks who came from Africa were not really human and the women of yesteryear had minds like children, but that today?s blacks and women are no longer that way, so they have voting rights. Doesn?t this claim leave the door open for racist senators in the year 2000 to destroy civil rights in this country? If we as halakhists do not struggle with laws that are morally problematic, if we do not honestly confront the paradoxes of the halakhic system, we are bound for disaster in the new age of halakhic power. We must unequivocally acknowledge, despite the miserable moral track record of Western civilization, that there are uni~ versal moral principles (many derived from our own prophets) that dozens of great minds have agreed upon and to which we owe allegiance. \We must acknowledge that great moral ideas come from great moral minds .n iu?b-M Albls