Daf Ditty Eruvin 44- Outer Limits of Halachic Boundaries

Daf Ditty Eruvin 44: the outer limits of Halachic boundaries

MISHNA: With regard to one who was permitted to leave his Shabbat limit, i.e., he went out to testify that he had seen the new moon or for some life-saving purpose, and they said to him along the way: The action has already been performed, and there is no need for you to travel for that purpose, he has two thousand cubits in each direction from the location where he was standing when this was told to him.

1 If he was within his original limit, it is considered as if he had not left his limit, and he may return to his original location. The Sages formulated a principle: All who go out to battle and save lives may return to their original locations on Shabbat.

RASHI

Abaye said to Rabba: Do you not hold that the subsuming of Shabbat limits is something significant? And what if he established residence in a cave that has entrances at its two ends, which on the inside of the cave is four thousand cubits across, but atop its roof it is less than four thousand cubits across?

Is it not the case that he may walk the entire length of the roof and two thousand cubits outside it in either direction? The entire interior of the cave is considered as if it were four cubits, and he is permitted to walk another two thousand cubits in each direction from each of its entrances.

2 permitted to walk the entire length of the roof, given that when two limits are subsumed within one another, one may pass from one to the other.

Consequently, he is permitted to walk along the roof, two thousand cubits from the eastern entrance in the direction of the western entrance and vice versa. However, since the distance across the roof is less than four thousand cubits, these two limits are subsumed within one another, and he is permitted to walk the entire length of the roof, given that when two limits are subsumed within one another, one may pass from one to the other.

Rav Avrohom Adler writes:1

The Mishna in Rosh Hashanah states that when the witnesses came to Beis Din on the Shabbos to testify about having seen the new moon, originally they were not permitted to leave, but Rabban Gamliel established a rule permitting them free access to the entire city of Yerushalayim, as well as travel within the 2000 perimeter around the city.

1 http://dafnotes.com/wp-content/uploads/2015/11/Eiruvin_44.pdf

4 Furthermore, this ruling was applied to others who travel outside of their techum boundary for a mitzvah, including a midwife who comes to deliver a baby, or someone who comes to save others from a fire, avalanche or flood.]

If a man who was permitted to do so went out beyond the techum (his Shabbos limit) and was then told (while he was on his way) that the deed (which he intended to do) had already been performed, he is entitled to move within two thousand amos in any direction. If he was within the (original) techum, he is regarded as if he had not gone out. All who go out to save people may return to their original places.

The Gemora asks: What does the Mishna mean when it stated that if he was within the (original) techum, he is regarded as if he had not gone out? [Isn’t this obvious; he didn’t go out of the techum!?]

Rabbah replied: It is this that was meant: If he was within the (original) techum, he is regarded as if he had not keft his house (and he still has 2000 amos from his house, and not from the place where he is presently located).

The Gemora asks: Isn’t this obvious as well (for so long as a man has not gone beyond his techum, he is, of course, entitled to his original rights of movement)? It might have been presumed that as he has uprooted himself from his original residence, he has thereby uprooted himself completely from it (and his techum will be based upon his location); therefore we were informed that if he was within the (original) techum, he is regarded as if he had not left his house.

Rav Shimi bar Chiya replied: The Mishna meant as follows: If the techum which was given to him by the Rabbis (after he had reached his permissible destination) overlapped with his original techum, he is regarded as if he had not left his original techum (and may return there and make complete use of it).

The Gemora notes the principle that they differ on: One master (Rav Shimi) is of the opinion that the overlapping of the techum is of significance, while the other master maintains that it is of no consequence. Abaye said to Rabbah: Are you not of the opinion that the overlapping of techum limits is of significance?

What if a man spent the Shabbos in a cave, whose interior was four thousand amos but that of its roof was less than four thousand amos?

[Two of the cave’s opposite walls were sloping upwards towards one another; this reduced the length of the roof, in which there were two entrances, one at the side of either wall.]

Would he not be able to move all along its roof and two thousand amos beyond it (in either direction, from either entrance)?

[If one entrance, for instance, was on the east side of the cave and the other on its west side, the former would enable the man to move a distance of two thousand amos from the east side of that

5 entrance and another two thousand amos from its west side, while the latter entrance would similarly enable him to move along equal distances from both its sides.

But since the western limit of the eastern entrance overlaps along the roof with the eastern limit of the western entrance, the man is permitted to move along a distance of more than four thousand amos, beginning in the east at a point two thousand amos from the eastern entrance and extended along the roof to a point in the west two thousand amos distant from the western entrance.

If the two techum limits, however, had not overlapped along the roof as would be the case where the roof of the cave, like its floor, was four thousand amos long, the man on leaving the eastern entrance would have been allowed to move to a limit of two thousand amos in either direction but no further, and a similar distance and no further if he left by the western entrance.

How then could Rabbah maintain that overlapping is of no consequence?

Chazal allowed certain people to exceed the 2000 amah limit of Techum Shabbos.2 According to Rashi here, this includes witnesses who are on their way to testify concerning the new moon, people going to save a person from bandits or from drowning, or a midwife who is going to assist a woman in labor.

In Sefer HaPardes, Rashi adds that it is also permissible to go beyond the techum in order to save a Sefer Torah.

R' Yosef Engel posits that if it is permissible to go beyond the techum in order to save a Sefer Torah, it is also permitted, once the person reaches his destination, to go 2000 amos in all directions from that place.

However, R' Shlomo Zalman Auerbach notes that the basis of this leniency is the Rabbis’ concern that if they do not allow the person some leeway, then the next time a similar situation arises, he will avoid it (see Mishnah Berurah 407:3).

2 Daf Digest

Hence, they could only permit this leniency in regard to their own decree. Hence, since most Rishonim are of the opinion that there is a Torah law prohibition to exceed 12 mil (2000 amos x 12; see Mishnah Berurah 404:7), the Rabbis cannot extend the techum beyond that limit.

Thus, if a person had to travel for one of the permitted reasons, and he traversed 11.5 mil to get to his destination, he can only walk the additional 1000 amos to the 12 mil limit, and no more (Nishmas Avraham, Orach Chaim507:1 — see there that in the end R' Shlomo Zalman is inclined to give even the person in this situation 2000 amos from his destination.)

Divrei Yechezkel (7:26) deals with this very question. He suggests that according to the Bavli, a person who violates the Torah prohibition of exceeding 12 mil is not violating a prohibition to leave a certain domain or area.

Rather, the prohibition is the travel itself. Hence, it stands to reason that the entire trip must be prohibited. Thus, if one started the trip under one of the permissible circumstances, the initial permitted segment does not combine with the subsequent prohibited segment.

In this respect, the person who walked 11.5 mil for a permitted purpose is like a person who ate half a kzayis of permitted fats and half a kzayis of forbidden fats. (Divrei Yechezkel (ad loc.) posits that Yerushalmi follows the other logic.)

7 Laura Shaw Frank writes:3

On today’s daf, the rabbis grapple with the issue of breaking Shabbat in a moment of necessity. We learn this from a Mishnah:

With regard to one who was permitted to leave his Shabbat limit, they said to him along the way: The action has already been performed, and there is no need for you to travel for that purpose, he has 2,000 cubits in each direction from the location where he was standing when this was told to him. If he was within his original limit, it is considered as if he had not left his limit, and he may return to his original location. The Sages formulated a principle: All who go out to battle and save lives may return to their original locations on Shabbat.

This Mishnah needs some unpacking. First of all, why was the person permitted to leave the Shabbat limit in the first place?

Rashi explains that the Mishnah is talking about someone who was heading out to do a critically important communal service, such as witnessing the new moon or saving someone’s life. It’s easy to understand why it would be permissible for a person to violate the laws of Shabbat to save a life. Jewish law privileges saving a life over almost everything, a principle known as pikuach nefesh. But why would witnessing the new moon excuse straying beyond one’s Shabbat limit?

To understand this, we must remember that the Jewish calendar is lunar. Each new month begins with the new cycle of the moon. While today we have a set calendar, in ancient times, the rabbis relied upon witnesses who saw the new moon to declare the official beginning of a month and determine when various Jewish holidays ought to be observed. Witnessing the new moon was therefore critical to enabling the community to remain united in its observance of the Torah. In that way, establishing the new month maintained communal life just as saving a person maintained human life.

Now, in our Mishnah, the Jew on a mission is stopped along the way because the deed they set out to do has already been done. The question is, can that person now go home? It’s one thing to suspend the laws of Shabbat to serve a critical need, but if the need no longer exists, why let the person break Shabbat? The Mishnah establishes that the 2,000 cubit distance one is allowed to travel on Shabbat resets when our do-gooder finds out that the mission is no longer necessary. So the person need not wait until after Shabbat to travel home, but can travel 2,000 cubits to get back.

What the rabbis are saying here is that fulfilling a critical communal service is so important that we do not want to make a person think twice about doing so. They don’t want people to refrain from heading out to perform such a service because they’re unsure if the need still exists, or because they might get stuck someplace far from home if it doesn’t. The rabbis did not want anything to get in the way of a person who seeks to serve the community in its hour of need. If you set out on a critical mission, the law will protect you even if you don’t get to fulfill it.

3 https://www.myjewishlearning.com/article/eruvin-44/

Chasam Sofer (Teshuvos 2, Yoreh De’ah #131) writes, in the name of Shiltei Giborim in our sugya, that whenever Jews live among the idolaters, and there is a possibility of animosity on the part of the idolaters if we would refuse to heal an idolater because of our Shabbos, a Jew may violate the Shabbos, even in areas of Torah law.

And in Choshen Mishpat #194, Chasam Sofer adds that nevertheless that, whenever possible, violating a Torah law should be avoided. If this is not possible, then, as we mentioned, a Torah law may be broken. Teshuvos Tzitz Eliezer (5:15) understands that the opinion of Tosafos (Avoda animosity we would only be allowed to/ הביא is that in order to avoid) ’ףסוי ר רבס .Zara 26a, d.h violate a rabbinic law, but not a Torah law.

Ritva implies that we may never violate the Shabbos to simply avoid animosity of idolaters, not a Torah law, and not even a rabbinic law. Obviously, there are varying conditions which can create animosity. If we would inform the non-Jew that we cannot cure him because it is our Shabbos, this could solve the situation, but, more often than not, it may make things even worse. This, in turn, might lead to Jewish lives becoming at risk.

Therefore, whenever there is even a slight risk that our refusing to treat the ill idolater might lead to Jewish lives being at risk, we certainly can and should rely upon the opinion of the Chasam Sofer, and even a Torah law may be violated to avoid animosity or any breakdown of understanding and cooperation between our community and our idolater hosts.

A conflict between two gemoros: Setting up the Paradigm4

whoever goes out to save , לכ יה םיאצו ליצהל וח ירז ן ןמוקמל The Mishna in Our Daf states that [someone whose life is in danger] may return to his place [where he was originally].

that Chazal permitted , וריתה ןפוס םושמ ןתליחת explain that this is an example of ( לכ .Tosafot (s.v the completion of an action on account of its beginning. This concept is presented in the Gemara (Beitza 11b) where the Gemara presents three cases in which Chazal permitted work to be completed on Yom Tov, despite the fact that only the initiation of that work was necessary for Yom Tov.

4 https://www.koltorah.org/halachah/pikuach-nefesh-and-shabbat-part-iv-by-rabbi-howard-jachter

9 Chazal felt that if they did not permit the completion of these tasks, people would be unwilling to begin these tasks, which were necessary for the community. Similarly, if those who went to save others were forbidden to return home, there is concern that they would be reluctant to undertake the mission of mercy. It is important to note that the Magen Avraham (794:81) restricts the application of this rule to Rabbinic laws. In other words, the person returning from a mission of mercy is permitted only to violate Rabbinic but not Biblical prohibitions (see, however, Teshuvot Chatam Sofer Orach Chaim 302).

The Gemara (Eruvin 54a) poses a question on this Mishna. The Mishna (Rosh Hashana 32b) records that at first those witnesses who came to testify about the new moon, and had come the Shabbat boundary, were only permitted to stay within the immediate , חת ו ם from beyond the Rabban Gamliel the elder, the .( אל .area this destination (see Tosafot Rosh Hashana 32b s.v Mishna continues, issued a decree, enabling that the witnesses to walk two thousand cubits in any direction - in other words, they enjoyed the same status as the residents of the place they came to. Similarly, the Mishna adds, the midwife who came to aid the birthing of a child, someone who comes to rescue people from an invading army, a raging river, a collapsed building, or fire, all are entitled to walk two thousand cubits from their immediate destination.

Gemara Eruvin 54a

The contradiction between the Mishna in Eruvin and the Mishna in Rosh Hashana is quite clear. The Mishna in Rosh Hashana limits one who has come on a rescue mission to walking within the two thousand-cubit Shabbat boundary of the town to which he came to save lives. The Mishna in Eruvin seems to indicate that it is permissible for the rescuer to return home, even if his home is beyond the Shabbat boundary.

The Gemara presents two resolutions to this apparent contradiction. Rav Yehuda states in the name of Rav that when the Mishna in Eruvin permits returning to one's place of origin, it is teaching only that when a soldier returns from his mission may he carry his weapon. The reason for this permission is due to a decree Chazal issued on the heels of a tragic incident. The Braita records that at first the practice was that if war was waged on Shabbat, the soldiers would place their arms in the house nearest to the town wall after the hostilities ceased. However, one time the enemy realized this practice, (and the resultant vulnerability of the soldiers) and they took advantage and attacked (similar to the Arab attack during the 1973 Yom Kippur War when the Arab nations took advantage of our observance of the Torah).

As a result, the Jewish soldiers all rushed into the house near the wall to retrieve their weapons and in the resulting confusion more Jews killed each other than died in the subsequent battle. At that point, the rabbis decreed that soldiers may return with their weapons. Rav Shlomo Zalman Auerbach (Minchat Shlomo p. 85) adds that after the decree it is not proper to be stringent, as it may pressure others to be strict and result in future tragedy similar to the one recorded in the Braita.

10 Rav Nachman bar Yitzchak, however, resolves the apparent contradiction of the Mishnayot in the following manner. The Mishna in Rosh Hashana speaks of a time of a strong Jewish presence when the two-thousand-cubit limit was sufficient. The Mishna in Eruvin, according to Rav Nachman bar Yitzchak, is speaking of a time where the Jews were regretfully less powerful and thus felt insecure if they could not return home (even beyond the Shabbat boundary) without their arms. The Rosh (Eruvin 4:5) cites the Maharam of Rothenberg who rules that the Halacha follows the approaches of both Rav and Rav Nachman bar Yitzchak. The Shulchan Aruch (chapter 704) appears to follow this ruling.

Rambam and Shulchan Aruch

The tension between the mishna in Rosh Hashana and the one in Eruvin finds its way into the Rambam and Shulchan Aruch. The Rambam, on one hand, in Hilchot Shabbat 2:32 writes "that Jews who went to war on Shabbat to aid their brethren, are permitted to return to so as not to cause danger ', דכ י אלש ישכהל ל ן יתעל ד אבל ' their place of origin carrying their weapons in the future." On the other hand, the Rambam writes (Hilchot Shabbat 72:71) that those who go to save Jewish people who are attacked or whose lives are threatened, are permitted to return with their weapons to their place of origin, only if the Jewish presence is weak and the Jewish soldiers fear exposure to attack.

Similarly, the Shulchan Aruch (Orach Chaim 923:9) presents tersely the rule that "those who go on a lifesaving mission are permitted to return with their weapons to their place of origin." Yet, later in chapter 704, the Shulchan Aruch limits this permission to a situation where Jewish security is shaky and the Jewish soldiers feel vulnerable.

Reb Moshe5 and the individual physician

R. Moshe Feinstein, in his landmark discussion of the topic, (Igrot Moshe, O.C. 4:80) similarly employs pikuach nefesh in justifying the violation of Bibilical prohibitions.

In contrasting the permission granted to witnesses of the new moon (who are also afforded certain leniencies with a similar reasoning, R. Feinstein states: “[regarding the] concern that perhaps individuals will be hesitant to travel in circumstances of pikuach nefesh, even if it is only a small concern, we must be more mindful of it, for we violate the Sabbath [in situations of] life- endangerment even for very small concerns, as stated in the Talmud in Yoma 83a.”

Hence, he is directly ascribing the permission to return home to the underlying concern of safek pikuach nefesh, where even a very small concern warrants violation of Biblical prohibitions.

5 Jonathan Weisen MD, Driving Home on Friday for the Observant Physician: Toward a New Mindset https://www.yu.edu/sites/default/files/legacy//uploadedFiles/Academics/Seminary/RIETS/Programs/Jewish_Medical_Ethics/Ver apo_Yerapey/Driving%20Home%20on%20Friday%20for%20the%20Observant%20Physician%20Toward%20a%20New%20Mi ndset.pdf

12 R. Feinstein uses similar reasoning over the course of his article, using the concern for endangering life in the future as the foundation for his innovative opinion. The application of the leniencies related to cases of potential danger (safek pikuach nefesh) to driving in return trips on the Sabbath may explain a seeming contradiction in Maimonides’ codification of these laws.

In the second chapter of the laws of the Sabbath Rambam rules that those who assist their brethren in dangerous situations may “return along with their weapons to their initial location on the Sabbath so as not to cause them to stumble in the future,” implying that one may violate Biblical prohibitions upon returning from a dangerous situation. However, in chapter twenty-seven he states that “anyone who goes out to save…has two thousand cubits from the place of where the rescue took place,” implying that one may not violate Biblical prohibitions upon returning from lifesaving situations, as the rescuer may travel only two thousand cubits and not all the way back to his original location.

Most commentaries note this seeming contradiction in the Rambam and understand that his later law is a qualification of the earlier one and that in principle, after a mission of mercy, one may travel only two thousand cubits unless one encounters a situation similar to those described in Eruvin (i.e., if leaving one’s weapons would create a situation of danger or if there is an antagonistic government in power, in which case it would be dangerous to remain in place after battle.

UNCERTAIN PIKU'ACH NEFESH AND PUBLIC POLICY

Rav Chaim Navon writes:6

The Mishna states that one profanes Shabbat even for uncertain piku'ach nefesh (saving of an endangered life):

R. Matiya ben Charash says: Someone who has a pain in his throat - we cast medicine into his mouth on Shabbat, because it is an uncertain [danger to] life, and every [instance of] uncertain [danger to] life sets aside Shabbat. A person upon whom a building has collapsed, and there exists a doubt whether he is there or not there, whether he is alive or dead, whether he is a Cuthean or an Israelite – we remove the debris for his sake. (Yoma 83a)

Following the collapse of the roof of the Versailles wedding hall, R. Israel Lau, then the Chief Rabbi of the State of Israel, ruled that the rescue efforts should continue on Shabbat. While the press spoke with great excitement about "the novel ruling of R. Lau," there was nothing really new about it; it was, in fact, an explicit Mishna.

6 https://www.etzion.org.il/en/uncertain-pikuach-nefesh-and-public-policy

It is true, however, that not every instance of uncertain piku'ach nefesh justifies the desecration of Shabbat. One of the criteria limiting the allowance was established by R. Yechezkel Landau, the Noda Biyehuda, in the course of his discussion regarding the permissibility of performing autopsies:

…Concerning an incident that occurred there involving a patient suffering from gall stones, whose doctors performed surgery following common medical practice, but the surgery was unsuccessful and he died. The halakhic authorities of the city were asked whether it was permissible to dissect the corpse in that area, in order to obtain a clear view of the source of the disease. [This was all] in order to acquire medical knowledge for the future, should such a case occur again; that they should know how to perform the surgery, and thus avoid the danger of unnecessary incisions. Is this forbidden because it involves disfiguring and disgracing the corpse, or is it permitted because it will lead to the saving of lives in the future?…

I am astonished. If this is called even uncertain piku'ach nefesh, then why all the discussion? Surely this is governed by the explicit ruling that even uncertain piku'ach nefesh sets aside the stringent laws of Shabbat… However, all this applies when we have before us a case of uncertain danger to life; e.g., a sick patient or a collapsed wall… But in the case under discussion, there is no patient that needs this [now]. The only reason they wish to acquire this knowledge is that perhaps there will be a patient who will need it. We may certainly not

14 set aside a Torah prohibition or even a rabbinic prohibition because of this unlikely concern. For if you consider such a concern uncertain piku'ach nefesh, then all preparations of medications – grinding and cooking medicines, preparing a scalpel for blood-letting – should be permitted on Shabbat, for perhaps a sick person will arrive today or tonight and he will need it. And it is difficult to distinguish between a concern that is near in time and one that is far-off. (Responsa Noda Biyehuda Tinyana, Yore De'a, no. 210)

The Noda Biyehuda argues that one may not profane Shabbat now because of the possibility that this will save a life in the future. That is to say, one may not violate a Shabbat law when there is no one presently before us whose life will be saved through the commission of that transgression. It should be mentioned that there is room to disagree with the Noda Biyehuda's comparison. He argues that if we allow uncertain piku'ach nefesh of this sort, we should always desecrate Shabbat by preparing medications, "for perhaps a sick person will arrive." But there is no similarity between the cases. Preparing medical instruments or medications on Shabbat because of the possibility that a sick person will arrive would indeed be foolish. Regarding medical training, however, there is no uncertainty. There is no question that at some point in the future one of the current medical students will find himself treating a patient with the same illness. Uncertainty may indeed exist as to the degree that the autopsy performed now will enhance his future medical skills, but that is a doubt of an entirely different sort.

R. Moshe Sofer, the Chatam Sofer, writes in one of his responsa (Yore De'a, no. 336): "According to this, if there were before us a patient with a similar disease, and we would wish to perform an autopsy on the corpse in order to cure the patient, it would almost certainly be permissible." This

15 implies that we assume that performing the autopsy will indeed enhance the doctor's skills and contribute to the saving of life.

The only problem is that there is no patient before us. Regarding the professional training of doctors, however, is this really "an unlikely concern," as argued by the Noda Biyehuda?

Indeed, the Chazon Ish proposes a different approach, which at first glance appears much more logical:

The Noda Biyehuda and the Chatam Sofer [write] that if there is a sick person before us, one is permitted to disfigure a corpse for the sake of piku'ach nefesh, but if there is no sick person before us, this is forbidden. The difference is not between there being a sick person before us and there not being a sick person before us, but whether it is common. For at a time that we sound the blasts [even if there is no sick person before us] because of a disease that is spreading, it is like a case where the enemies are laying siege to a border town… Just as we do not prepare weapons on Shabbat during a time of peace, for were you to do so, you would cancel all the mitzvot. Rather, we do not include in the category of uncertain piku'ach nefesh future possibilities that have no basis in the present. And in fact we are not experts on the future. There are times that things we thought would save lives turn into a stumbling block. Therefore we do not consider things in the distant future. (Chazon Ish, Ohalot 22:32)

The Chazon Ish soundly argues that whenever a disease is relatively common, we view the situation as if there were a sick person before us. When, however, the disease is uncommon, we are not concerned about its breaking out in the future. The beginning of the passage implies that we are dealing here with a formal reservation, but the end of the passage clarifies that we are simply incapable of making calculations regarding piku'ach nefesh in the future. Perhaps, in another two years, a new cure will be discovered for a certain disease, making the autopsy superfluous. It may be argued, however, that if we are dealing not with a formal reservation, but with calculating probabilities, then such a case should still fall into the category of uncertain piku'ach nefesh.

R. Ya'akov Ettlinger, author of Arukh le-Ner, in the course of an entirely different discussion, proposed a different criterion for assessing uncertain piku'ach nefesh in the future:

Even though we are guided by the principle that nothing stands in the way of piku'ach nefesh, and that with respect to piku'ach nefesh, we do not follow the majority, this is only when there is a certain danger to life before us; e.g., where a building collapsed. In such a case, we are fearful about even the smallest minority. But when presently there is no piku'ach nefesh, but only fear regarding some future danger, then we follow the majority, as we do regarding prohibitions. For were this not true, how would it be permissible to sail out to sea or travel through a desert, things for which we must express gratitude for surviving? Why is it permissible to enter into danger and violate the prohibition, "Take good heed to yourselves" (Devarim 4:15)? Rather, you must conclude that since when the person sets out, there is not yet any danger, we follow the majority. (Responsa Binyan Tziyon, no. 137)

16 According to R. Ettlinger, a distinction must be made between future danger and present danger. In the face of present danger, we consider all possible danger to life; in the case of future danger, on the other hand, we follow the majority, and do not consider every possible danger. What are the ramifications of this position regarding autopsies performed for the sake of medical training?

It is highly likely that some of the medical students participating in such autopsies will utilize the knowledge gained from the procedures to treat patients suffering with the same disease. It should also be noted that there is room to question his proof:

It is possible that sea and desert travel are not considered acute dangers, and clearly we do not regard every trivial danger as piku'ach nefesh. It is further possible that regarding the allowance to enter into danger, we follow the normal standards of human behavior, and "the Lord preserves the simple" (Tehilim 116:6). This is the position (without reference to the Binyan Tziyon) of R. Unterman and also R. Shlomo Zalman Auerbach.

R. Herzog approaches this issue from a different angle in the context of a discussion of police activity on Shabbat. In the course of his discussion he cites another source relevant to the issue. His point of departure is a passage in Eruvin, our daf,

17 Mishna: All who go out to rescue may return to their place… Gemara: This is difficult, for we have learned in a Mishna: "…One who comes to rescue from an invading troop, from a river, from a collapsed building, or from a fire, are treated like the inhabitants of the city and have two thousand cubits in every direction." And no more? But surely you said: "All who go out to rescue may return to their place" – even more! Rav Yehuda said in the name of Rav: They return to their place with their weapons. As it was taught: "At first they would leave their weapons in the house adjacent to the wall. Once they were detected by the enemy, who pursued them, and they entered [the city] to take their weapons, and the enemy entered after them. They pressed one upon the other and killed one another in greater numbers than were killed by the enemy. At that time, they enacted that they should return to their place with their weapons." Rav Nachman bar Yitzchak said: There is no difficulty; here where Israel defeated the nations of the world, and here where the nations of the world defeated them. (Eruvin 44a-45b)

The Mishna teaches that those who set out on a rescue mission on Shabbat are permitted to return to the place from which they had set out. The Gemara asks why the rescuers are permitted to return home, even beyond two thousand cubits.

The Gemara proposes two answers. According to the first answer, they are not permitted to return home if it is more than two thousand cubits, but they are permitted to return with their weapons (apparently, even when this involves carrying from the public domain to the private domain). This is because of piku'ach nefesh, in the wake of an actual incident. According to the second answer, they are permitted to return home even beyond two thousand cubits when it was the enemy who had emerged victorious, here too apparently because of piku'ach nefesh.

The Rambam, however, offers a different rationale for the allowance:

There is a mitzva upon all members of Israel who are able to do so to come and help their brothers under siege and rescue them from non-Jews on Shabbat, and they must not tarry until the conclusion of Shabbat. After having rescued their brothers, they are permitted to return to their place with their weapons on Shabbat, so as not to cause them not to come in the future. (Hilkhot Shabbat 2:23)

The Rambam writes that the reason for the allowance to return with their weapons is not immediate piku'ach nefesh, but so as not to cause them not to come in the future, i.e., so that they should not refrain from coming to their brothers' rescue in the future. It is not clear why the Rambam fails to mention the reason brought in the Gemara, because of the incident, etc. R. Yisraeli suggests that according to the Gemara's reason, it is not clear why the rescuers should not be required to remain where they are (at least in the case where they were victorious) together with their weapons, in which case they will not be in any danger, for the problem of immediate endangerment to life only arises when they leave without their weapons.

Regarding this ruling of the Rambam, R. Herzog writes as follows:

Regarding policemen who go out to arrest a thief who has already been apprehended, but must be brought into custody, or else he will run away – here there is no direct piku'ach

18 nefesh, but there exists a concern, as stated, that if there is no police response in such a case, there will be an increase of robberies on the holy Shabbat… Now earlier we cited the Rambam who permits those who come to rescue to return to their place with their weapons, lest if you be stringent with them, they will refrain from coming the next time. We understand from this that even a concern about piku'ach nefesh in the future constitutes grounds for allowance. Nevertheless, the two cases are not entirely similar. First of all, it is not sufficiently clear here that the thieves are killers, for there are those who run away as soon as they are detected by people. And second, since the entire allowance is based on the argument that if we do no permit it, robberies will increase – surely the great majority [of policemen] unfortunately do not consider the rulings of the Rabbinate, and they in any event will not refrain from coming, and so the prohibition would not bring about an increase in robberies. And in general, it is difficult to decide on an allowance because of the concern for piku'ach nefesh, for undoubtedly there must be some limit to the concern for piku'ach nefesh… This matter requires further study. (R. Y. Herzog, Be-Tzomet ha-Torah ve-ha-Medina, III, pp. 13- 14)

R. Herzog brings what appears to be a strong proof to allow Shabbat desecration for the sake of future piku'ach nefesh: The Rambam rules that those who go out on a rescue mission are permitted to return together with their weapons, apparently even in a place where this involves a Torah prohibition, and he offers the explanation (which does not appear in the Gemara) that we are afraid that if we do not permit this, the next time they will not go out to rescue. Thus we see that the Sages permitted the desecration of Shabbat because of possible piku'ach nefesh in the future.

There is another interesting point in the words of R. Herzog: He notes that his ruling will have no practical ramifications regarding piku'ach nefesh, for in any case most policemen will not listen to him. This is a very problematic halakhic-philosophical idea. Should a halakhic ruling be issued on the assumption that it will not be accepted, or should a halakhic ruling be issued with the hope that it will guide all of Israel?

19 R. Shaul Yisraeli, (my Rosh Yeshiva in Merkaz Harav) in his response to the position put forward by R. Herzog, greatly expands the allowance based upon future piku'ach nefesh, in contrast to the approaches of the Noda Biyehuda and the Chatam Sofer:

We learn from here the rule that even piku'ach nefesh that is not before us, neither at this moment nor afterwards, but it is clear to us that it will arrive at some point in the future - we view it as if it were already before us. For this obligation of "And he shall live in them" is constantly before us, not only with respect to life at this moment, but rather we are constantly commanded to worry about the saving of life that will have to be in the future, even though we don't know when or how… It seems then that there is also no room to make distinctions based on the frequency of that which will come in the future. For even if there is only a one in a thousand chance of it occurring, the saving of one life at some time in the future suffices to allow and to obligate performing these actions of Shabbat desecration, which fall into the category of preparations for such rescue. (Rav S. Yisraeli, Amud ha- Yemini, p. 212)

R. Yisraeli relies on the Rambam's position regarding those who go out to rescue, and also on the law regarding witnesses for the sanctification of the new month, who may come on Shabbat, even if they are not needed, so as not to cause them not to come in the future.

There is room here to raise another consideration. Thus far we have spoken about uncertain future piku'ach nefesh in the future in general terms. It is, however, necessary, to emphasize an additional factor, which was already implicit in our discussion of the Noda Biyehuda and the Chatam Sofer. I am referring to the distinction between individual and community. When we are dealing with uncertain piku'ach nefesh regarding a community, there may be additional grounds for allowance.

The Gemara in Shabbat states:

But surely Shemuel said: One may extinguish a lump of fiery metal in the public domain, that no injury should come to the public. (Shabbat 42a)

The Ramban understands this ruling as follows:

One may extinguish a lump of fiery metal. Rashi explains that extinguishing here is not forbidden by Torah law, but only by rabbinic law, and where there is [potential] injury to the public, [the Sages] did not decree a prohibition… But in the Halakhot Gedolot I found that in the case of a coal of wood, there is no injury to the public. Why not? As long as it is not extinguished it remains red, and people see it, and do not come to suffer injury through it. But a fiery lump of metal burns even after its redness is gone, and people do not see it, and come to suffer injury through it. And R. Yehuda does not consider [potential] injury to the public, and Shemuel disagrees with him when there is [potential] injury to the public… And so too writes Rabbenu Chananel. And it is astonishing, how we permit an absolutely forbidden labor because of [potential] injury where there is no danger to life. Perhaps, according to Shemuel, all [potential] injury to the public is considered like a danger to life. (Ramban, ad loc.)

The Ramban presents the position of the Geonim, according to which a fiery lump of mental constitutes a potential danger to the public, and "according to Shemuel, all [potential] injury to the public is considered like a danger to life." Therefore, argues Shemuel, it is permissible to extinguish a fiery lump of metal found in the public domain, even though this involves a violation of a Torah prohibition. R. Yisraeli brings another proof for this principle from the allowance to initiate an optional war and thus endanger the lives of soldiers for economic gain or political prestige. This is permissible because communal economic distress is regarded as a danger to life. What is the logic in this? Why is a hazard to the public regarded as piku'ach nefesh?

R. Yisraeli offers a cogent explanation:

It seems that this is based on the idea that whatever concerns public welfare or removal of hazards, it is all regarded as piku'ach nefesh. For everything connected to public welfare has an indirect element of piku'ach nefesh. The livelihood of the individual, for example, does not involve piku'ach nefesh; but if the community will be without an income, even if it does not reach [a want for] bread, it is inescapable that one out of the many will be such that he must eat finer food, so that for him it can come to be piku'ach nefesh. And similarly every war that brings to greater prosperity, allowing us to deal more with the sick and feeble, which is not the case when economic conditions are depressed. And similarly regarding a war undertaken to enhance the king's reputation, it may be assumed that this will cause the enemies to be afraid to come, and those interested in making an alliance with him will increase, which will also lead to an improved economic state, and through this the public health will be enhanced. And similarly regarding the removal of a public hazard in the case of the fiery lump [of metal]. Even though in and of itself it is not dangerous, but it is possible that the injured party will not be able to go out to work, and it is also possible that he lives alone and will be unable to tell someone to come and help him, and thereby this little matter can lead to piku'ach nefesh. And similarly regarding other situations, that if we consider them in relation to an individual, [the danger] is distant and of no concern. Nevertheless, on the public level, it will happen in the end, and regarding piku'ach nefesh, this too must be brought into consideration. (Rav S. Yisraeli, Amud ha-Yemini, pp. 214-215)

When we are dealing with the community, every little danger is liable to lead to piku'ach nefesh regarding people found on the outskirts of society. Even moderate economic shortage is liable to lead to situations of piku'ach nefesh for such people. R. Yisraeli appends this consideration as a supporting argument to allow police activity on Shabbat.

Similar considerations are mentioned also in the name of R. Shlomo Zalman Auerbach:

The person who raised the question was a young man who served in the army in the intelligence corps, where they succeeded in intercepting a communications network of a hostile country and decoding its cipher. It was the soldier's role to decode the cipher by way of a computer. Obviously, this decoding involved the desecration of Shabbat. He told his commander that on Shabbat he preferred to decode only some of the messages, those regarding which in his opinion there is a high probability that they are relevant to Israel…

21 We went together to the Gaon, R. S.Z. Auerbach to ask his opinion, and he ruled that the soldier must decode all the messages… Even though there is no difference in Halakha between piku'ach nefesh of an individual and that of the community, and even for uncertain piku'ach nefesh of an individual we desecrate the Shabbat, nevertheless there is a great difference between them regarding the level of danger that is regarded as piku'ach nefesh… For example, people are not deterred from undertaking inter-city journeys, even though there is a certain risk factor, for argument's sake one in ten thousand. But there is no question that a head of state who would assume a one in ten thousand chance danger for his country would be regarded as irresponsible in his actions, for in the case of a community, such a level of danger is regarded as danger. Therefore, R. S.Z. Auerbach ruled that the soldier must decode all the messages, for they deal with matters relevant to national security, even though the same degree of danger in the case of a private person would not be regarded as piku'ach nefesh. (R. M.M. Farbstein, Assia LIII-LIV, 1994, p. 100)

Here the rationale is not that the situation will lead to piku'ach nefesh on the fringes of society, as in the cases mentioned by R. Yisraeli. If there is a risk of war, the danger relates to the entire community, and not only to problematic extreme cases. R. S.Z. Aurbach raises a slightly different point: When we are dealing with a risk to the entire community, we do not take chances. R. Yisraeli had related to a case of danger that threatens an individual, but when the danger relates to a large community, it is close to certain that some individual will suffer injury. R. Auerbach relates to a case where the danger threatens the community as a whole.

R. Goren goes one step further, sharpening the differences between piku'ach nefesh of an individual and piku'ach nefesh of the community. He argues that in the State of Israel there is the

22 added element of governmental responsibility toward its citizens, and in light of this there is room to consider even distant concerns in the future:

The position of the Noda Biyehuda and the Chatam Sofer is correct and applicable from a halakhic perspective, but only when we are talking about Jewish doctors in the Diaspora, who bear no responsibility for the health of the people in the country. They are only bound by the mitzvah and the duty to treat patients who turn to them, but are not responsible for planning short-term or long-term medical services. Regarding them, the basic outlook of the great authorities mentioned above is correct, that in the absence of a sick person standing before them, they may not use the criteria of piku'ach nefesh in order to worry about sick people in the future, who may never appear before these doctors, and if they appear, this insubstantial possibility does not constitute a basis to permit Torah prohibitions for doctors, who are not responsible for medical services in the future. However, when we are dealing with an independent Jewish state, where the government of Israel is responsible to design a medical system in the country for all its citizens, this national responsibility does not express itself in the daily individual planning of medical services in Israel, but rather in overall long-term responsibility. Surely it is clear that every year a significant number of patients requiring a transplant will be admitted to the country's hospitals. If we do not worry from the outset about organ donations, we will not be able to satisfy the many requests that will arise. (Rav S. Goren, Torat ha-Refu'a, p. 80)[7]

R. Goren's assertion appears revolutionary; but it seems possible to formulate it in a more logical fashion. In the Diaspora, a posek rules for the individual doctors who ask him their questions. His halakhic position does not effect the entire medical system. In the State of Israel, however, the posek decides – at least in the optimal situation – for the government and the entire system, and therefore he must consider the effects of his rulings from an overall systemic perspective, taking into account far-off future considerations. It seems that we are not dealing with a special law applying to a state in the formal sense. Had a similar question arisen in the autonomous Jewish region that the Soviets had tried to establish in Azerbeijan, the law would have been the same: wherever the medical system is in the hands of Jews, and the halakhic rulings will have an impact on the systemic level, we must take such considerations into account.

In light of this principle, R. Goren rules that autopsies for the sake of medical training should be permitted in the State of Israel, even according to the positions of the Noda Biyehuda and the Chatam Sofer (ibid., pp. 214-215).

When I started medical school (1969) I asked the Chief Rabbi Rav Jakobovitz (OBM) this same question, and was told dissection in my medical training was permissible.

Ironically my anatomy tutor was a Christian from Cambridge University who understood my reticence and in deference to my orthodoxy allowed me to refrain from dissection on condition I never missed an anatomical session and would be present for all dissection sessions.

The next 18 months I attended every session without fail and, never having touched a corpse, passed my anatomy finals.