The interaction between law and morality in Jewish law in the areas of feticide and killing a terminally ill individual.
The Bible stipulates that the killer of a fetus is not liable to the death penalty, and excludes a fetus from the category of legal persons for the purposes of the criminal law. Indeed, the sole consequence of fetus destruction would appear to be the obligation to pay compensation to the husband of the woman whose fetus was destroyed.(7) It is interesting to note that both the Greek and Latin translations of the Bible read the passage in question somewhat differently, with the result that the destruction of a "formed" fetus does, in fact, constitute an act of homicide for which the perpetrator is liable to the death penalty. A possible explanation for this divergence is that the translations were influenced by Greek thinking on feticide and abortion in which the distinction between the "formed" and the "unformed" fetus is a significant one.(1) An exposition of the historical background to this difference between the various versions of the Bible and the divergent paths taken by the Jewish, Christian, and Common Law traditions in this field is clearly beyond the scope of the present article.(9) In analytical terms, however, it is important to note that the Rabbinic tradition does not accept that the stages of fetal development are definitive in the determination of the legality of abortion, especially in the therapeutic context.(10) Although halakhic literature refers to both a forty-day stage and to the first trimester, these stages of development are used only as secondary arguments in cases involving indirect threats to the mother's life.(11) The purely biological issue of fetal formation is not of primary legal relevance in the halakhic tradition relating to questions of feticide and abortion.(12)
The non-personhood of the fetus in the criminal law provides a firm basis for therapeutic abortion. According to the Mishnah, the mother's life takes precedence over that of her fetus until birth. Once this stage has passed, the "life of one person does not override that of another."(13) Clearly, the Mishnah excludes a fetus from the category of legal persons, and this exclusion is cited by the majority of commentators as the reason for mandating therapeutic abortion in Jewish law.(11) Fetal non-personhood also serves as the starting point for a liberal approach to the limits of therapeutic abortion in Jewish law. A striking illustration of the way in which a liberal approach to abortion is anchored in the criminal law notion of fetal non-personhood is a relatively recent decision by R. Eliezer Judah Waidenburg permitting the abortion of a Tay-Sachs fetus until the seventh month of pregnancy.(15)
It is, however, precisely at the point at which the limits of therapeutic abortion begin to become blurred that the tension between the doctrine of fetal nonpersonhood and rational morality begins to manifest itself. This tension is highlighted in a responsum of R. Jair Hayyim Bachrach, a seventeenth-century authority, in relation to the abortion of a fetus conceived by an adulteress.(16) In the course of his responsum, R. Bachrach observes that under strict Torah law the abortion would not involve the breach of any formal prohibition whatsoever. The only grounds for forbidding the abortion would be "universal moral policy which outlawed abortion in such circumstances in order to prevent the spread of promiscuity." Now R. Bachrach does, in fact, proceed to derive a formal prohibition on feticide from the general obligation in Jewish law to populate the world.(17) This argument, however, is rather weak since it is based upon a positive obligation rather than a negative one. Also, the obligation to populate the world is directed primarily at men, not women.(18) The relevant point, however, is R. Bachrach's remark concerning the total absence of any Torah law against feticide and his citation of universal morality as a basis for ruling negatively in the case of the adulterous woman.
Rabbinic authorities have dealt with this tension in various ways. Some have adopted the approach exemplified by R. Bachrach and sought a formal basis for prohibiting feticide in existing halakhah. Their suggestions include assault(19) and the notion of potential life.(20) Others have simply indicated the existence of the tension and left the matter there. This was the position adopted by R. Jehiel Jacob Weinberg, a twentieth-century, authority, in a responsum on the question of aborting the fetus of a woman suffering from German measles. In two places in the responsum, R. Weinberg states that feticide is undoubtedly forbidden but we do not know the nature of the offense.(21)
The most compelling argument for limiting the scope of the criminal law doctrine of fetal non-personhood is undoubtedly that of the medieval glossators on the Talmud, known as the Tosafot. According to these authorities, feticide is "not permitted"(22) because it constitutes a contravention of the Noahide prohibition on bloodshed.(23) The Jewish legal tradition contains a body of laws known as the Noahide laws which pre-date the giving of the Torah on Mount Sinai.(24) These laws define the offense of bloodshed in a much broader fashion than homicide in the halakhah, both procedurally and in terms of substance, and treat feticide as a capital offense,(25) The Noahide system has been perceived as the legal foundation for the existence of all civilized societies, and its laws may be derived not only from-divine revelation but also from human reason.(26) The Noahide condemnation of feticide, therefore, constitutes a formal source for outlawing non-therapeutic abortion in the Jewish legal tradition.
The relationship between the Noahide laws and positive post-Sinaitic halakhah is a complex issue.(27) The Talmud rules that "there is nothing permitted to an Israelite yet prohibited to a Noahide,"(28) and a good illustration of the operation of this principle in the context of bloodshed is the argument in the Midrash Halakhah that although an Israelite who kills a non-Jew is exempt from capital punishment, the act is still an offense against the Noahide laws, and on those grounds alone, is forbidden to an Israelite.(29) In this respect, the Noahide offense of bloodshed provides a moral threshold below which positive halakhah cannot be allowed to fall.(230) This line of argument is used by Tosafot to forbid feticide, notwithstanding the absence of any formal prohibition on it. As far as penalties are concerned, it is noteworthy that according to one authority, non-therapeutic feticide carries the same sanction as other acts of bloodshed proscribed by Noahide law and absorbed into positive halakhah, that is, death at the hands of Heaven.(31)
The reason for the wide acceptance of Tosafot's approach is undoubtedly the fact that it avoids forcing feticide into an existing legal category to which it obviously does not belong. The line of reasoning from the Noahide laws used by Tosafot is explicated in greater detail and with many more shades of meaning in the section following, which deals with the killing of a terminally ill individual. It is, however, necessary to refer to Maimonides' approach to the issue of therapeutic abortion before concluding the present discussion.
Moses Maimonides, the outstanding medieval jurist and philosopher, adopts a unique approach to the Mishnaic ruling with regard to therapeutic abortion. According to Maimonides, the basis for this ruling is the pursuer principle, namely, if someone is pursuing another person with clear intent to kill him, then the former must be prevented from carrying out his evil design, even at the expense of his life.(32) The life of the pursuer is forfeit, however, only if there is no other way of saving the pursued person. Maimonides compares a fetus threatening its mother's life to a pursuer and justifies therapeutic abortion prior to birth on that basis.33 This approach, however, is fraught with difficulties. First, its explanatory power is extremely limited by the fact that Maimonides retains the cut-off point of birth with respect to the halakhic treatment of therapeutic abortion. The pursuer principle applies to bom persons, and if it really did constitute the basis for permitting the abortion, then there is no reason for limiting therapeutic feticide to the period prior to birth. Obviously, it is the doctrine of fetal non-personhood and not the pursuer principle that provides the real basis for therapeutic abortion. Secondly, the fetus lacks the element of evil intent which is vital to the fullblown pursuer doctrine in Jewish law. Indeed, it is precisely for this reason that the Talmud rejects the application of the pursuer principle to therapeutic abortion situations.(34) The resolution of these difficulties has exercised many commentators, and the consensus would appear to be that Maimonides was making only a weak analogy to the pursuer principle, and his main concern was to limit the scope of therapeutic abortion to direct threats to maternal life.(35) A pursuer can be killed only if there is no other way of saving the pursued person's life. Similarly, the fetus may be killed only if its continued existence constitutes a direct and immediate threat to the life of its mother. It is in this form that Maimonides' formulation is used by halakhic authorities to justify strict decisions in cases in which there is no direct threat on the part of the fetus.(36)
The question that arises is Maimonides' motivation for introducing this rather tenuous form of the pursuer. principle into the halakhah on abortion when there is a clear and uncomplicated alternative, namely, the doctrine of fetal non-personhood. The answer may be that Maimonides was, in fact, exercised by the same tension as the Tosafot and his use of the pursuer principle is an attempt to defuse that tension by limiting the effect of the non-personhood doctrine to direct threats to maternal life. There is also an argument made in the Jerusalem Talmud for applying the pursuer idea to the fetus--notwithstanding the absence of the element of intention--and Maimonides may have had this source in mind even though the argument made there is eventually rejected on different grounds.(37) The precise reason behind Maimonides' treatment is not known, but the suggestion that it is similar to the approach adopted by Tosafot would fit in well with the thesis outlined in the following section.
Killing a Terminally Ill Individual
According to the Talmud there is no capital punishment for killing a person suffering from a fatal condition.(38) This rule is based upon the non-viability of the victim since capital punishment is administered only for the killing of a viable individual.(39) In the language of the commentators on the Talmud, the killer in this case has murdered someone who is "already dead."(40) Maimonides provides that killing such a person is a capital crime under the Noahide offense of bloodshed.(41) Once again, there is a tension between the criminal law and the demands of rational morality. The general trend in Rabbinic jurisprudence is to drive a wedge between the penal and the normative aspects of the killer's exemption and to restrict the scope of the exemption to the former aspect. In his formulation of the exemption, Maimonides indicates quite clearly that, its scope is limited to the death penalty "at the hands of the court."(42) Divine punishment still awaits the killer in such a case. Maimonides also invokes the special jurisdiction of the court to act outside the normal rules of procedure and evidence in relation to "these and similar killers who are not subject to being condemned to die by verdict of the court."(43) The king is also empowered to put such killers to death "if the exigency of the hour demands it .. . in order to ensure the stability of the social order."(44) The Maimonidean monarch possesses wide powers with respect to the preservation of society, especially with regard to the offense of bloodshed which Maimonides regards as the gravest threat to civilized life.(45) Commentators on Maimonides have emphasized the existence of a link between the monarch's powers in this area and the Noahide laws in their role as the moral baseline of Jewish law. According to R. Meir Simha of Dvinsk, a late eighteenth-century commentator on Maimonides' code, the king's authority in cases such as these stems from "his role as the preserver of the social order," the definition of which is provided by "the Noahide laws, and this is a rational principle."(46) Other commentators extend the Israelite king's powers to offenses other than bloodshed, for example, sexual crimes and protection of property.(47)
It has already been pointed out that R. Meir Simha applies such reasoning to non-therapeutic feticide and concludes that it also carries Divine and discretionary penalties. Feticide is also a capital crime in the Noahide system, and it is this fact that underlies the prohibition of non-therapeutic abortion in positive halakhah. It follows from this that feticide, too, should bear both Divine and discretionary punishments in situations in which it has no halakhic mandate.(48) The majority of authorities, however, are wary of equating feticide with homicide, even on the level of these extraordinary sanctions, and choose merely to emphasize the forbidden nature of the act without specifying any penalty whatsoever. This is in line with the approach ot the Tosafot the terminology of which indicates the existence of an offense but with no punishment attached.(49)
R. Meir Simha's model of the Noahide laws as the basis for the Divine and discretionary punishments applicable to the killer of a terminally ill person is, in fact, implicit in Maimonides' formulation of the law relating to Divine and discretionary punishments.(50) The proof texts used by Maimonides to justify these sanctions in the case of killers exempt from capital punishment are all drawn from the Biblical passage recounting God's covenant with Noah following the Deluge.(51) In this passage, the offense of bloodshed is made punishable by death, at the hands of both man and God.(52) It seems clear, therefore, that Maimonides himself sought to base the king's corrective role upon the Noahide laws, especially in relation to bloodshed.(53) In this context it is noteworthy that Maimonides saw a very close link between the prevention of bloodshed and the preservation of society. That link is described in the following striking passage in his code of law:
For although there are worse crimes than bloodshed(54) none causes such destruction to civilized society as bloodshed. Not even idolatry, nor immorality, nor the desecration of the sabbath is the equal of bloodshed.(55)
The notion of the preservation of civilized society provides Maimonides with a justification for the fact that homicide is the only offense in Jewish law for which a person may be executed even though he is exempt from capital punishment under positive law. The conceptual link between rational morality, that is, the preservation of society, which is the fundamental feature of the Noahide offense of bloodshed, and the king's corrective powers with respect to the limitations of Jewish criminal law is therefore a major theme in Maimonides' criminal jurisprudence.
Maimonides' powerful hint that absolutely no practical implications may be drawn from the exemption of the killer of a terminally ill person from the death penalty has been taken seriously by halakhic authorities dealing with the treatment of terminal patients in modern medicine. R. Moses Feinstein ruled that, the exemption notwithstanding, terminating the treatment of a terminally ill patient constituted a prohibited act in Jewish law, since "Maimonides has explicitly stated that such a killer is liable to Divine punishment in addition to having committed a transgression." Another modem North American authority, R. Isaac Leibes, dismisses the notion that the exemption ought to play any role in making termination of treatment decisions in cases involving terminally ill patients any easier "since there is no difference between death at the hands of Heaven and capital punishment. In both cases the killer is called a murderer, as Maimonides wrote in his Laws of Homicide.(57)
Monarchial Corrective Criminal Jurisdiction in Jewish and Islamic Law
An interesting development of Maimonides' theory of the king's role in preserving society by working outside the positive provisions of the criminal law is found in the writings of R. Nissim of Gerona, who lived in fourteenth-century Spain.(58) According to R. Nissim, the positive provisions of Jewish criminal law apply only in a highly moral society in which bloodshed is an extremely rare occurrence. Once murderers become rife in the land, then positive Jewish criminal law is shelved, and the Israelite king dispenses justice based on rational morality with a view to preserving civilized society.(59) It is, in fact, arguable that according to R. Nissim, all matters affecting the welfare of society fall within the royal jurisdiction, and the laws of the Torah apply only to cases arising between individuals.(60) R. Nissim's approach is rather extreme, but it highlights the problem of the enforcement of Torah laws that do not conform to the very basic needs of civilized society. R. Nissim's solution owes much to Maimonides' approach to the treatment of killers exempt from capital punishment at the hands of the court.
In this context it is noteworthy that Islamic jurisprudence uses the monarch for a very similar purpose with respect to the provisions of shari'a law, especially its criminal portions.(61) From the eleventh century onwards, it was a recognized part of Islamic legal doctrine that the ruler was empowered to take such steps as he deemed necessary for the sake of implementing the general, as opposed to the specific, provisions of the law. Indeed, in Islamic political theory the ruler is referred to as the "heart" of his people precisely for this reason.(62) Part of the monarch's role in enforcing what became known as siyasa shari'a, that is, "government in accordance with the revealed law," was the meting out of discretionary punishment in cases where the guilty party was exempt as a result of the strict laws of evidence in the shari'a.(63) The parallel between the king's role in Maimonides and R. Nissim, on the one hand, and classical Islamic jurisprudence, on the other, is an interesting one and invites further research. Irrespective of the comparative aspect, however, the doctrine of siyasa shari'a provides another illustration of the process by which the tension between positive law and rational morality is resolved at the institutional level in a religious legal system based upon Divine revelation.
Sacrificing a Terminally Ill Person for the Sake of Saving a Viable One
The picture which is now beginning to emerge is one in which the original criminal law principles governing both feticide and the killing of a terminally ill individual have been overshadowed by a complex and sophisticated system of theoretical and institutional mechanisms designed to deprive them of any practical significance. This process is particularly evident in the case of the terminally ill murder victim. It is less clear in relation to feticide since the criminal law principle of fetal non-personhood is still very much a part of liberal decisions in cases involving indirect threats to fetal life, for example, Tay-Sachs and Down Syndrome.(64) However, even in the case of the terminally ill victim, there are circumstances in which it is arguable that the exemption of the killer from capital punishment should play an active role and function as a source for justifying the sacrifice--indirectly, of course--of thoterminally ill person's life. The complete picture, therefore, is one of interaction of law and morality, and it is to a description of how this interaction takes place with respect to the killing of a terminally ill person that the present section is devoted.
It is a fundamental principle of Jewish law that one life may not be sacrificed for the sake of another.(65) If a person is confronted with a choice between being killed and surviving at the cost of taking a human life, then the correct course is to choose death.(66) If the lives of a whole group are at stake, however, then the matter is not so simple. The Tosefta(67) deals with a case of a whole group threatened with certain death unless one of their number is handed over to be slaughtered. According to the Tosefta, if the victim is specified by those doing the threatening, then he or she may be sacrificed in order to save the whole group. A qualification is then added to this provision, namely, that the person concerned must also be guilty of a serious crime. This qualification is codified by Maimonides and later authorities.(68) It is not universally accepted, however, and other authorities do not incorporate the crime requirement into the specification rule.(69) The basis for the specification principle is in the Bible,(70) and its moral justification presumably lies in the fact that the victim was selected by an external cause and not by the members of the group.
What would the position be if one of the group members was a terminally ill individual? R. Menahem Meiri, a thirteenth-century Talmud commentator, writes as follows:
It goes without saying that in the case of a group, if one of them was suffering from a fatal illness he may be surrendered in order to save the lives of the rest since his killer is in any case, exempt from the death penalty.(71)
According to R. Meiri, it is the exemption from capital punishment which provides the basis for sacrificing the terminally ill person in order to save the group. Presumably, it functions as a type of specification in terms of the principle laid down by the Tosefta. R. Meiri's position is endorsed by other authorities, who explain that the non-viability of the terminally ill person removes him or her from the category of those whose lives are protected by the criminal law.(72)
R. Ezekiel Landau, a prominent eighteenth-century Bohemian authority, challenged this position and claimed that exemption from capital punishment in no way justifies any positive act involving the taking of life. According to R. Landau, the correct course of action in cases of conflicting claims is to "sit and do nothing" rather than to become involved in any type of killing.(73) The context of R. Landau's remarks, however, is that of feticide, and it is possible that he would accept a distinction between active killing--as in the case of feticide--and a passive course of action, such as the handing over of a terminally ill person in order to save a whole group.(74)
In any case, R. Meiri's position indicates that where it is morally justified, that is, where there is an external cause, then exemption from capital punishment becomes a relevant factor in choosing one life over another. That position assumed practical significance in the debate over the halakhic permissibility of heart transplants, and it was cited as a possible argument in favor of permitting the transplant since the donor was terminally ill and the donee was potentially viable.(75) In 1987 the Israeli Chief Rabbinate outlined the circumstances under which it was prepared to permit cardiac transplants, and although the major grounds for the decision were the high success rate of the operation and the acceptance of brain death, the notion that the killer of a terminally ill person is exempt from the death penalty did play a part in defining the clinical definition of potential donees.(76)
An interesting parallel to the foregoing discussion is the question of the necessity plea in English criminal law. This question arose in a fairly dramatic form in the celebrated case of R. v. Dudley and Stephens (1884) 14 QBD 273. In this case, two mariners who had been shipwrecked together with a cabin boy were charged with the murder of the latter whom they had killed and eaten in order to survive. During that period there was a so-called "custom of the sea" according to which the sailors were meant to draw lots in such situations, and the man who was selected by this process would give up his life for the sake of the rest.(77) The Biblical precedent used in order to justify that custom was the prophet Jonah. In the present case, there was a move to stamp out this custom, and the court tried the sailors on a murder charge and found them guilty. The mandatory sentence was death. The court rejected the seamen's plea of necessity and refused to recognize a principle of "human jettison."(78) The interesting point, however, is that in practice the plea was recognized, because the death sentence was commuted to six months' imprisonment, which Dudley and Stephens had already served prior to their trial. The tension between the demands of criminal jurisprudence, which refused to prefer one life over another in any situation whatsoever, and the rational argument in favor of survival, especially when there was an external cause present, was resolved using the mechanism of executive clemency. In the light of this and other cases, it has been argued that the real position of English Common law on the necessity plea in a criminal trial is as follows:
When, however, all is said and done, probably the most persistent English attitude to the problem raised by the necessity plea--intellectually unsatisfying though it may be--is that hard cases are best dealt with by the prerogative of mercy.(79)
Both Jewish and Common law, therefore, recognize certain situations in which it is justifiable to balance one life against another. The difference between the two systems lies in the strategies they adopt for dealing with those situations. Jewish law applies its richly textured casuistic tradition in order to produce an internal solution. The Common law uses the executive branch in order to achieve the same purpose.(80)
Returning to the main theme of this section, it is evident that the exemption of the killer of a terminally ill individual from capital punishment is not a dead letter and assumes practical significance in hard cases of the type described above. In this context, it is noteworthy that the idea of balancing lives and choosing between them was applied during the Holocaust period, when rabbis were consulted with respect to situations very similar to those dealt with in the Tosefta and by R. Meiri.(81) It is also evident that the idea arises in contemporary biomedical law, for example, in the cardiac transplant issue. The relevance of the criminal law doctrine of fetal non-personhood is clear enough and has never really disappeared from the scene in Jewish abortion law. As the limits of therapeutic abortion become more blurred, for example, in Tay-Sachs and Down Syndrome, the relevance of this doctrine becomes even clearer.(82) It may therefore be stated--with confidence, we believe--that law and morality do, in fact, interact in Jewish law in the areas of feticide and killing a terminally ill individual.
Abortion and the treatment of the terminally ill are richly textured and dynamic areas of Jewish law in contemporary times, as a result of the dialectical nature of that system and its long history of casuistic reasoning. Undoubtedly, this is a result of the tension in both of these areas between law and morality, which has been explicated at length above. The dialectic nature of the halakhic approach may provide a model for other systems in this area, especially since the methodological problems besetting contemporary biomedical law are by no means insignificant.(83) An interesting feature of the halakhic approach to the above-mentioned tension is the development of discretionary mechanisms for dealing with it outside of the regular judicial process. This may also be an arrangement worthy of consideration by other systems since the application of routine legal proceedings to delicate and complex bioethical issues is not always wise or fruitful.(84)
(1) In this paper, the term rational morality isused to indicate principles which function within the halakhah but originate in the Noahide laws, and in the Israelite king's authority to preserve civilized society. Both of these rubrics are fully explained in the body of the article. The major analytical features of these principles are their rationality and their universality. A prime example is the prohibition on bloodshed. Other examples are sexual crimes and theft. (2) Such an individual--known as a terefah in Hebrew--is defined by Maimonides as follows: "It is known for certain that he has a fatal organic disease and physicians say that his disease is incurable by human agency" (Laws OF Homicide 2:8). The medical aspect of this definition is reiterated by R. Moses Feinstein, Resp. Iggrot Moshe, Hoshen Mishpat 2 no. 73:4. The application of the terefah category to any internal disease is supported by R. Hayyim Oser Grodzinski, Resp. Ahiezer, Yoreh Deah no.16:6. It is presumed--although this presumption is not absolute--at this type of person will die within twelve months: see D. Sinclair, Tradition and the Biological Revolution 19-22 (1989). (3) See, infra, notes 7, 13-15. (4) See, infra, notes 38-41. (5) Cohn, Capital Punishment, in The Principles of Jewish Law 526 (M. Elon ed. 1974). (6) The term halakhah refers to the body of legal doctrine developed by scholars of Jewish law throughout the ages, and in the context of the present article, is entirely synonymous with the term "Jewish law." The adjectival form is "halakhic," and this is the preferred term for indicating issues of a methodological, as opposed to a purely substantive, nature. The methodology of Jewish law is rich, complex, and different in many ways from that of modern secular legal systems. Methodological issues are therefore generally indicated by the internal term "halakhic" in order to emphasize the differences between traditional Jewish law and modern secular systems in this context. A useful introductory work is Z. Hayyes, The Student's Guide Through the Talmud, chs. 1-16 (J. Shachter trans. 1960) chaps. 1-16. (7) Exodus 21:22-23. See Sinclair, The Legal Basis for the Prohibition on Abortion in Jewish Law, 15 Israel L. Rev. 110-12 (1980). (8) Sinclair, id. at 116-19. (9) Id. at 128-30. (10) A good example is the dispute between R. Eliezer Judah Waldenburg. (Resp. Ziz Eliezer 13 no.102; 14 no. 100) and R. Moses Feinstein (Resp. Iggrot Moshe, Hoshen Mishpat 2 no.69) regarding the abortion of a fetus stricken with Tay-Sachs disease. R. Waldenburg permits the abortion until the seventh month and R. Feinstein forbids it at any stage of pregnancy. (11) Resp. Havat Jair no. 31. See R..J. David Bleich, Contemporary Halakhic Problems 339-47 (1977). (12) The Talmud discusses the moment at which the animating soul enters the body of the fetus and concludes that it takes place at the time of conception (Sanhedrin 91b). No reference to this discussion, however, is to be found in any of the legal responsa on abortion. Clearly, the definition of personhood in abortion law is a very specific one, the sole significance of which is in the area of the criminal law. This definition is not related to that of the biological development of the fetus, or to the definition of its immortal soul: see Bleich, Fetal Tissue Resear ch, 24 Tradition 69-71 (1989). (13) M. Oholoth 7:6. (14) Rashi, Sanhedrin 72b; Ramban, Niddah 24b; Yad Remah, Sanhedrin, 57a, 72b; Resp. Radbaz Mikhtav Yad no. 22; Resp. Seridei Esh 3 no. 127. (15) See Sinclair, supra note 2, at 93ff. (16) Resp. Havat Jair no.31. The child of an adulterous union is a mamzer who is barred from marrying another Jew: See The principles of Jewish Law (n.5) 435-38. The birth of such a child is likely to to cause much distress to the mother and there are several cases on the question of aborting a mamzer fetus in the Responsa literature: see Resp. Sheelat Yaavez no. 43; Resp. Rav Paalim, Even Haezer no.4; Resp. Mishpetei Ouziel, Hoshen Mishpat no. 46. (17) Isaiah 45:18. R. Bachrach argues that feticide is included in the prohibition on onanism (Niddah 13b) but this argument is criticized by R. Jacob Emden (Resp. Sheelat Yaavez no. 43) on the grounds that no form of therapeutic abortion can be classified as "destruction of seed". Also, the legal pedigree of onanism is a matter of debate: see D. Feldman, Marital Relations, Birth Control and Abortion in Jewish Law 144ff. (1974). (18) Resp. Seridei Esh 3 no. 127. See also Bleich, supra note 11, at 334-36. (19) Resp. Maharit no. 97. Since there is some doubt as to whether or not the prohibition on assault applies to a fetus (Resp. Koah Shor no. 20), it is possible that the offense is, in fact, committed against the mother (Resp. Aeyeh Debie Ilai, Yoreh Deah no. 6). See Bleich, Supra note 11, at 333 n.24. (20) Resp. Torat Hesed no. 31; Pesp. Mishpetei, Ouziel, Hoshen Mishpat no. 46; R. Isser Judah Unterman, Shevet Miyehudah 362. (21) Resp. Seridei Esh 3 no. 127. (22) The phrase used by Tosafot is lo shari which indicates a weaker basis for the prohibition than if the normal word for prohibited, i.e., asur, had been used; cf. Roth, Moralization and Demoralization in Jewish Ethics, 11 Judaism 294 (1962) in which a similar point is made with regard to another phrase used by the Rabbis to indicate that something is forbidden, even though there is no formal basis for any such prohibition. (23) Sanhedrin 59a, s.v. leka; Hullin 33a, s.v. ehad. (24) There are seven main laws namely, the offenses of idolatry, blasphemy, bloodshed, forbidden sexual ralations, theft, tearing a limb from a living animal, and the positive obligation to set up a system of justice (Sanhedrin 67a). According to Rabbinic tradition, six of these laws were given to Adam, whereas the seventh--the prohibition on eating a limb torn from a living creature--was given to Noah. The title Noahide laws, therefore, is derived from the seventh law given to Noah and his descendants. Each of these laws is subdivided into further offenses, which are generally wider in nature than the provisions of positive halakhah in identical areas: see A. Lichtenstein, The Seven Laws of Noah (N.Y. 1981). See also Berman Noahide Laws in The Principles of Jewish Law supra note 5, at 708; Frimer, Israel, the Noahide Laws and Maimonides, 2 J ewish Law Association Studies ( B. Jackson ed. 1986); D. Novak, The Image of the Non-Jew in Judaism (1983). (25) Sanhedrin 57a. (26) Maimonides, Laws of Kings 8:11; See Berman, supra note 24; Novak, supra note 24, at 290; Lamm & Kirscenbaum, Freedom and Constraint in the Jewish Judicial Process, 1 Cardozo L. Rev. 110 (1970); Deinstag Natural Law in Maimonidean Thought and Scholarship, 6 Jewish Law Annual 64-77 (1987). (27) See Frimer, supra note 24. (28) Sanhedrin 59a. (29) Mekhilta Derabbi Yishmael, Masekhta Denezikin 4. (30) See, infra, notes 4647. (31) Or Sameah, Laws of Forbidden Intercourse 3:2; Meshekh Hokhmah, Vayakhel s.v. Shabbat Shabbaton. (32) M. Sanhedrin 8:7; Sanhedrin 72b; The principles of Jewish Law, supra note 5, at 474. (33) LAWS OF Homicide 1:9. (34) Sanhedrin 72a. (35) See Resp. Noda Biyehudah 2 Hoshen Mishpat NO. 59; Resp. Seridei Esh 3 no. 127; J. D. Bleich, supra note 11, at 347-54. (36) See R. Feinstein's remarks in Resp. Iggrot Moshe, Hoshen Mishpat 2 no. 69. (37) Sabbath 14:4. (38) Sanhedrin 78a. (39) Leviticus 24:17. (40) Yad Remah, Sanhedrin 78a; Minhat Hinukh no. 34; Cohn, On the Dichotomy of Divinity and Humanity in Jewish Law, in Euthanasia 38 (A. Carmi ed. 1984). (41) Laws of Kings 9:4. (42) Laws of Homicide 2:8. (43) Laws of Homicide 2:4. (44) Id. (45) See, infra, note 55. (46) Or Sameah, Laws of Kings 3:10. (47) See R. Meir Dan Plozkj, Hemdat Yisrael, Kuntres Ner Mitzvah no. 288; Frimer, supra note 24, at 96-99. (48) See, supra, note 31. (49) See, supra , notes 22-23. (50) Laws of Homicide 2:4. (51) Genesis 9:1-17. (52) Genesis 9:5-6. (53) See Frimer, supra note 24, for an argument that Maimonides applies the same reasoning to sexual crimes and theft. (54) Presumably, "worse" here means theologically or legally worse. It does not mean morally worse: see I. Twersky, Introduction to the Code of Maimonides 444 n. 213 (1980). (55) Laws of Homicide 4:9. (56) Resp. Iggrot Moshe, Yoreh Deah 3 no. 36. (57) Resp. Beth Avi 2 Hoshen Mishpat no. 153. (58) See Blidstein, Ideal and Real in Classical Jewish Political Theory, 2 Jewish Political Studies Review 54-59 (1990). (59) Derashot Haran no. 11. (60) See Blidstein, supra note 58, at 54. (61) See Schacht, The Law , in Unity and Variety in Muslim Civilization 71 (G. von Crunebaum ed. 1985); N. Coulpson, A History of Islamic Law 132-33 (1964). (62) Kuzari 2:28. See Blidstein, On Political Structures--Four Medieval Comments, 22 Jewish J. Soc. 54-55 (1980). (63) Coulson, supra note 61, at 132-33. (64) See, supra , note 10. (65) Sanhedrin 74a. The Talmud formulates this principle in the form of a rhetorical question: "How do you know that your blood is redder? Perhaps the blood of the other person is redder?" (66) Maimonides, Laws of The Foundations of the Torah 5:5; Shulhan Arukh, Yoreh Deah 157:1. (67) Terumot 7:20. See also D. Daube, Aube, Collabortaion with Tyranny in Rabbinic Law (1965); Shilo, Sacrificing One Life for the Sake of Saving Many Lives (Heb.) Hevrah Vehistoria 57 (1980). (68) See sources in note 66, supra. (69) Rema, Yoreh Deah 157:1. (70) 2 Samuel 20:4-22. (71) Beth Habehirah, Sanhedrn 74a. (72) Minhat Hinukh no. 296; Resp. Beth Yizhak, Yoreh Deah 2 no. 162:3. (73) Resp. Noda Biyehuda 2 Hoshen Mishpat no. 59. (74) See Tiferet Yisrael, Yoma 3:3; Resp. Yabia Omer 4 Even Haezer no. 1. (75) R. Judah Gershuni, Kol Zafayikh 576; Halperin Heart Transplants According to the Halakhah (Heb.) 5 Sefer Assia 68ff. (M. Halperin ed. 1986). (76) Jacobovits, Brain Death and Heart Transplants: The Israeli Chief Rabbinate Directives, Tradition 24 , sec. 7(1989). The phrase "for motor vehicle victims" indicates that the directives are restricted to terminally ill individuals: see Halperin, The Legal Significance of the Israeli Chief Rabbinate's Directives Concerning Heart Transplants (Heb.) 47-48 Assia 111-14 (1989). (77) See A. Simpson, Cannibalism and the common Law ch. 5 (1986). (78) B. Cardozo, Law and Literature 113 (1931). See also G. Williams, Textbooks of Criminal Law 559 (1978). (79) Glazebrook, The Necessity Plea in English Criminal Law, Cambridge L. J. 118-19 (1972). (80) This difference between Jewish and non-Jewish legal systems was noticed by R. Solomon Duran, a fifteenth century Algerian authority: See Sinclair, supra note 2, at 29,59. (81) This type of case is found in Holocaust Responsa: see Resp. Migei Haharigah no.1; E. Ben-Zimra, Halakhic Decisions Relating to the Sanctity of Life and Martyrdom in the Holocaust Period (Heb.), 80 Sinai 151ff. (1977). (82) See Resp. Ziz Eliezer 13 no. 102; 14 no. 101. (83) For a suggestion regarding the use of casuistic reasoning in general bioethics, see A. Jonsen & S. Toulmin, The Abuse of Casuistry ch. 16 (1988). (84) See Sinclair supra note 2, at 62-63.
Daniel B. Sinclair, author of Tradition and the Biological Revolution, is a member of the Institute for the Study of Jewish Law, in the Faculty of Law, at the Hebrew University of Jerusalem.
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|Author:||Sinclair, Daniel B.|
|Publication:||Criminal Justice Ethics|
|Date:||Jun 22, 1992|
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