Shabbat Parashat Vayakhel| 5764
From the works of Hagaon Harav Shaul Yisraeli zt”l - Compromises in Religious Legislation- part II - From Amud Hay’mini, siman 11
[We discussed last time the question of agreeing to legislation which is positive for the spiritual welfare of most but is directly harmful to that of others, where the alternative is a worse situation for all. We cited the mishna that if attackers say they will defile a group of women if the group does not hand over one of them, they should not give one over. On the other hand, there is an opinion in the Yerushalmi that if they specify a woman whom they demand, then it is better to give her over than to have the same tragedy befall them all. The problem is that the Rambam paskens like the opinion that in the parallel case of handing over someone to be killed, one can do so only if the specified person is guilty of death.]
We must understand what it means that the selected person is guilty of death. If it means that he is truly guilty, then why is it that he can be given over only to save lives? After all, non-Jewish authorities have the right to punish those who deserve it.
If one learns the Yerushalmi carefully [we cannot in this forum], he sees that the person was judged for death improperly, and yet he can be given over. But what is the logic of Reish Lakish that he must been sentenced for death, if the sentencing isn’t legitimate?
The idea is along the lines that at a time of decrees against c’lal Yisrael, one has to give his life to uphold even minor customs (Sanhedrin 74b). Rashi explains the logic that we cannot allow the oppressors to get used to weakening the Jews’ resolve, causing them to collapse in more serious matters, as well. Reish Lakish felt the same is so when the oppressors try to cause social strife by forcing a group to hand over one of their own to be murdered. When each one tries to save his own life at the expense of others, the enemy can have their way and inflict greater damage. This is so even when one has been selected by the idol worshippers. However, when the specified person was selected because, according to their (mistaken) system of justice, that person deserved to be killed, the logic does not apply. In that case, his situation was unique within the group, and the idol worshippers were not trying to weaken the group, but to do what they believed was right. R. Yochanan, who did not require the specified person to be guilty by any standard, agreed to the concept that we cannot allow a situation where one Jew is pitted against another. He just reasoned that as long as Jews do not have to decide whom to give over, the fear of internal fighting does not apply.
According to the above analysis, the machloket between R. Yochanan and Reish Lakish applies only to the question of murder and not to that of defilement. If they choose one person to be killed without any apparent logic, then we must fear it is to weaken the whole group. However, regarding the defilement, they choose one in whom they are interested specifically. Although effort should be made to save her, there is no point in having all of them killed or defiled in order to do so.
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