The Bystander’s Duty to Rescue in Jewish Law*
Aaron Kirschenbaum, J.D.
In Judaism, the bystander’s duty to come to the
rescue of his fellow man who is in peril is religious, ethical and legal. A
citizen is expected to engage in the act of rescue both personally and with his
financial resources. He is required, however, neither to give his life nor to
place his life in substantial jeopardy to save his fellow. Moreover, there is
no ethical requirement to donate an organ in behalf of another; nevertheless,
such an act is today regarded as of special nobility and piety. Although
failure to come to one’s neighbor’s rescue incurs no criminal sanction, the
legal nature of the duty is evidenced by (1) the right of the rescuer to sue
for all financial losses incurred as a result of the rescue operation, (2) the
rescuer’s immunity to liability, and (3) the exemption he enjoys from all
positive legal, civil, and ritual duties while he is actively engaged in the
rescue operation.
In the early hours of the morning of March 14, 1964, a young woman named Kitty Genovese was attacked on her way home in Queens, New York. The unknown assailant made several separate attacks on her over a period of about forty minutes, and she finally died of the stabs he had inflicted on her. As the police subsequently ascertained, at least thirty-eight neighbors had heard her screams for help, some may have also seen her struggle, yet no one intervened – not even to call the police.
This example of neighborly inaction generated
widespread discussion and analysis. Newspaper reporters made special reports of
the incident. The University of Chicago Law School sponsored a “Conference on
the Good Samaritan and the Bad – the Law and Morality of Volunteering in
Situations of Peril, or of Failing to Do So.” The American Psychological
Association (in 1966) held a special session devoted to the problems of the
“unconcerned bystander.” Numerous studies, papers and articles were written
with the Kitty Genovese incident as their point of departure.
Social scientists and legal scholars, philosophers
and moralists have shown widespread interest and concern in learning how people
really behave in situations which thrust them into the potential role of one’s
brother’s keeper – and why. Much time and effort have been invested in
discovering how society, by the values it fosters and the code of behavior it
sponsors, affects that behavior – allowing for indifference and actually
cultivating a desire not to get involved, or, on the contrary, encouraging active
intervention to assist a fellow human being in peril and thus transforming the
unconcerned bystander into a Good Samaritan.
With these questions in mind, we turn to the Jewish
legal system to learn how historic Judaism coped with these problems.
The Talmudic ethico-legal duties of the innocent
bystander, i.e., one who happens to find himself in the presence[1] of a person in
peril – in danger of being victimized by a crime or in distress caused by some
natural threat or catastrophe – are summarized by Maimonides (1135-1204) in his
Code as follows:
If one person is able to save another and does not
save him, he transgresses the commandment neither shalt thou stand idly by
the blood of thy neighbor (Leviticus 19:16). Similarly, if one person sees
another drowning in the sea, or being attacked by bandits, or being attacked by
wild animals, and, although able to rescue him either alone or by hiring
others, does not rescue him; or if one hears heathens or informers plotting
evil against another or laying a trap for him and does not call it to the
other’s attention and let him know; or if one knows that a heathen or a violent
person is going to attack another and although able to appease him on behalf of
the other and make him change his mind, he does not do so; or if one acts in
any similar way – he transgresses in each case the injunction, neither shalt
thou stand idly by the blood of thy neighbor... (ibid.)
Although there is no flogging for these
prohibitions, because their breach involves no action, the offense is most
serious, for if one destroys the life of a single Israelite, it is
regarded as though he destroyed the whole world, and if one preserves the life
of a single Israelite, it is regarded as though he preserved the whole world.
(Maimonides, Torts, “Murder and Preservation of Life” 1:14, 16).
The scriptural words upon which Jewish law bases
the obligation to come to the assistance of one in peril, lo ta‘amod ‘al dam
re‘eka, are found in the following context:
Ye shall do no unrighteousness in judgment; thou shalt not respect the
person of the poor, nor favor the person of the mighty; but in righteousness
shalt thou judge thy neighbor. Thou shalt not go up and down as a talebearer
among thy people; neither shalt thou stand idly by the blood of thy neighbor: I
am the Lord (Leviticus 19:15-16).
The Jewish interpretation, found in the Talmud
(Babylonian Talmud Sanhedrin 73a), is the unique contribution of rabbinic
teaching to the exegesis of the Leviticus passage. Although its literary formulation
emanates no later than from the third century C.E., thereby antedating
Maimonides by at least nine hundred years, the early Talmudic masters (Tannaim)
who transmitted it regarded it as hoary tradition. It is thus from time
immemorial that the verse, lo ta‘amod ‘al dam re‘eka, has served as the
traditional Jewish version of what modern lawyers refer to as “the law of the
Good Samaritan.”
As if to fortify the Good Samaritan principle, the
Tannaim went further and enlisted the law of lost articles, as follows:
Whence do we know [that one must save his neighbor from] the loss of
himself? From the verse (Deuteronomy 22:2) and thou shalt restore it to him
(Sanhedrin 73a).[2]
Examining both tannaitic statements, this one and
the one cited by Maimonides above, later scholars attempted to formulate the
particular contribution of each one. Thus the later rabbis in the Talmud itself
raise the question of the apparent superfluity of the two verses teaching the
same duty to rescue. They come to the conclusion that the verse, thou shalt
not stand idly by, broadens the duty from the person to the purse, i.e., it
obligates the bystander to go to extraordinary lengths to save the victim –
even to the extent of actually hiring help – whereas the duty to rescue derived
from the law of lost articles would have been limited to one’s personal ability
– no more (Sanhedrin 73a). Early medieval scholars raise the converse
question: If thou shalt not stand idly by is all encompassing, what need
did the Tannaim have to derive anything from thou shalt restore it to him?
Their answer: The latter verse includes the duty to come to the assistance of
one who is in distress but not in any peril, e.g., one who is lost in a forest
but would eventually be able to find his way out.
Other medieval scholars add that the duty of rescue
is not limited to circumstances creating a clear and present danger; even if
the peril is somewhat obscure and doubtful, the duty to enter into a rescue
operation is not thereby diminished. Whether the duty exists vis-a-vis a person
attempting suicide or one whose negligence created the peril is a matter of
dispute among the rabbinic author- ities of the past four centuries
(Kirschenbaum, 1976:14).
In the second paragraph of the Maimonidean passage
quoted at the beginning of the previous section, it is stated that the innocent
bystander who deliberately fails to come to the aid of one in peril is not
subject to legal punishment.
Why is this so?
Does this indicate the halacha (Jewish law) regards
the duty of the Good Samaritan as simply a moral one?
Classical Jewish law,
i.e., the authoritative Talmudic exposition of the formal law of Sacred
Scripture, prescribes flogging for the breach of any negative commandment whose
punishment is not otherwise specified. The infliction of stripes, however, is
limited to those prohibitions whose violation involves an overt act; pro-
hibitions whose violation comes about through covert inaction do not entail
flagellation, certainly not the death penalty.
This limitation, however, is more of an indication
of classical Jewish penological theory than it is of the nature of the
prohibitions which are thereby excluded. Earthly punishment, in Jewish theory,
is aimed at the active, flagrant violation of the law; it is not employed to
induce general obedience to the law nor to force citizens to do their duty.
Hence in the context of Jewish legal teaching, the
Maimon- idean comment, already quoted:
Although there is no flogging for these prohibitions
[of standing idly by the blood of one’s neighbor], because breach of them
involves no action, the offense is most serious, for if one destroys the life
of a single Israelite, it is regarded as though he destroyed the whole world,
and if one preserves the life of a single Israelite, it is regarded as though
he preserved the whole world (Maimonides, 1949:1:14-16).[3]
Is no mere pious mouthing but an ethical imperative
of the first magnitude.
It is a fact of history that in Jewish society –
biblical, Talmudic and medieval – non-prosecutable injunctions, by their sheer
religious weight, were effective in their deterrent power.
It would be misleading, therefore, to interpret the
lack of judicial punishment in Jewish law for the innocent bystander who fails
in his duty to come to the rescue of his fellow man in distress as indicating
that the duty is merely moral. Rather Jewish law views such failure as
nonfeasance, a formal offense of inaction (delictum mere omissivum)
where action is a duty required by law.
III. The Extent of the Obligation to Rescue
A. In Monetary Terms
We have already seen that, according to the Talmud,
had the duty of the bystander to come to the rescue of his fellow man in peril
been derived as an extension of the law regarding the restor- ation of lost
property, it would have been limited to the personal ability of the rescuer. Thou
shalt not stand idly by, however, implies an allencompassing duty –
including one’s financial resources as well.
But this obligation does not represent a lien on
the property of the bystander; the duty remains a personal one. Thus, although
one’s financial resources must be utilized without apparent limit[4] in order to
save the victim, the rescuer has the right to sue the rescued party in order to
recover the money expended (Rabbi Meir Halevi Abulafia, Yad Ramah, Sanhedrin
73a). This holds true even if the victim protests, wishes not to be rescued,
and later refuses to compensate the rescuer.[5] On the other
hand, even if the latter is destitute and may subsequently plead bankruptcy,
the duty of the rescuer remains unchanged (Rabbi Asher ben Yehiel, died 1327, Sanhedrin
8:2).
The rescuer’s right to compensation for
expenditures and losses incurred are alluded to rather briefly and
superficially in the sources. It seems to me that rabbinic authors found it
unnecessary to go into detail because the Talmudic references to the law of
lost objects as being relevant to the duty to rescue people in peril meant to
them that the rules of compensation which obtain in restoring lost objects to
their owners – which are spelled out in great detail in the Talmud,
commentaries and codes – could be applied, where necessary and appropriate, to
cases involving the saving of life – with proper provision being made
occasionally for the special significance of the latter.
An examination of the rules of compensation for the
res- toration of lost property yields the following conclusions:
1.
The actual act of rescue,
being the fulfillment of a religious duty (mitzvah), warrants no monetary compensation
(Tosafot, s.v. im, Bava Mezia 31b).
2.
If the actual act of
rescue takes places during working hours and, therefore, requires the sacrifice
of the rescuer’s pursuit of a livelihood, he is entitled to a minimal wage.[6] If this is
unsatis- factory to him, he must receive court permission for full compen-
sation for the loss involved in leaving work. If the court is not in session,
the law of lost objects declares that his own economic interests take priority
over the economic interests of his fellow (Mishna Bava Mezia 2:9). This
declaration is obviously inappro- priate in the case of the peril of one in
distress; it seems clear that in the latter case full compensation for the
labor of the rescuer would be the rule.[7]
3.
Expenditures made
legitimately by the rescuer would also be recoverable in full (Maimonides
Torts, “Robbery and Lost Objects,” 13:19; Tur and Shulhan Arukh
Hoshen Mishpat 267:26).
4.
The cost of damages and
disabilities incurred by the rescuer in the course of the rescue operation,
however, could not be recovered by the rescuer. The Jewish law of tort
obligates the tortfeasor, and the tortfeasor only, for damages incurred; no one
else – not even the one as interested as the rescued party himself – is so
obligated.[8]
Although the above is but a broad outline, it
suffices to give us a general view of how Jewish law copes with the problems of
losses incurred by the Good Samaritan.
The personal nature of the duty that one has to
rescue has led at least one later medieval authority to limit the rescuer’s
right to recover the losses he incurred in the course of his rescue operation
in a number of ways.
1.
The rescued party must,
it is true, compensate his rescuer for his losses. But if the former is
bankrupt, he need not make said compensation, even if he subsequently comes
into fortune (Mishna Peah 5:4 and Tur, Yoreh De’ah 253[4]).
2.
The rescuer’s right to be
compensated for his losses exists only if the rescue operation is successful!
If he failed in his attempt, his right for compensation is, at most, that of a
minimum wage for labor expended.[9]
3.
The obligation to
compensate the rescuer for his losses devolves upon the rescued party
himself and upon no one else, not even his close relatives (Rabbi Asher ben
Yehiel, Sanhedrin 8:2).
It is relevant to note that these three limiting
rulings were not regarded as discouraging bystanders to do their duty. On the
contrary, the very reasoning behind them is:
...For the reason [the bystander] is going to such
lengths, even to the extent of incurring monetary losses, is not that he is
doing so in behalf of his fellow [who is in peril] exclusively, but rather he
is also doing so in his own behalf to save himself [i.e.,] to discharge the
obligation placed upon him by [the Holy One], may He be blessed. Moreover, his
[heavenly] reward is a very great one indeed (Rabbi Samuel ben Moses de Medina
of Salonica, died 1589, Responsa Rashdam, Yoreh De’ah Resp. 204).
Much more complicated is the question to what extent the bystander is
duty-bound to come to the rescue of one in peril when such action would
endanger his own life. Is selfsacrifice a legal duty? Jewish law answers in the
negative, but a word of explanation is called for. The explanation concerns
itself with two tannaitic passages. On the one hand, one may not commit murder
to save one’s own life.
Rabbi Johanan said in the name of Rabbi Simon ben Jehozadak: By a
majority vote it was resolved in the upper chambers of the house of Nithza in
Lydda that in every [other] law of the Torah, if a man is commanded “Transgress
and suffer not death,” he may transgress and not suffer death, excepting
idolatry, incest [which includes adultery] and murder (Sanhedrin 74a).
It is generally agreed that this conference at Lydda took place during
and in the face of the Hadrianic persecutions which posed a most serious threat
to Jewish religious life in Palestine ca. 135 C.E. (Graetz, 1908:154-156,
428-430; Halevy, 1918:371-372).
On the other hand, one need not sacrifice one’s own life to save someone
else’s.
If two are traveling on a journey and one has a
pitcher of water – if both drink they will die, but if only one drinks, he can
reach civilization.
The Son of Patura taught: It is better that both
should drink and die rather than that one should behold his companion’s death.
Until Rabbi Akiba came and taught: That thy brother may live with thee
(Leviticus 25:36) – thy life takes precedence over his life (Bava Mezia
62a).
Not much is known about (Judah?) the Son of
Patura. He probably lived about the end of the first century or the beginning
of the second century C.E. Rabbi Akiba himself died during the Hadrianic
persecutions. Thus, the two tannaitic teachings, that of the conference at
Lydda and the one emanating from the con- troversy between the Son of Patura
and Rabbi Akiba, are more or less contemporaneous.
In order to understand the reasoning behind these two state- ments, we
cite the following passage regarding the refusal of the rabbis to allow one to
commit murder in order to save his own life.
And how do we know that this principle applies in
the case of murder, i.e., that murder may not be committed to save one’s life?
It is common sense.[10]
Even as one who came to Rava and said to him, “The governor of my town has
ordered me, ‘Go and kill so-and-so; if not I will slay thee.’”
Rava answered, “Let him rather slay you than that you should commit
murder. What makes you think that your blood is redder than his? Perhaps his
blood is redder than yours.” (Talmud Yoma 82b; Sanhedrin 74a).
The apparent contradiction in the two passages produces the principle
that, all things being equal, one may not decide – by affirmative action – whether
one’s life takes precedence over that of one’s neighbor: In the first passage,
affirmative action would have been tantamount to declaring that his companion’s
blood was redder than his own – a declaration which Jewish ethics is not
prepared to endorse. There are situations in life where inaction is the lesser
of two evils (Kirschenbaum, 1976:27).
Our exposition heretofore has been devoted to a situation where the Good
Samaritan can save his fellow man only at the price of his own life. Under such
circumstances rabbinic law exempts the citizen from the duty of selfsacrifice
and absolves him from any moral blame.[11],[12]
Is one obligated to come to the rescue of his
neighbor in distress if the rescue operation may involve a risk to one’s
life and to one’s well being?[13] How serious
must the risk be in order to qualify it under the exemption of self-sacrifice?
Or, at what point does the danger to the life or the well-being of the
bystander become so remote as to be inconsequential in the face of one’s duty
to save someone in peril?
This question as to whether the Good Samaritan need
put his own life in possible danger to save his fellow from certain
death is the subject of sustained controversy among rabbinic authorities.
Summarized briefly, rabbinic law today declares officially that there is no
such duty, but qualifies this declaration in a number of ways: (1) it
exhorts the citizen, “One must not overly protect oneself”; (2) it urges each
case to be judged on its own merits, “It seems that everything depends upon the
individual circumstances”; (3) the volunteer who does endanger his life and
limb is extolled as acting above and beyond the call of duty and as performing
a saintly act (middat hasidut); (4) the degree of jeopardy which legally
exempts the bystander from his duty must be a most substantial one, great
enough to deter him from saving his most precious possessions had they been in
similar circumstances; and (5) exceptionally, the medical practitioner is
expected to treat patients even under cir- cumstances which represent serious
danger to his own life.
If a tyrant says to a Jew, “Allow me to amputate
one of your limbs” (an amputation which represents no danger to life), “or else
I will kill your fellow Jew,” some [authorities] say that he is obligated to
allow his limb to be amputated since he would not die (Rabbi Menahem Recanati,
died early 14th century, Sefer Recanati 470).
This rather startling decision, which makes
contributions of organs for transplanting obligatory under Jewish religious and
ethical law, is the product of an Italian legalist and mystic of the late
thirteenth and early fourteenth centuries. The startling nature of the decision
is also evident from the fact that about 250 years later it is quoted verbatim
and sent to Radbaz (Rabbi David ben Zimra, died 1573, one of the leading
rabbinic authorities of his day) with a request for his reaction.
Refuting the prooftext offered by his Italian
predecessor, Rabbi ben Zimra maintained that no precedent could be cited for
such an obligation. Indeed, there was always the possibility that an oper-
ation of this sort might prove to be dangerous to the life of the individual.
And he concluded:
Moreover, it is written, And
her [i.e., the Torah’s] ways are ways of pleasantness (Proverbs
3:17); the laws of our Torah, therefore, must be in consonance with reason and
intelligence. How can one imagine that a person would allow his eye to be
blinded or his hand or foot to be cut off so that his fellow not die?
I, therefore, see no
justification for his decision. It is an act of saintliness (middat hasidut)
[i.e., above and beyond the legal requirement], and happy is the man who can
live up to it.
If, however, there is a
possible risk of life, then [one who agrees to the amputation] is a foolish
saint (hasid shoteh),[14] for the possible
danger to oneself takes precedence over the certain danger to one’s
fellow.
I have written what appears in my humble opinion
[to be the correct understanding of the law] (Responsa Radbaz III, 1053
[628]).
Radbaz’s responsum persisted to this
century as the leading de- cision on the matter. Thus, even according to those
who maintained that one is obligated to place oneself in jeopardy in order to
save another, Judaism ordained neither a legal obligation nor a moral
imperative to actually amputate or donate a limb or an organ to save someone
else’s life. On the other hand, although an operation of this kind invariably
involved a measure of danger to the amputee or donor, the tendency of the
authorities was not to denigrate the volunteer but rather to view his act –
albeit with some hesitation – as a saintly one.[15] However, as
these operations of transplantation became routine, with concomitant decrease
in danger, rabbinic hesitation to grant approval to them has become markedly
less, and the saintliness of the act has been receiving increasingly greater
recognition and appreciation.
This tendency has reached its culmination in the
responsum of former Sephardic Chief Rabbi of Israel Ovadia Yosef, published
only a few years ago (Yosef, 1976: 25-43).
On the basis of Talmudic texts and post-Talmudic
opinions, Rabbi Yosef, too, sees in Radbaz the decisive arbiter settling
the question raised: (1) one is not obligated to put oneself in serious
jeopardy to save one’s fellow. (2) One may not donate a vital limb, if the
transplantation represents serious danger to the donor.
However, recognizing presentday transplantation
procedure as involving a degree of danger to the donor less than that
con- templated in the strictures of Radbaz, Rabbi Yosef rejects the
prohibition of one colleague and overcomes the hesitation of another and
permits, nay, gives his blessing to the donation of a kidney to a patient in
dire need thereof in the following words:
But according to the information we have received
from competent and God-fearing physicians, the danger [to the donor] involved
in extracting a kidney is generally very small. Inasmuch as Radbaz and
those of his school hold, therefore, that under such circumstances the mizvah, thou
shalt not stand idly by, obtains, it follows that we must allow a healthy
person to donate one of his kidneys, to save the life of his fellow Israelite
whose life is seriously threatened by a disease of the kidneys. Great is the
mizvah of saving human life, and it [the mizvah] will afford the donor the
protection of a thousand shields. In any event, the donation must be performed
by competent physicians; and he who fulfills a mizvah shall know no
evil. (Yosef, 1976)
The essential legal-ethical limitations on the
obligation of the bystander to come to the rescue of one in peril, then, are
based upon the real possibility that the life of the bystander may be
endangered (cf. Jakobovits, 1959: 96-98). Hardship, suffering and great
inconvenience, it is clear, cannot serve as bases of exem- ption,[16] neither can
the fact that the would-be rescuer would under- go personal humiliation in
order to accomplish the rescue serve as a basis for his exemption from the
mitzvah of thou shalt not stand idly by (Rabbi J. I. Unterman, 20th
century, Shevet mi-Yehudah, vol. 1, pp. 20-21, contra the possibility
raised by Rabbi Shelomoh Kluger, died 1869, Hokhmat Shelomoh, Hoshen
Mishpat 426:1). Thus, although it would be extravagant to characterize
Jewish law as obligating one to contribute an organ to save someone’s
life, it is clear that, as a result of modern medical advancement, Jewish
religious authorities regard such contribution as a meritorious act of the
highest order.
IV. Encouraging the Would-Be Rescuer
A. Exemption from Other Duties
The basic rule of Jewish law declares that all
ethical, civil, religious and ritual positive duties are suspended if their
implem- entation or fulfillment would create or sustain danger to human life.[17] “Would” is
interpreted most broadly: “would certainly” (vadai), “would probably” (safek).
Similarly “saving life” is inter- preted as including “prolonging life
substantially” (hayyei ‘olam) and “prolonging life minimally” (hayyei
sha’ah).
This was made abundantly clear by the rabbis of
Israel before the third century in their exposition of the laws of the Sabbath,
one of the most sacred institutions of Judaism.
[Although
the preparation and administration of medicines involved the violation of the
Sabbath restrictions in human activity], Rabbi Matthia ben Heresh said: If one
has pain in his throat, he may pour medicine into his mouth on the Sabbath,
because it is a possibility of danger to human life, and every danger to human
life suspends the [laws of the] Sabbath (Mishna Yoma 8:6).
Speed is of the essence.
Our Rabbis taught: One must remove debris [i.e., an
act ordinarily forbidden on the Sabbath] to save a life on the Sabbath; and the
more energetic one is, the more praiseworthy is one; and one need not obtain
permission from the rabbinical court (Yoma 84b).
Hesitation is sinful.
They have taught: The energetic one is
praiseworthy, the [authority who is] consulted – insulted, and the inquirer – a
murderer (Palestinian Talmud Yoma 8:5).
In order to appreciate the interest Jewish law evinces in encouraging the
innocent bystander to be a Good Samaritan, it is necessary to present a brief
exposition of some of the more salient features regarding tort liability.
The basic law of torts in Jewish law is clear:
Man is always [in the category of one who has been] “forewarned” [and
hence liable for damages] whether [he acts] inadvertently or willfully under
coercion or voluntarily, whether awake or sleep (Mishna Bava Kama 2:6; Sanhedrin
72a; Maimonides Torts, “Assaults and Damages” 1:12; 6:1).
The high regard with which the halacha holds private property and
protects it from damage, trespass and theft is vividly illustrated by the
Talmudic interpretation of an episode in David’s career.
Scripture says: And David longed and said, Oh that one would give me
water to drink of the well of Bethlehem, which is by the gate. And the three
mighty men broke through the host of the Philistines and drew water, out of the
well of Bethlehem that was by the gate, etc. (II Samuel 23:15-16). [And
David refused to drink the water for it was acquired through “the blood” of
men] (Bava Kama 60b).
Now, in rabbinic psychology, “water” conjures up an asso- ciation with
Torah (divine law), and “the gate” is the courthouse, i.e., where Torah is
studied, expounded and applied to life. David’s longing for water, therefore,
is interpreted as a desire to un- derstand a problem of scriptural law; and he
sent his inquiry to the rabbinic scholars of his generation at “the gate,”
i.e., at the House of Study.
What was his difficulty?
Rabbi Huna said: [The problem was this: In his battle with the
Philistines,] there were [near the battlefield] stacks of barley which belonged
to Israelites but in which the Philistines had hidden themselves, and what he
asked was whether it was permissible to rescue oneself through the destruction
of another’s property.
The answer they dispatched to him was: [Generally speaking] it is
forbidden to rescue oneself through the destruction of another’s property; you,
however, are King, and a king may break [through fields belonging to private
persons] to make a way [for his army] and nobody is entitled to prevent him
[from doing so] (cf. Sanhedrin 20b).
We may disregard, for our purposes, the royal prerogative and the
concession to military exigencies. The answer – as it applies to the ordinary
citizen – is somewhat startling: “generally speaking, it is forbidden to rescue
oneself through the destruction of another’s property.” The definitive law is
thus as follows:
Even if one is in mortal danger and must steal from his fellow in order
to save his own life, he may do so only on condition that he intends to make
subsequent payment (Shulhan Aruch, Hoshen Mishpat 359:4).
In other words, although “nothing may stand in the way [to impede] the
preservation of human life” (‘en davar ha‘omed bifnei pikuah nefesh),
the destruction of someone’s property without inten- tion to compensate
is not necessary for the preservation of life. The same preservation of life
could be accomplished by the same indispensable destruction of property if said
destruction is per- petrated with the intention to compensate (e.g., Yad
Ramah, Sanhedrin 73b).
With this cursory presentation of tort liability in Jewish law, we have
arrived conceptually at our central problem: What is the legal position of an
innocent bystander, intent upon fulfilling Scripture’s command not to stand
idly by the blood of his neighbor, who, in the course of his act of rescue,
commits a tort?
The Code of Maimonides expounds the position of Jewish law in this
matter.
If one chases after the pursuer in order to rescue the pursued, and he
breaks objects belonging to the pursuer or to anyone else, he is exempt. This
rule is not [a matter of] strict [i.e., biblical] law [of torts], but is [an
enactment, takkanah] made in order that one should not refrain from
rescuing another or lose time through being too careful when chasing a pursuer[18]
(Maimonides Torts, “Wounding and Damaging,” 8:4).
The fourth-century Talmudic source of this provision clearly recognized
that the biblically ordained strict principle of near- absolute tort liability[19]
was being violated here. Thus Rabbah (or Rava) in the Talmud justifies this
“violation” as being in the public interest.
For if you were not to rule thus [but rather make the rescuer liable], no
one would put himself out to rescue a fellow man from the hands of a pursuer.
Lest one be inclined to give an inordinately narrow inter- pretation to
this exemption from tort liability and to limit it strictly to a bystander
intent upon saving a victim from a criminal act and to nothing else, we hasten
to add that said exemption applied to all would-be rescuers from natural
catastrophes as well as man-made harms.
Actually, the Talmud records a much earlier exemption from tort liability
granted in the interests of rescuing a human being in trouble. The exemption is
embodied in one of the ten stipulations made with the Israelites by Joshua when
he apportioned the Land to them in accordance with their tribes. It is limited
to the alleviation of the condition of a person who is lost in the woods or in
the thickets of a vineyard and cannot find his way back to his settlement.
He who sees his fellow wandering in the vineyards is permitted to cut his
way through when going up and to cut his way through when coming down and ruin
thereby the place upon which he is treading until he brings him into the town
or onto the road. And just as it is meritorious to do so in behalf of his
fellows, so it is meritorious to do so in behalf of oneself. So also one who
himself is lost in the vineyard may cut his way through when going up and cut
his way through when coming down until he reaches the town or the road [for it
was in accordance with this understanding that Joshua apportioned the Land to
Israel] (Bava Kama 81b).
That the paramount motive underlying Joshua’s stipulation
was the eagerness of the law to facilitate the rescue of a person who has lost
his way and to give this consideration top priority is evident from the
Talmudic exegesis of the above-cited passage.
What is the meaning of “so also”? [Is the latter
case not obvious?]
You might have thought that this is only the case of a fellow man
wandering, in which case [the rescuer] knows where he [the rescuer] is going,
that he [the rescuer] may cut his way through, whereas in the case of being
lost himself, when he [the lost person] does not know where he is going, he
[the lost person] should not be permitted to cut his way through but should
have to walk round about the boundaries. We are therefore told that this is not
so (Bava Kama 81b).
The whole point of Joshua’s stipulation is the creation of immunity to
tort liability (i.e., for the destruction of branches and vines).
We have thus arrived at the official encouragement Jewish law gives to
people who come to the assistance of their fellow citizens in order to rescue
them from peril. This encouragement takes the form of (exceptional) immunity
from liability for any tort comm- itted in the course of the rescue operation.[20]
Religious incentives to save someone in peril are
dual in nature: coercive and hortatory.
Saving human life is a religious commandment, and
Jewish traditional law ordains physical coercion for the fulfillment of one’s
religious duties.[21]
As our inquiry into the Jewish religious law of the
bystander comes to a close, reference must be made – albeit superficially – to
the socio-psychological impact of the religious concept of mitzvah and its
profound hortatory effect on Jewish behavior.
Rabbi Hanania ben Akashya said: The Holy One,
blessed be He, desired to make Israel acquire merit; He, therefore, multiplied
for them Torah and commandments; as it is written (Isaiah 42:21), The Lord
was pleased for His righteousness’ sake, to make the teaching [Torah] great
and glorious (Mishna Makkot 3:16).
This mishna epitomizes the traditional Jewish attitude
toward each and every commandment of God as embodied in Scripture[22] as a mark of
divine favor granting the Jew the privilege of serving his Creator by
fulfilling His wish: the more commandments, the more ways in which this
privilege is granted.
The deed is the test, the
trial and the risk. What we perform may seem slight, but the aftermath is
immense. An individual’s misdeed can be the beginning of a nation’s disaster...
Even a single deed generates an endless set of effects; initiating more than the
most powerful man is able to master or to predict. A single deed may place the
lives of countless men in the chains of its unpredictable effects...
Just as a man is not alone in what he is, he
is not alone in what he does. A mitsvah is an act, which God and man have in
common. We say, “Blessed art Thou, Lord, our God, King of the universe, who
has sanctified us with His mitsvot”... The spirit of mitsvah is togetherness.
We know, He is a partner to our act (Heschel, 1962:284, 287).
And, as for the would-be rescuer who fails, it
would be best to remember the words of Edmond Cahn:
...And herein too there is a truthful commentary on
the consequences and outcomes of morally righteous conduct. For the rescuer all
too often fails of his rescue and injures or kills himself in the effort. There
can be no guarantee of success. Some will be saved, others will be lost. The
only guarantee we have – the only one we are entitled to – is that attempts of
this kind glorify our existence which without them would be like grass and like
dust (Cahn, 1959:196).
Danger invites rescue. The cry of distress is the summons to relief. The
law does not ignore these reactions of the mind in tracing conduct to its
consequences. It recognizes them as normal. It places their effects within the
range of the natural and probable. The wrong that imperils life is a wrong to
the imperilled victim; it is a wrong also to his rescuer (Cardozo, 1921).
These memorable words were used by Judge Benjamin Car- dozo for the
limited purpose of extending the liability of a railway company for damages
beyond those suffered by the actual victim to those suffered by a would-be
rescuer (Wagner v. International Rail- way Co., 232, NY 176 [1921]).
They may be used with equal effectiveness to express the spirit of Jewish law,
which, regularly compelling active benevolence between man and man, makes it
incumbent upon a bystander to come to the aid of someone in peril.
In this respect, Jewish law is similar to the law of most European
countries but differs from Anglo-Saxon law.[23]
This duty to rescue is derived from the peculiar interpretation the Talmudic
rabbis gave to two biblical verses, thou shalt not stand idly by the blood
of thy neighbor (Leviticus 19:16), and thou shalt restore him [a
person who is losing his life] to himself (Deuteronomy 22:2). It obtains
even if the success of the rescue operation is in serious doubt from the onset
or cannot accomplish more than a brief prolongation of life.
Indeed, with the scriptural mandate clearly enunciated in the Talmud,
Jewish religious authorities – ethicists in the first instance – have during
the past eighteen-hundred years examined every aspect of the duty: its extent,
its applicability, and its enforceability, leaving us with a veritable heritage
of thought and concern re- garding this ethico-legal imperative.
Thus, the Maimonidean formulation of the Jewish law of the Good Samaritan
does not restrict the duty to rescue to outsiders witnessing or finding
a person in distress. It extends the duty to anyone informed or aware of the
danger to another’s life. The essential criterion is “if one person is able
to save another.” Ability is determined by a combination of factors: geographic
proximity, mental awareness, know-how and physical disposition. Nor does Jewish
law distinguish between a natural danger and a man-made one. An innocent
bystander is required to go to great personal effort, even to suffer hardships
and to incur serious financial loss, in order to save the life of his fellow.
On the other hand, he is not duty-bound to give his own life or limb to save
his fellow.
Moreover, the duty required by the scriptural commandment, lo ta‘amod
‘al dam re‘eka, is a general obligation. It is not based upon
any special relationship based on law contract between the bystander and the
person in distress, such as parent and child, husband and wife, guardian and
ward, guide and tourist, policeman, fireman, or lifeguard and public,
shipmaster and crew or passenger, master and servant, host and guest, etc.
(Rudzinski, 1996:92-93).[24]
Although the duty of the physician to his patient may be somewhat different in
this respect, the essence of lo ta‘amod remains a general human
one.
Again, although the innocent bystander who willfully fails to come to the
rescue of those in peril is, according to Jewish law, liable neither to civil
suit nor criminal prosecution, the duty of the Good Samaritan in Judaism may
not be relegated to the realm of mere religious morality and personal
conscience.
The legal nature of the duty of rescue is evidenced in a number of ways:
1. Although the
duty to rescue is independent of the financial condition of the person in
peril, the rescuer has the right to sue the person rescued for all financial
losses the former incurred as a result of the rescue operation.
2. The bystander
actively engaged in the rescue operation is exempt from all other positive
legal, civil, religious and ritual duties.
3. The rescuer
is immune from liability for any tort committed in the cause of his effort to
save the victim in peril. Not only may the rescued party not sue him (a
possibility in the present Anglo- American law!); no one whose property has
been destroyed may bring an action for tort against him.
In conclusion, three points arise for our careful consideration.
1. As a result
of the breakdown of the forceful role played by traditional religion in modern
life, the religious undertones ac- companying legal imperatives have lost their
power to encourage citizens to perform their duties without direct legal sanctions.
Has this radical transformation which society has undergone affected the
willingness and readiness of people to come to the rescue of those in distress?
Should religious authorities work for the introduction of positive criminal and
civil provisions[25] making for a
statutory duty to come to the rescue of one in peril?[26]
Of course, legislation of this type would be faced with such practical
difficulties as (a) establishing the degree of the bystander’s awareness of the
victim’s dangerous condition, (b) defining the degree of proximity between the
bystander and the victim (e.g., the only available surgeon is in one city and
the dying patient in another), (c) in the case of attempts at rescue that
aggravate a situation, distinguishing between an innocent, upright bystander
and an officious troublesome meddler, and similar anomalies. But legislation is
always faced with these kinds of difficulties. On the other hand, does the lack
of such legislation really signify that citizens are in fact callous to the plight
of those in peril? In other words, legislation, in order to be enforceable,
would in all likelihood be aimed at acts of indifference that are blatant and
reasonably easy to prove. But such instances of Bad Samaritanism are rather
rare; where they do occur, the adverse publicity and public scorn would
probably be potent educative as well as penal forces. Is legislation, then,
necessary? Would not the adoption of the provisions of Jewish law –
guaranteeing the Good Samaritan compensation for his losses, exemption from all
other duties that devolve upon him at the time, and immunity from tort
liability – be sufficient in putting society, as expressing itself in its legal
system, on record as creating a legal duty to rescue and as holding said duty
in the highest regard?
2. A second
question which modern religious authorities must face is the lacuna in
traditional law and society regarding the depen- dents of an innocent bystander
who dies or is disabled as a result of his rescue attempt. Traditional Jewish
society had established ways of caring for widows and orphans. Some welfare
states have their ways. Would it not be proper for religious leaders to press
for special provisions whereby the community would regard these dependents as
entitled to specific benefits?
3. Regarding
Good Samaritan behavior, a social psychologist makes the following remarks:
We don’t know whether there are differences between cultures, between
emergent societies and established societies, between cultures in which the
father dominates, those in which the mother dominates, or, as in our case, the
children dominate; between urban groups and rural groups, between religious,
God-intoxicated Bible Belts and agnostic, cocktail-intoxicated groves of
academe, even between the criminal and the conformist (Freedman, 1966:171).
Were the law to be a mere reflection of the behavior dominant in a given
society, psychiatric and sociological observations such as the one just quoted
would constitute the last word in the matter. Law, however, does help shape social
attitudes and personal be- havior.[27]
Indeed, religious law and ethical norms are built principally for such
purposes. Thus, Judaism, through its code of behavior, has been striving
continuously throughout its history to shape human conduct and to raise human
conduct to the highest ethical level possible. Ironically, though, just at a
time when Western society – as opposed to traditional Judaism – is experiencing
a strong movement to limit the role of law in intervening to enforce “morality”
(e.g., in questions involving abortion, adult homosexuality, or the use of
drugs), there is strong dissatisfaction with the (e.g., Anglo-American and
Israeli) legal indifference to the plight of the person in peril (cf. Sheleff,
1976:190-208).
It is our hope that the study of the Jewish law of the innocent bystander
– how the law places duties upon him, encourages him to fulfill them and
protects him as he discharges them – may serve as a positive contribution to
modern legal thinking.[28]
Research for this study
was made possible by grants from the Memorial Foundation for Jewish Culture and
the Israel Commission for Basic Research.
Note: Unless otherwise noted, the citations for the classical sources of Jewish law are taken from the standard editions.
The following
translations (with slight modifications) were used:
The Hebrew Bible: The
Holy Scriptures, Philadelphia: Jewish Pub- lication Society of
America, 1917.
The Talmud: Epstein,
Isadore (editor), The Babylonian Talmud, London: The Soncino Press,
1948.
Maimonides: Obermann,
Julian et al (editors), The Code of Maim- onides, New Haven and
London: Yale University Press, 1949.
All other translations
are by the author.
·
Barth, Alan. 1966. “The
Vanishing Samaritan.” pp. 159-69 in Ratcliffe (1966).
·
Cardozo, Benjamin. 1921. Wagner
v. International Railway Co., 232, NY 176.
·
Cahn, Edmund. 1959. The
Moral Decision: Right and Wrong in the Light of American Law. Bloomington:
Indiana University Press (A Midland Paperback).
·
Fellner, Carl H.;
Marshall, John R. 1970. “Kidney Donors.” pp. 269-281 in I. Macauley and L.
Berkovitz (editors). Altruism and Helping Behavior. New York and London:
Academic Press.
·
Freedman, Lawrence Z.
1966. “No Response to the Cry for Help.” pp. 171-182 in Ratcliffe (1966).
·
Graetz, Heinrich. 1908. Geschichte
der Juden. Vol. IV, 4th edition, edited by S. Horovitz. Leipzig: Oskar
Leiner.
·
Gregory, Charles O. 1966.
“The Good Samaritan and the Bad: the Anglo-American Law.” pp. 23-41 in
Ratcliffe.
·
Halevy, Isaac. 1918. Dorot
Harischonim: Die Geschichte und Literatur Israels (Hebrew). Frankfurt/M:
Louis Golde.
·
Heschel, Abraham Joshua.
1962. God in Search of Man: A Philosophy of Judaism. Philadelphia:
Jewish Publication Society of America.
·
Jacobs, Louis. 1957.
“Greater Love Hath No Man...the Jewish Point of View of Self-Sacrifice.” Judaism
6. Reprinted, pp. 175-183, in M. M. Kellner (editor), Contemporary Jewish
Ethics. New York: Sanhedrin Press, 1978.
·
Jakobovits, Immanuel.
1959. Jewish Medical Ethics. New York: Bloch.
·
Kirschenbaum, Aaron.
1976. “The ‘Good Samaritan’ and Jewish Law.” Dine Israel 7:7-85.
·
Lamm, Norman. 1972. “Kiddush
ha-shem and hillul ha-shem.” Encyclopedia Judaica. Jerusalem
and New York: Keter and Macmillan.
·
Prosser, W.L. 1971. The
Laws of Torts. 4th edition. St. Paul, Minn.: West.
·
Ratcliffe, J.M. editor.
1966. The Good Samaritan and the Law. Garden City, NY: Doubleday Anchor.
·
Rudzinski, Aleksander W.
1966. “The Duty to Rescue: a Comparative Analysis.” pp. 91-134 in Ratcliffe
(1966).
·
Sheleff, Leon (Shaskolsky).
1976. “Morality, Criminal Law and Politics.” Tel Aviv Studies in Law II:
190-228.
·
Sorokin, Pitrim A. 1954. The
Ways and Power of Love. Boston: Beacon Press.
·
——-. 1962. Social and
Cultural Dynamics. 4 Volumes. New York: Badminster Press.
·
Titmuss, Richard M. 1970.
The Gift Relationship: From Human Blood to Social Policy. London: George
Allen and Unwin.
·
Urbach, Ephraim E. 1971.
“‘Kol Ha’Meqayyem Nefesh Ahat...’ – Development of the Version,
Vicissitudes of Censorship, and Business Manipulations of Printers” (Hebrew) Tarbiz
40: 268-284 (with English summary).
·
Yadin, Uri. 1970. “The
Bad and the Good Samaritan” (Hebrew). Mishpatim 2: 252-267.
·
Yosef, Ovadia. 1976. “A
Responsum Permitting Kidney Trans- plants” (Hebrew). Dine Israel 7:
25-43.
Source: ASSIA
– Jewish Medical Ethics,
Vol. III, No. 2, September 1998, pp. 52-64
* Reprinted with
permission from The Journal of
Religious Ethics 8 (1980):
204-226. This article is a precis of a larger study, “The ‘Good Samaritan’ and
Jewish Law,” Dine Israel 7 (1976): 7-85.
1. “Presence” in all its possible meanings: physical proximity or various
degrees of knowledge and awareness with the concomitant ability to rescue the
victim or to ward off the danger.
2. Because they viewed
the suffix it as superfluous, the Tannaim interpreted it as meaning him,
and therefore understood the verse as commanding, and thou shalt restore him
[a person who is losing his life] to himself.
3. Numerous mss. and
early editions do not have the word “Israelite.” On the history and
significance of these variants see Urbach (1971:268-284).
4. “Thou shalt not
stand idly by means that thou shalt not hinder thyself. Rather go to any
extent necessary in order to save the life of the fellow” (italics provided
for the translation of hazor ‘al kol ha-zedadim) (Rashi, Sanhedrin
73a).
5. Rabbi Meir ben
Barukh, died 1293 (Responsa Maharam Rothenberg, IV:39) referring
specifically to a captive who is redeemed and then obligated to compensate his
rescuers for their expenditures on the ransom. The principle is then extended
to all who must be rescued under the scriptural law of thou shalt not stand
idly by, including a patient who refuses treatment; the physician is
obligated to treat him and may subsequently receive his fee (determined by the
courts or by the current rates) despite the protestations of the patient; Rabbi
J. Engel, died 1920 (Gilyonei Hashas, Sanhedrin 73a).
6. Kefoel batel,
“as an unemployed laborer,” the definition of which is the subject of extended
discussion; for a digest of the opinions involved in this definition, see Talmudic
Encyclopedia (Hebrew), XI, “Hashavaht Avedah,” pp. 82-84.
7. Full compensation
for losses sustained by the rescuer in the absence of court permission or in
the absence of explicit warranty by the rescued party when circumstances of
speed and anxiety preclude the possibility of making such warranty is also
evident from Rosh (Bava Mezia 2:28).
8. The obligatio
of the rescued party to reimburse his rescuer for his labor and expenditures,
as that of an owner of a lost object to reimburse the one who found and
returned it to him, is, in all probability, that of an implied contract of
labor. (See further Bava Mezia 101a and Maimonides Torts
[“Robbery and Lost Objects” 10:4] for the rabbinic analogue to negotiorum
gestio.) Such contracts in Jewish law do not cover disabilities of the
laborer incurred in the course of his employment.
9. This ruling
is derived a fortiori from the case of an unsuccessful attempt to salvage
someone’s property (see Bava Kama 116a [bot.]).
11. In other
words, the whole purpose of the obligation, thou shalt not stand idly by,
is the preservation of life. If its fulfillment can be accomplished only at the
sacrifice of life (of the would-be rescuer), then its purpose has been
undermined and frustrated. Under such circumstances the obligation falls away.
12. What is the
status of the citizen who, above and beyond the call of duty as defined by
rabbinic law, elects to give his life to save another’s? The question arose in
Jewish history with regard to martyrdom for any reason other than those
prescribed by religious law, namely the avoidance of idolatry, or incest and
adultery, or of murder. Maimonides (Knowledge, “Fundamentals of the
Law,” 5:4) considered such self-sacrifice as sinful; the Tosafot (Avodah
Zarah 27b, s.v. yakhol, at end) regarded it as meritorious. “The
Ashkenazi Talmudists were instinctual rather than rationalistic in their
attitude to martyrdom – an attitude characteristic of most medieval German
Jewry. The Tosafists reacted negatively to the problem as it is viewed in the
halacha. They recoiled – ‘Heaven forbid!’ – from such formal halachic reasoning
that does require martyrdom of a person forced to worship an idol in private,
and they demanded obligatory Kiddush Ha-Shem (Tosafot Avodah
Zarah 54a)” (Lamm, 1972; cf. Jacobs, 1957).
13. Regarding
the hero of the New Testament story (Luke 10:30-37), it has been aptly pointed
out “that the original Good Samaritan extolled by St. Luke was fortunate in not
arriving on the scene until after the thieves had set upon the traveler, robbed
him and beaten him half to death. The Samaritan cared for him and showed him
great kindness, but he did not put himself in any peril by doing so. Perhaps
this is about as much as can be reasonably asked of the ordinary mortal man”
(Barth, 1966:163).
14. Allusion is
being made to the following Talmudic passages: “[Rabbi Joshua] used to say: A
foolish saint... brings destruction upon the world. What is a foolish saint
like? E.g., a woman is drowning in the river, and he says, ‘It is improper for
me to look upon her and rescue her’” (Sotah 21b on Mishna Sotah
3:4).
15. Middat
hasidut is a Talmudic expression (e.g., Hullin 130b). It is usually
translated “a saintly act,” “saintly conduct” – the connotation being that the
extraordinarily pious act is evidence that the one who performed it is of
saintly character. A few years ago, a team of psychiatrists undertook to study
donors in renal homotransplantations to find out how they had become involved,
how they had made their decisions, what surgery had meant to them, and how they
had fared emotionally and psychiatrically about a year (on the average)
thereafter. Among their findings was, I believe, a new dimension in middat
hasidut. During the immediate postoperative period, usually a month or two,
the donors received a good deal of attention from families, friends, even
strangers who had heard of their sacrifice. Soon thereafter, after they ceased
to be celebrities, they noted certain changes in their attitudes or ideas of
themselves which they considered more lasting. A typical example is the
statement of a forty-year-old male donor, four weeks post-operatively: “I feel
better, kind of noble. I am changed, I have passed a milestone in my life, more
confidence, self-esteem... In every way I am better. For realizing how far I
could go for others, I am up a notch in life... I value things more, big and
small things... I come in contact with others a bit more. My pleasures are
bigger and have more meaning.” Another representative quotation, this time of a
fifty-nine-year-old female donor, eighteen months postoperatively: “I am a
better person for having done it, more understanding, not nearly as critical. I
have improved in many ways, even am more respectful of myself as a person. I
feel, if I can do this, I can do anything” (Fellner and Marshall,
1970:269-281). Viewed in this dimension, middat hasidut should be
translated (in the words of Sorokin) as “creative altruism” – “creative” in the
sense that the self is realized with the help of others, for the biological
need to help is fulfilled by the very act of altruism (Titmuss, 1970:212; see
also, Sorokin, 1954). Making provisions for expressions which characterize the
modes of thinking of our secular society, we perceive middat hasidut as
conduct which sometimes engenders and nurtures saintliness, rather than conduct
which reflects and evidences it. This perception of middat hasidut would
be in line with the doctrine popular among the medieval moralists according to
which inner disposition is very often created or conditioned by one’s external
actions, and not vice versa.
16. “...And it
goes without saying that one is obligated to undergo all sorts of suffering if thereby
his fellow’s life is spared or saved” (Rabbi Abraham Gombiner, died ca. 1683, Magen
Avraham, Orah Haim 126). All suffering short of actual torture is probably meant (Rabbi
Eliezer Y. Waldenberg, 20th century, Responsa Tsits Eliezer: IX, 9a).
17. He whose
perverted sense of values leads him to forget this basic rule can never be more
than “a foolish saint”; see above.
18. Maimonides’
formulation is a rewording of a dictum of Rabbah, or his disciple Rava (textual
readings vary; cf. Tosafot, Ketubot 30b, s.v. rav ashi),
both prominent rabbis of fourth-century Babylonia; the dictum is found in Bava
Kama (117b) and Sanhedrin (74a).
19. For if, as
we have seen, one may not save himself by destroying or by appropriating
another’s property, it follows a fortiori that one may not save others by such
measures.
20. The solution, of course, is
eminently sensible; and really much ado should not be made of it. See the
similar provisions of the Czechoslovak Civil Code of 1964 and of the Civil Code
of the Republic of China, in its General Principles of 1929 (both cited by
Rudzinski, 1966: 117-119). I should like, however, to contrast this premedieval
dictum with the Anglo-American law of today. In an article entitled, “The Good
Samaritan and the Bad,” Professor Gregory (1966:28) of the University of
Virginia Law School, puts it bluntly: “Our law says [he declares] that you do
not have to volunteer to relieve others from danger not due to your own fault;
but if you do volunteer – if you engage in some activity that is followed
by harm to such another – then a court may let a jury scrutinize what you did
and call it actionable negligence – no matter how hard you tried
[italics provided]. Many people aware of this think it much wiser to do nothing
at all. If you are not under a duty to “fease,” the nonfeasance can never be
held actionable. But if you do engage in feasance toward anybody, then under
most circumstances you must “fease” carefully. Moral: Don’t ever “fease” unless
you have to!”
Israeli law is not much better. (Cf. Yadin, 1970:260-262).
Professor Gregory is not very proud of his legal system. In a footnote he
writes, “Of course, I do not want to be understood as advising people never to
help others who are in danger or distress.” He does not; but the law implicitly
does. See also Prosser (1971:340-343) who correctly attributes this serious
lacuna to the general Anglo-American reluctance to countenance nonfeasance as
the basis of any liability. I might add that, technically speaking, the Good
Samaritan, duty-bound to come to the rescue of his fellow, is exempt from
liability for the objects he broke whether they belonged to the pursued or to
any other person.
21. Although the
primary source (Ketubot 86a) ordains said coercion for the fulfillment
of positive commandments, it is evident from Tosafot (s.v.
akhpie, Ketubot 49b and Bava Batra 8b) that the commandment thou
shalt not stand idly by would also be subject to coercion (1) either
because it is a commandment – albeit formulated negatively – to do something
positively or (2) because the supplementary commandment, thou shalt restore
him to himself (see above), informs thou shalt not stand idly by
with positive characteristics – similar to the commandments of zedakah
cited by Tosafot. Some authorities maintain that there is no distinction
between positive and negative duties; all duties may be enforced by coercion
(Rabbi Pinhas Horowitz, died 1805, Sefer Hafla’ah, and Rabbi Akiva Eger,
died 1837, Novellae, both on Ketubot 49b). Other authorities,
however, maintain that coercion to perform positive commandments is the
exclusive prerogative of the courts and may be carried out in the extreme,
whereas the physical prevention of the violation of the negative commandments
is the duty of any private citizen but may not be carried out in the extreme
(Rabbi Aryeh Leib Heller, d. 1813, Meshovev Netivot 3:1, paragraph 3).
24. To
Rudzinski’s list, we might add the comrade relationship in the Israeli Defense
Forces which had become well-nigh legendary. Israeli army solidarity dictated
that in and after any battle, raid or skirmish, no soldier – dead or wounded,
known or unknown to his rescuer – was left in the field. It is a known fact that
soldiers retrieved their comrades often at great personal risk. One of the
traumas of the Yom Kippur War was the weakening of this quasilegal obligation.
25. The
Portuguese provision regarding the duty to rescue, for example, is unusual in
that it appears in a civil code, and “the failure to come to the aid of
the attacked results in liability for damages (sera possible de dommages
interets)” (Rudzinski, 1966:99).
26. Cf.
Rudzinski (1966:119-124): “Is the introduction of such a legal duty desirable?”
The proposal refers to ethicolegal provisions of the halacha; there is no
intention, of course, to foster the legislation of its moral provisions (middat
hasidut).