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Published online by Cambridge University Press: 20 May 2014
In re A was decided by the English courts in 2000. Twin girls, named Jodie and Mary for purposes of the decision, were born joined together at their lower extremities. Jodie's heart and lungs were more or less healthy. But Mary's were insufficiently developed and could not provide her with the flow of blood and oxygen needed to survive. However, the girls shared a single circulatory system so that Jodie's heart pumped blood that flowed through both their bodies. In this manner, Jodie's heart and lungs kept Mary alive. According to the doctors, this situation could continue for a period of three to six months, or a bit longer, at the most. As the girls grew, Jodie would be unable to provide sufficient blood and oxygen to support both Mary and herself. Both would die. The doctors recommended surgical separation of the two girls. Mary would necessarily die “within minutes,” being cut off from her source of sustenance. Jodie would have a good chance of surviving. The legal issue presented was whether the doctors may perform the surgery that would cause Mary's death. At issue were questions concerning the scope of self-defense and necessity. In the course of the Court's opinions, brief reference was made to Jewish law. This article considers the Jewish law sources that bear on these issues.
1 In re A, [2000] 4 All E.R. 961 (CA Civ. Div.).
2 Id. at 969.
3 Id. at 969–71, 986.
4 Id. at 1012, 1028–29.
5 R. v. Dudley and Stephens, 14 Q.B.D. 273 (1884); cf. United States v. Holmes, 26 F. Cas. 360, 1 Wall Jr. 1 (C.C.E.D. Pa. 1842).
6 [2000] 4 All E.R. at 1038.
7 Id. at 1051–52.
8 Id. at 1016.
9 Id.
10 Id. at 1017.
11 Id. Perhaps he thought that the absence of direct intent to kill Mary distinguished the case from Dudley. Lord Ward thought the doctrine of double effect does not apply “when the side effect of the good deed done for Jodie's benefit is another patient's, Mary's, death, and when the treatment cannot have been undertaken to effect any benefit for Mary.” Id. at 1016–17.
12 Id. at 1012.
13 Id. at 1062–63.
14 Id. at 1067.
15 Id. at 1010.
16 Id. at 1024.
17 Id.; see also id. at 1068 (Walker L.J.) (criticizing the presentation for not taking account of considerations based on the doctrine of double effect).
18 Rabbi Feinstein's son-in-law, Rabbi Professor Moshe David Tendler, has published a book titled Unpublished Responsa of Rabbi Moshe Feinstein, Translation and Commentary, which contains a brief article by Rabbi Tendler in which he describes a conversation with his father-in-law at the time he was considering his ruling. Rabbi Moshe Tendler, So One May Live, in 1 Unpublished Responsa of Rabbi Moshe Feinstein, Translation and Commentary (Care of the Critically Ill) 125–33 (Rabbi Moshe Tendler ed. & trans., 1996).
19 J. David Bleich, Survey of Recent Halachic Periodical Literature: Conjoined Twins, 31 Tradition 92, 106–10, 125 n.88 (1996).
20 See supra note 18.
21 It is worth noting that the issue presented to the Court in In re A also concerned whether it should order the hospital to perform the surgery ex ante.
22 See mEduyot 1:5.
23 On the differences between the common law idea of “reasonableness” and the Continental idea of “The Right,” see George P. Fletcher, The Right and the Reasonable, 98 Harv. L. Rev. 949 (1985).
24 Ronald Dworkin, Law's Empire 228–32 (1986).
25 mSanhedrin 8:7.
26 Id.
27 The Mishna was edited in Palestine, where Rabbi Judah lived. Its sources are Palestinian. There are two Talmuds, the result of Jewish dispersion. The Babylonian Talmud contains primarily the discussions in the academies in Babylonia, where most exiled Jews lived. The Palestinian or Jerusalem Talmud contains discussions held in the Palestinian academies, where a smaller group of Jews resided. Historically, the Babylonian Talmud has been the more influential of the two in determining the development of rabbinic Judaism.
28 Compare George P. Fletcher, Proportionality and the Psychotic Aggressor: A Vignette in Comparative Criminal Theory, 8 Israel L. Rev. 367 (1973), with Mordechai Kremnitzer, Proportionality and the Psychotic Aggressor: Another View, 18 Israel L. Rev. 178 (1983). For a recent review of the literature, see Boaz Sangero, Self-Defence in Criminal Law 11–90 (2006).
29 bSanhedrin 72b.
30 mOhalot 7:6.
31 Id.
32 bSanhedrin 72b.
33 There is a discrepancy between the text as it appears in virtually all editions of the Mishna and as it appears in the Gemara. The Mishna reads, “the greater part of [the child]” was born, but the Gemara's quotation is “his head” has emerged. In one place, the Jerusalem Talmud has both. jSanhedrin 26c. This textual problem has no significance for our discussion. Perhaps both versions are correct, one for a regular birth, the other for a breach birth.
34 bSanhedrin 72b. Rabbis Hisda and Huna lived in Babylonia during the third century.
35 bSanhedrin 72b.
36 Concerning the case of Sheva ben Bichri, see infra text accompanying notes 47–48
37 Tiferet Yisrael on Mishna, Ohalot 7:6.
38 Rabbi Dov Povarsky, a leading Israeli rabbinic authority, criticized Rabbi Feinstein's reasons for his decision on this ground. Rabbi Dov Povarsky, 4 Bad Kodesh § 52, at 128 (1983).
39 See Bleich, supra note 19.
40 bSanhedrin 74a.
41 Id. Rava lived in Babylonia during the fourth century. Some prefer Rabba to Rava. Rabba, too, lived in Babylonia in the preceding generation.
42 bSanhedrin 74a. Maimonides rules that although one is forbidden to kill the intended victim in this case, a person who succumbs to the threat and kills him is not punished. His act is not voluntary. Maimonides, Code, Laws Concerning the Foundations of the Torah 5:4. In contemporary terms, duress does not justify the killing but excuses it. In this sense, Jewish law is more akin to contemporary European law than to common law. See also Model Penal Code § 2.09 (1962); Arnold Enker, Duress as a Defense to Murder, in Rabbi Joseph H. Lookstein Memorial Volume 111 (Leo Landman, ed., 1980).
43 bSanhedrin 74a.
44 See the dispute between Tiferet Yisrael and Machane Chaim on this point, infra text accompanying notes 79–82.
45 mTerumot 8:12.
46 tTerumot 7:20. The Tosefta is a collection of early legal statements that were not included in Rabbi Judah's Mishna but were collected shortly thereafter.
47 Id.
48 2 Samuel 20.
49 jTerumot 46b. Sheva rebelled against King David, which is a capital crime. Rabbi Shimon and Rabbi Yochanan lived in the Land of Israel (Palestine) during the third century.
50 Maimonides, Code, Laws Concerning the Foundations of the Torah 5:5.
51 Rabbi Karo omitted reference to the issue in the Shulchan Aruch. But see Rama (Rabbi Moses Isserles) on Shulchan Aruch Yoreh Deah 157, 10. Rabbi Karo considered the issues in his commentaries, Kessef Mishneh on Book I (Sefer Mada) Laws Concerning the Foundations of the Torah 5:5 and Commentary Bet Yosef on Tur Shulchan Aruch Yoreh Deah 157 (Jerusalem 1969).
52 Maimonides, Code, Laws Concerning the Foundations of the Torah 5:5.
53 Shmuel Atlas, Rabbi Moshe HaCohen of Luniel 2–3 (1969) (in Hebrew). Rabbi Karo quotes Rabbi HaCohen's critique in his own commentary to Maimonides's Code, cited in the following footnote. Nothing is known concerning the details of Rabbi HaCohen's life.
54 Kessef Mishneh on Book I.
55 mHorayot 3:7–8.
56 Rabbi Avraham Yitzchak Kook, Mishpat Cohen 311–12 (1985).
57 Rabbi Avraham Bornstein, Sanhedri K'tana on B. Sanhedrin 72b 212 (Jerusalem 1992); Rabbi Yehiel Weinberg, Responsa Seridei Aish, part 2, on Yoreh Deah 38:8 447 (Jerusalem 1999). Lord Coleridge characterized this solution, proposed in the American Holmes case, as “somewhat strange.” R v. Dudley and Stephens, (1884) 14 Q.B.D. 273, 285 (Lord Coleridge C.J.) (Eng.) (discussing United States v. Holmes, 26 F. Cas. 360 (C.C.E.D. Pa. 1842)).
58 Commentary Bet Yosef 253 (Jerusalem 1969).
59 Maimonides, Code, Laws Concerning the Foundations of the Torah 5:5.
60 Exodus 19:6.
61 Isaiah 43:21.
62 Leviticus 22:32.
63 Maimonides, Code, Laws Concerning the Foundations of the Torah 5:1.
64 Id. at 5:10; see also id. at 5:11:
There are other things included in blasphemy, although they are not of themselves among either the affirmative or prohibitive commandments, as for example, when a great man, famed for his learning and piety, will do something that the public will suspect him on account thereof, even though such deeds be not transgressions, yet he has committed blasphemy, as for example: if he makes a purchase and does not pay for it at once, although he has the money and the vendors are claiming it and he delays them; or if he indulges in frivolity, or eats or drinks with and among the ignorant, or if his speech with his fellow men be not polite, or if he does not receive them pleasantly, but acts as one looking for strife and shows anger. In such and like matters, all measured by the standard of the greatness of such scholar, he must take particular care, and act exceedingly better than the law requires. Conversely, if the scholar restrains himself, speaks politely to his fellow men, and when among them acts like one of them, and receives them pleasantly, takes abuse from them but never gives abuse to them in return, respects them, even those who do not respect him, acts in business honestly, does not remain in company with the unlearned, nor visits their assemblies, and is rarely seen otherwise than to be engaged in the study of the Torah, wrapt in the prayer garment and adorned with phylacteries, and performs his duties exceedingly more than the law requires, provided he does not go to extremes and does not act so ridiculously, so that all praise him and love him and crave to imitate his actions, behold he doth sanctify the Lord, and concerning him, the verse speaks, saying: “And he said unto me, thou art my servant, Israel, in whom I am glorified [Isaiah 49:3].”
65 The struggle between Moses and Pharaoh is often understood in sociopolitical terms, as a struggle to free the slaves. But it is more than that. It is a religious-theological encounter:
Afterward Moses and Aaron went and said to Pharaoh, “Thus says the Lord, the God of Israel: Let my people go that they may celebrate a festival for Me in the wilderness.” But Pharaoh said, “Who is he Lord that I should heed Him and let Israel go? I do not know the Lord, nor will I let Israel go.”
Exodus 5:1–2.
66 Maimonides, Code, Laws Concerning the Foundations of the Torah 5:1–4.
67 Note that Maimonides sets forth these rulings at section 5:5, immediately following sections 5:1–4 that deal with the classic cases of duress, a demand to violate the law backed by the threat of death. Id. at 5:4.
68 For an early development of this aspect of the cases, see David Daube, Collaboration with Tyranny in Rabbinic Literature 20–27 (1965). For the description and discussion of an actual case that arose in Kalish, Poland, in 1620, see Elijah Schochet, A Responsum of Surrender: Translation and Analysis (1975).
69 Of course, it may be that designation of a particular person is a subterfuge, designed to conceal the demanders' true aim. Presumably, even Rabbi Yochanan would agree that one should not surrender the designated person in such circumstances. See Rabbi Moshe Feinstein, Responsa Igrot Moshe on Yoreh Deah pt. 2, responsum 60, at 59 (1973).
70 In the contemporary law of extradition, countries differ concerning the degree to which the demanding country must establish the basis for its charges.
71 mGittin 4:6.
72 bGittin 45a.
73 Rabbi Yehuda Henkin makes the same point. 3 Bnei Banim 159–60 (Jerusalem 1998). As far as I know, he is the only rabbi who does so.
74 Jerome Hall, General Principles of Criminal Law 447 (2d ed. 1960) (emphasis added).
75 Maimonides, Code, Laws Concerning the Foundations of the Torah 5:6–7.
76 R v. Dudley and Stephens, (1884) 14 Q.B.D. 273, 285 (Lord Coleridge C.J.); United States v. Holmes, 26 F. Cas. 360 (C.C.E.D. Pa. 1842).
77 For other recent discussions of the sources, which differ considerably from the discussion presented here, see Michael J. Harris, Consequentialism, Deontologism, and the Case of Sheva ben Bikhri, 15 Torah u-Madda J. 68 (2008–2009); J. David Bleich, Sacrificing the Few to Save the Many, 43 Tradition 78 (2010).
78 mOhalot 7:6.
79 See Tiferet Yisrael on Mishna, Ohalot 7:6 and discussion supra.
80 Id.
81 Actually, as I read this passage, it seems that this consideration bears on the choice concerning which of the two, the mother or the child, should be sacrificed in order to save the other, and not on the logically prior question of whether it is permitted to kill one of them to save the other.
82 5 Responsa Machane Chaim 131–34 (Jerusalem 1970).
83 See generally Irving Rosenbaum, The Holocaust and Halakhah (1976).
84 Shimon Efrati, MiEmek HaBacha 23–30 (Jerusalem 1961).
85 The Nazis did not threaten the group with death if its members did not comply with specified demands. Their object was to kill any and all members of the group they found.
86 The name means “Vision of a Man.” The word Ish is also composed of the initial letters of his given name.
87 Chazon Ish onbSanhedrin 203 (1966). Several prominent rabbis have expressed their disagreement. Shlomo Zalmen Auerbach, Minchat Shlomo on P'sachim 2a–28a 156 (5770); Eliezer Yehuda Waldenberg, 15 Tzitz Eliezer 188–90 (5743); Asher Weiss, Minchat Asher on P'sachim 28:9 at 142–43 (5770).
88 Phillipa Foot, The Problem of Abortion and the Doctrine of the Double Effect, 5 Oxford Rev. 5 (1967), reprinted in Philippa Foot, Virtues and Vices and Other Essays in Moral Philosophy 19 (2003); Judith Jarvis Thomson, The Trolley Problem, 94 Yale L.J. 1395 (1985).
89 Yitzchak Frankel, Zachor LeDavid 141–42 (2000) (in Hebrew). The author writes that he was present when the driver presented his question to Rabbi Karelitz.
90 See infra. Professor Judith Thomson considers the argument that to divert the trolley does not violate Kant's law not to use a person as a means to an end, since redirecting the trolley would save those originally endangered even if no one were standing on the side track. Thomson, supra note 88, at 1401–03.
91 Rabbi Shaul Yisraeli, The Commandment to Sanctify God's Name in Connection with the Three Most Severe Offenses, 14 Tora SheB'Al Peh 72 (5772).
92 Rabbi Yisraeli's position concerning the Tyre Disaster was set forth in two articles published in 1983 in volume 4 of the Israeli journal Techumin. Rabbi Shaul Yisraeli, Saving the Many vs. the Few in the Case of a Collapsed Building, 4 Techumin 136 (1983); Yisraeli, Rabbi Yisraeli's Comments, 4 Techumin 152 (1983). Interestingly, the editor posed to the Rabbi the question of how he reconciled his position with the rationale of Kiddush Hashem offered by me in an earlier article, Arnold Enker, Homicide Committed in Circumstances of Necessity and Duress in Jewish Law, 2 Shenaton Ha-Mishpat Ha-Ivri (Annual of the Institute for Research in Jewish Law) 154 (1975) (in Hebrew), but did not confront him with his own similar position presented in the article cited in the preceding footnote. One should probably see this as a polite gesture to avoid suggesting that the Rabbi had contradicted himself.
93 Yisraeli, supra note 92 (discussion in two articles in 4 Techumin (1983)).
94 See, however Rabbi Sofer's ruling in which he forbade killing the partially emerged fetus, contrary to Rabbi Lipschutz's position. See supra note 82.
95 See generally Thomson, supra note 88.
96 Cf. Bernard Williams's use of the concept of “integrity” in his essay A Critique of Utilitarianism, in J.J.C. Smart & Bernard Williams, Utilitarianism, For and Against 77, 108–18 (1973). And see the application of this analysis to issues of the lawyers' professional ethics in Daniel Markovits, Legal Ethics from the Lawyer's Point of View, 15 Yale J.L. & Human. 209 (2003).