Shabbat Parashat Ki Tisa| 5764
From the works of Hagaon Harav Shaul Yisraeli zt”l - Compromises in Religious Legislation - Part I - Condensed from Amud Hay’mini, siman 11
[At times, in order to solve a communal, religious problem, one is demanded to accept an unacceptable situation. An example is the question whether to support legislation to ban public transportation on Shabbat throughout Israel, excluding Haifa. May we improve the situation in the country as a whole, at the expense of the people (including the religious) of that city? The political assumption was that if compromise was not agreed upon, then matters would only get worse.]
The mishna in Terumot (7:12) writes: “If idol worshippers say to a group of women: ‘Hand over one of you so that we will defile her, or else we will defile all of you,’ it is better that all be defiled, and they should not give over one soul from Israel.” What is the basis of the prohibition to hand over someone if the same outcome is expected for her whether she is given or taken? It is difficult to say that it is because we are not allowed to aid in the violation of aveirah, even when it will be done without our involvement. After all, the defiled woman is not active in any sin, and we are not obligated to protect idol worshippers from sin? Why don’t we take the overall picture into account, as we do when we tell one to violate a single Shabbat to enable another to keep many Shabbatot?
Rav Kook (Mishpat Kohen, pg. 306- ) brings two explanations. First of all, since the Torah connects between matters of life and death and matters of sexual purity, we imploy the rule that one does not make calculations of relative gain and loss. Rather, we cannot give in on one life or one woman’s purity even when the price of refusal is greater than that of capitulation. Another possibility is that if the women are defiled by force, then no Jew was active in the aveirah, as opposed to a case of handing one over, which includes our active involvement. Each of these answers has problems [beyond our scope], but we can eliminate the question if we notice that the prohibition is limited, not sweeping.
The Rash on the mishna (ibid.) says that it is evident from the Yerushalmi that if the idol worshippers specify which woman they demand to be handed over, she is given over instead of waiting for them to take all of the women. The apparent explanation is as follows. If it is a question of a tragedy befalling one person or the whole group, we prefer to limit it to one person. That is the case when one woman is spelled out, and, therefore, she is handed over. But when no one is spelled out, the decision needs to be made whom to choose. At that point, with a question of one versus another, we have no right to decide. Therefore, no one is given over, despite the disadvantages this refusal to decide brings on.
We must point out though that the Rash’s citation of the Yerushalmi is problematic. Firstly, the Yerushalmi does not deal with surrendering a woman to be defiled, but with handing over a person to be killed. Secondly, the halacha cited is only one opinion. Reish Lakish argues and says that the specified person can be given over only if he is guilty of the death penalty. Indeed, the Rambam (Yesodei Hatorah 5:5) accepts Reish Lakish’s opinion that one does not give over an innocent person even if the idol worshippers single him or her out.
[We continue next week.]
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