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On Trolleys, Bazookas, and Faulty Reasoning

In Jewish Matters, Philosophy, Thought Experiments on November 30, 2014 at 8:59 PM

The so-called trolley problem, which single handedly appears to have kept a generation of moral philosophers in a job, is now well known. The problem, simply put, is why the intuitions of many as to the correct course of action differ between the following two cases which I have paraphrased from Judith Jarvis Thomson’s 1985 paper, “The Trolley Problem”:

Bystander at the switch

An out of control train is headed down a track and is on course to kill five people. You are an innocent bystander standing at a switching point.  If you flick the switch, the train is diverted to a spur track. The five people will be saved but unfortunately, there is one person tied to the spur track and he will die. Should you flick the switch?

Fat Man

An out of control train is headed down a track and is on course to kill five people. You are an innocent bystander standing on a footbridge over the track. Next to you, standing precariously on the edge of the footbridge, is a fat man. If you give the fat man a little push he will fall onto the track and his weight will stop the train and hence prevent the five from being killed. Unfortunately, the fat man dies. An act of self-sacrifice such as jumping off the bridge yourself would not work as your own weight is not sufficient to stop the train.  Should you push the fat man?

Much on the literature on this problem is to try and explain and justify the authors’ views, in line with the intuition of many, why it is acceptable to kill one to save five in Bystander at the switch but not acceptable to kill one to save the five in Fat Man.

However, Judith Jarvis Thomson had a paper published in 2008 entitled “Turning the Trolley” where she admitted that she had changed her view. She now thought it wrong to flick the switch in Bystander at the switch. She constructed a new thought experiment that I paraphrase below:

Bystander’s Three Options

An out of control train is headed down a track and is due to kill five people. You are a bystander standing on a left hand spur. There is also a workman on right handed spur track. Your three options are (i) do nothing in which case five people die, (ii) flick the switch to the right in which case the only person who dies is the workman on the spur, or (iii) flick the switch to the left killing yourself and no one else.

Thomson reasons: “I hope you will agree that choosing (ii) would be unacceptable on the bystander’s part. If he can throw the switch to the left and turn the trolley onto himself, how dare he throw the switch to the right and turn the trolley onto the one workman?” She goes on to explain that self-sacrifice is not required: “[A man] may let five die if the only permissible means he has of saving them is killing himself.”

It is this version of one of the many trolley problem thought experiments that is taken up by Howard Nye in his paper: “On the Equivalence of Trolleys and Transplants: The Lack of Intrinsic Difference between ‘Collateral Damage’ and Intended Harm,” just published in the December 2014 issue of Utilitas. (Sadly, the link requires a subscription. It is not free to access.) Nye explains that he was convinced that Thomson’s Bystander’s Three Options was equivalent to his own thought experiment below:

Bazooka Holder’s Three Options.

You, Bugsy and the five are tied to three parallel trolley tracks, and empty trolleys are heading down each track. You have a bazooka with only two rounds, giving you three options: (1) blow up the trolleys heading towards the five and Bugsy, in which case only you will die; (2) blow up the trolleys heading towards the five and you, in which case only Bugsy will die; or (3) blow up the trolleys heading towards Bugsy and you, in which case only the five will die.

The problem is that these examples are not similar enough. There is a key moral difference and it has to do with the acts and omissions doctrine. This should not be elided without reasoning. These differences can be noted:

  1. Doing nothing in Bystander’s Three Options mean five people die, whereas doing nothing in Bazooka Holder’s Three Options means seven people die. This option of doing nothing is not noted by Nye as one of the bazooka holder’s three options. Doing nothing is noted as an option by Thomson in Bystander’s Three Options.
  2. Five people dying and no one else dying in Bystander’s Three Options results from doing nothing. The five people dying and no one else dying in Bazooka Holder’s Three Options results from the bazooka holder doing something: choosing to save himself and save Bugsy.
  3. Only one person (not the bystander) dying in Bystander’s Three Options results from doing something that kills the man on the spur. Only one person (not the bazooka holder) dying in Bazooka Holder’s Three Options results from the bazooka holder doing something to save the five and save himself. The Bazooka holder lets Bugsy die, he does not kill him.
  4. Only the bystander dying in Bystander’s Three Options results from the bystander committing suicide. Only the bazooka holder dying in Bazooka Holder’s Three Options arises from the bazooka holder choosing to saving six other people and letting himself die.

These differences are important. It is a well established relevant moral fact that there is a difference between killing a man and letting him die. It is crucial in many areas, notably the debate on euthanasia. It is also important in law: the difference between killing a man (drowning him in a river) and not saving his life (a bystander with no special duty of care not throwing a lifebelt to a drowning man) is the difference in countries such as England and America between going to prison for many years for murder or manslaughter and getting off scot-free.

Recall that Thomson argues that a man “may let five die if the only permissible means he has of saving them is killing himself.”  In response, Nye states:

It is indeed plausible that it is wrong to force a cost on someone if she isn’t morally obligated to assume it. There are, however, cases in which we do seem permitted to do things that result in someone’s bearing a cost that she would not be obligated to assume herself. We seem permitted, in cases like Bazooka Holder’s Three Options, to save ourselves rather than Bugsy even though Bugsy would not be required to save us rather than himself.

This is problematic because Nye has not made a comparable argument. In Bazooka Holder’s Three Options, if the Bazooka holder chooses to save the five and himself it is not what the Bazooka holder has done that results in Bugsy “bearing a cost” (dying). Bugsy dies because without any action on the Bazooka holder’s behalf he would die anyway.  Bugsy has no positive right that the Bazooka holder should save him.

While the five in Bazooka Holder’s Three Options also have no positive right to be saved, let us assume out of the goodness of your heart, you, the Bazooka Holder, used one of your bazooka rounds to save the five. If so, we are now left with the following problem.

Bazooka Holder’s Three Options (Revised)

You and Bugsy are tied to parallel trolley tracks, and empty trolleys are heading down each track. You have a bazooka with one round.  You have three options: (i) do nothing in which case you will both die, (ii) blow up the trolley heading towards yourself, saving yourself and letting Bugsy die, (iii) blow up the trolley heading towards Bugsy saving Bugsy and letting yourself die.

This revised problem is morally equivalent to the following:

Jug of Water

You and Bugsy are journeying through the desert and you have a single jug of water. You have three options (i) Share the water with Bugsy in which case you will both die as there is an insufficient amount to keep you both alive, (ii) give the jug of water to Bugsy such that he survives and you die, (iii) drink the water yourself such that you survive and Bugsy dies.

Some readers may be familiar with this version. It predates Judith Jarvis Thomson’s trolley problem by nearly two millennia. It arises in a dispute between Rabbi Akiva and Ben Petura on Leviticus 25:36. The answer to Jug of Water, according to Rabbi Akiva and Jewish law, is that you are not required to give up your own life so another might live. “Your life becomes before the life of your fellow man.” This is contrasted with a different Talmudic problem: Can a man threatened with death kill another man to save his own life?  The answer, according to the Jewish tradition, is no: “who shall say your blood is redder than his? Perhaps his blood is redder than yours.”

The point of me providing these last examples is not to promote Jewish ethical values, but to demonstrate that even in ancient times it was recognised that there is a moral difference between killing and letting die. This difference explains a crucial differential between Bystander’s Three Options and Bazooka Holder’s Three Options.


Eichmann’s Fanaticism

In Book Review, History, Holocaust, Jewish Matters on October 30, 2014 at 1:11 PM

This is a cross post. It was originally published on Harry’s Place on October 2nd 2014, 10:44 pm

Book Review

Bettina Stangneth, Eichmann Before Jerusalem: The Unexamined Life of a Mass Murderer (Alfred A. Knopf, 2014) 608pp.

When I first became aware of Bettina Stangneth’s new book on Eichmann, I rolled my eyes and asked myself a question: how much of the book is really about Hannah Arendt?

This cynicism is not unfounded. The main text of David Cesarani’s 2005 biography, Eichmann: His Life and Crimes, is 368 pages. The index informs us that Hannah Arendt or her Eichmann thesis are discussed on 29 of them. So much of Deborah Lipstadt’s 2011 book, The Eichmann Trial, is about Arendt that there is a picture of her on the dust jacket. And one only has to consider the choice of title of Stangneth’s book, Eichmann Before Jerusalem, to realise that it is an allusion to Arendt’s own Eichmann in Jerusalem. I am therefore not surprised that Stangneth views her whole book as a “dialogue with Hannah Arendt.”

In fact, Eichmann Before Jerusalem provides a meticulous account of Eichmann’s time in Argentina. This was where he hid after evading capture as a war criminal after the Second World War. It was in Argentina that Eichmann spent a substantial amount of time with other Nazi bigwigs who likewise had escaped Germany and still believed in the cause. With these insalubrious characters, Eichmann did not have to use his assumed name of Ricardo Klement, he was “Adolf Eichmann – SS-Obersturmbannführer (retired).” There was the Dürer publishing house that published Der Weg, a magazine that was “as openly anti-Semitic, racist, and National Socialist as if the Third Reich had never collapsed.”  In 1954, Der Weg published an article entitled “The Lie of the Six Million.” They were denying that gas chamber existed for the systematic murder of Jews long before Ernst Zündel, Arthur Butz and David Irving. There was also Willem Sassen’s circle. It was here that Eichmann, other unreformed Nazis and their fellow travellers sat around discussing news reports and books that were appearing on the Third Reich, much of which they derided as emanating from the “Jewish enemy.”  Many of these conversations, where participants discussed historical documents and argued over their interpretation, were deliberately recorded and transcribed. Stangneth tracked down twenty-nine hours of the recordings.

Eichmann remained a dedicated anti-Semite and his output was prolific. His so-called “Argentina Papers” contain a 107-page manuscript (with the didactic title, “The Others Spoke, Now I Want to Speak”), over one thousand pages of Sassen interviews, “several introductory essays with accompanying notes, and around one hundred more pages of notes and commentaries on books.” Stangneth’s task was onerous but much of what she was able to access was available neither to the court in Jerusalem when Eichmann was tried, nor to Hannah Arendt for her famous but controversial report of the trial. However, not all of Eichmann’s known writings in Argentina could be seen by Stangneth. He wrote a 260-page document known as the “Tucumán Novel” in which he “attempted to give a detailed account of his life and actions, explaining himself first and foremost to his children, his family, and the ‘generations to come.’” The Eichmann family have this document but – nauseatingly – would not allow Stangneth access without “an appropriate level of remuneration.”

While in Argentina with such septic waste, Eichmann even planned to write and have published an open letter to the West German chancellor, Konrad Adenauer. As Stangneth explains, the Nazis were not just recording conversations and writing for the benefit of the history books, “they wanted to make a difference, to get back to Europe and involve themselves in West German politics.” The dream was a revival of National Socialism. In order to do this, history was being rewritten and an attempt was being made at redeeming Hitler.

In order to realise this dream, many of the Nazi exiles in Argentina thought it best to minimise the destruction of the Jews. But this was not Eichmann. For him, the Jews were to blame – they were the guilty ones. He raved that Chaim Weizmann had declared war on the German people “in the name of Jewry.” Millions of Germans had died in the war. They were the true victims. The Jews were always the aggressors – so Eichmann pointed out with respect to the Suez crisis – and they were the true war criminals.

Eichmann was proud that one of his superiors said to him, “if we’d had fifty Eichmanns, we’d have won the war for sure.” He was also proud of his Nazi achievements. He is notorious for saying at the end of the war: “I will jump into my grave laughing, because the fact that I have the death of five million Jews [‘enemies of the Reich’] on my conscience gives me extraordinary satisfaction.” He retained that view in 1957 in Argentina: “The only good enemy of the Reich is a dead one.” If he had any regrets it was that they had not managed to kill all the 10.3 million Jews in his sights. Only by doing so would they have fulfilled their duty.  After such admissions Stangneth notes that the Sassen project ran into insurmountable problems. Victims’ testimonies and other documents about the killings of Jews could be dismissed as “anti-German,” “propagandist,” “exaggerated,” or “counterfeit,” but Eichmann, a dedicated National Socialist, and the man they hoped would be their chief witness, “had laid a few million more lives on the table.”

What Stangneth has uncovered with her research is remarkable, but she admits there is more work to be done on Eichmann’s Argentinian Papers, and she encourages others to do it. Her research was not plain sailing. In her book she has not been hesitant to make caustic remarks about those who have been less than forthcoming with assistance. In one example she states “I have not been able to convince Daimler that the possibility their staff may have included not only a mass murderer but also someone who aided a famous German attorney general makes cooperating with a researcher a worthwhile exercise.” And in her acknowledgements: “A few inquiries remain unanswered. I would still be delighted to hear from David Cesarani….”

In a review of Eichmann Before Jerusalem for The New York Times, Seyla Benhabib comments:

Eichmann’s self-immunizing mixture of anti-Semitic clichés, his antiquated idiom of German patriotism and the craving for the warrior’s honor and dignity, led Arendt to conclude that Eichmann could not “think” — not because he was incapable of rational intelligence but because he could not think for himself beyond clichés. He was banal precisely because he was a fanatical anti-Semite, not despite it. [Emphasis added.]

I am surprised that Benhabib, an Arendt specialist, has made this statement, because it is the exact opposite of what Arendt concluded. This is what Arendt wrote in Eichmann in Jerusalem:

[Eichmann’s] was obviously no case of insane hatred of Jews, of fanatical anti-Semitism or indoctrination of any kind. He “personally” never had anything whatsoever against Jews; on the contrary, he had plenty of “private reasons” for not being a Jew hater. To be sure, there were fanatic anti-Semites among his closest friends…..but this, according to Eichmann, was more or less in the spirit of “some of my best friends are anti-Semites.”

Arendt had a lot to say in Eichmann in Jerusalem. Some of her very controversial comments about the Jewish Councils in Nazi occupied Europe are not even discussed by Stangneth. But from now on, and as a result of Stangneth’s research, those who wish to defend Arendt’s claims will have their work cut out for them.

Hannah Arendt and the Eichmann in Jerusalem Controversy

In Holocaust, Israel, Jewish Matters on November 28, 2012 at 6:00 PM

One of the most controversial mainstream books ever written about the Holocaust was one by the German Jewish political philosopher, Hannah Arendt, published in 1963. Her book, Eichmann in Jerusalem: A Report on the Banality of Evil, arose from her reporting of the trial of Adolph Eichmann that took place in Jerusalem in 1961.

The book was controversial for a number of reasons. These included her depiction of Eichmann as someone who was a thoughtless person just doing his job. Despite the fact that his job involved the deportation of  Jews by the million to their death, Arendt argued that Eichmann was not a “monster” and that he had no “insane hatred of Jews.”  It was not just Arendt’s depiction of Eichmann that caused controversy, her argument that without  the Jewish Councils (Judenrat) there would have been far fewer Jews murdered, made many of her critics angry.

While the controversy was also in Europe, the main polemical arguments for and against the book took place in American journals. The so-called “New York Intellectuals,” including those who knew knew Arendt personally, passionately argued their respective positions for and against the book.

In 2007, I wrote an essay about that controversy entitled, “The Eichmann Polemics: Hannah Arendt and Her Critics.” It was published in Democratiya, issue 9, summer 2007. I have made a copy available on line here.

Collective Responsibility, a Biblical Episode, and Rabbinical Thought

In Israel, Jewish Matters, Just War on November 23, 2012 at 10:10 AM

This is a cross post. It was originally posted on Harry’s Place on November 22nd 2012, 5:30 pm

In the last few days, in the light of Israel’s Operation Pillar of Defense, a question has arisen as to whether the members of the population are responsible for its government.  This question is tied in with the idea of collective punishment.

In the first instance we had Gilad Sharon, son of former Israeli Prime Minister Ariel Sharon,  in an op-ed for the Jerusalem Post, saying:

The residents of Gaza are not innocent, they elected Hamas. The Gazans aren’t hostages; they chose this freely, and must live with the consequences.

The consequences, as far as he would like them, are rather dramatic:

We need to flatten entire neighborhoods in Gaza. Flatten all of Gaza. The Americans didn’t stop with Hiroshima – the Japanese weren’t surrendering fast enough, so they hit Nagasaki, too.[1]

Against this, from the opposite side, writing in the Huffington Post, we have British Member of Parliament and former Shadow Foreign Secretary Gerald Kaufman:

Israel is a democracy, undeniably. But a democracy that commits war crimes is still a war criminal. It has an exceptionally right wing government, with an overtly racist foreign minister. That government has taken office on the basis of an election. This means that the Israeli electorate is complicit in its government’s war crimes. [Emphasis added][2]

The question of whether the population can be held responsible for the actions of its government was hotly debated  on Twitter between the Huffington Post UK’s political director, Mehdi Hasan, and Guardian contributor and blogger, Sunny Hundal. Hasan argued that people “have to be held somehow responsible” for the governments they elect.[3] Despite being an outspoken opponent of the war in Iraq,[4] under questioning, he agreed “indirectly…as part of UK public in a democracy” that “to an extent” he was “complicit in the deaths of Iraqi babies.”[5] Hundal, on the other hand, was of the opinion: “This ‘all citizens complicit’ argument is a very slippery slope, because extremists will then act on it.”[6]

The question is indeed an interesting one. In this post I aim to look at an analogous biblical episode and commentary to which rabbis might look to in order to answer the question from a Jewish religious perspective. That episode is the one detailed in Genesis 34. The relevant facts are that Dinah, daughter of Jacob, was kidnapped and raped by Shechem, the son of Hamor and the Prince of the land. In response, two of Dinah’s brothers went and killed all the males of the city where Shechem lived and took the women and animals as spoils of war. While they were rebuked by Jacob for their actions, it does not appear that Jacob’s criticism at the time was from a moral standpoint: his concern was that it could lead to reprisals.[7]

Maimonides (the Rambam), Nachmanides, (the Ramban) and Rabbi Judah Loew ben Bezalel (the Maharal) were influential medieval biblical commentators who came to different conclusions on this episode. I will take each of these in turn.

Maimonides’s view was that the inhabitants of the city where Shechem lived could all be killed. They were all guilty of not setting up a court of law to render judgement on Shechem despite being aware of his deeds.[8] This responsibility to prevent crime and punish criminals is the responsibility both of each the individual member of society and society as a whole.[9] It is important to note that Maimonides assumes that the people are in a position to be able to put their leaders on trial. The populace could not be held responsible for not judging their leaders if attempting to do so would mean that that they would be killed.[10]

Nachmanides has a very different approach. His opinion was that  Dinah’s brothers had gone beyond the original plan which was just to deter Shechem from marrying Dinah. According to this view, even if they deserved to die for other reasons, Dinah’s brothers killed the populace “with no reason, for they did not do evil to [Dinah’s brothers] at all.” [11] Nachmanides is explicit: “it was not the responsibility of Jacob and his sons to bring them to justice.” [12]

The Maharal’s view is different again. He sees the kidnapping and rape of Dinah as a casus belli. When a nation is attacked, it is permitted to go to war. In war there is no distinction, as the Maharal interprets Jewish law, between the innocent and the guilty in a nation. Hence when Jacob’s sons responded to the taking of Dinah, they were permitted to kill all citizens in the town irrespective of any guilt: “even though there are many who did not do [anything], this makes no difference. As they belong to the same nation which did them harm, they are allowed to wage war against them.” [13]

The late Mordechai Eliyahu is the former Sephardi chief rabbi of Israel. In 2007, he cited Maimonides commentary on the Shechem incident in a published letter directed at the then Israeli Prime Minister. In this letter he argued that all citizens in Gaza are collectively responsible for the rockets fired from there into the Israeli town of Sderot. An entire city, he said, could be held collectively responsible in Jewish law for the immoral behaviour of individuals. According to Mordechai Eliyahu’s son, this meant, in practice, he advocated carpet bombing of areas from where missiles were fired.[14]

If one accepts the Maharal’s formulation, then one would believe that in war, as innocence is irrelevant, it is perfectly acceptable to kill a baby in its mother’s arms. This would be the position of, for example, Yaakov Ariel, Chief Rabbi of the City of Ramat Gan and a leading rabbi in the religious Zionist movement.[15] While Rabbi Yitzhak Blau argues that “Maharal represents a decidedly minority viewpoint with regard to [the Shechem indicent] and is thus a shaky leg upon which to build a far reaching position,”[16] Rabbi Chaim Jachter is insistent: “Maharal is a most solid source and most definitely does not constitute a ‘shaky leg’  upon which to base a resolution to our question.”[17] He is in no doubt: “the Israeli army may risk the lives of Palestinian civilians living near Palestinian terrorists. The same applies to Hezbollah terrorists embedded among the civilian population of Lebanon.”[18]

Interpretations of the Shechem incident provided by Maimonides (they are all guilty) or the Maharal (there is no difference between the innocent and guilty in war) might seem unpalatable to those whose moral views on war are more in line with the Geneva Conventions than these authorities on Jewish law. There are alternative Jewish religious views.

In Rabbi Shlomo’s Goren opinion, what is important about the Shechem incident is that Jacob criticised his sons for their actions. Jacob rejected “collective responsibility . . . as a criterion in the ethic of waging war . . . [and]  was opposed to killing . . . both from a security viewpoint and from an ethical one.” Goren was able to conclude:

We are commanded… even in times of war . . . not to harm the non-combatant population, and certainly one is not allowed to harm women and children who do not participate in war…[19]

Ayre Edrei of the Faculty of Law, Tel Aviv University explains: “There are no traces of the Maharal’s position in Rabbi Goren’s writings, for he sought to advance an ethical model for the Israel Defense Forces anchored in Jewish tradition.”[20] According to Ya’acov Blidstein, Professor Emeritus in the Department of Jewish Thought at Ben Gurion University, Rabbi Goren’s discussion “is not based upon Talmudic sources, nor does it confront the arguments of the opposing approaches. This naturally weakens its halakhic [Jewish legal] impact and authority.”[21] This may well be true. Even if so, Shlomo Goren’s opinions did not stop him being appointed Chief Rabbi of the Israel Defence Forces and later Chief Rabbi of the State of Israel.


NB. All Internet links last accessed November 22, 2012.

[1] Gilad Sharon, “A decisive conclusion is necessary,” Jerusalem Post (Online Edition) November 18, 2012. Available at http://www.jpost.com/Opinion/Op-EdContributors/Article.aspx?ID=292466&R=R1&utm NB At the end of the article an editorial statement is made: “The views expressed in this op-ed do not reflect the editorial line of The Jerusalem Post.”
[2] Sir Gerald Kaufman, “Why I believe Israel is committing War Crimes,” Huffington Post UK, November 20, 2012. Available on line athttp://www.huffingtonpost.co.uk/sir-gerald-kaufman/gaza-israel-palestine_b_2164599.html
[3] https://twitter.com/mehdirhasan/status/270921613057355776
[4] Mehdi Hasan, “We can’t pin Iraq on Blair alone,” New Statesman, (Online edition) January 21, 2011. Available at http://www.newstatesman.com/uk-politics/2011/01/blair-war-iraq-secretary-prime
[5] https://twitter.com/mehdirhasan/status/270942111547936768
[6] https://twitter.com/sunny_hundal/status/270944198881054720
[7] Genesis 34. This can be seen online for example at http://www.mechon-mamre.org/p/pt/pt0134.htm
[8] Maimonides, The Laws of Kings and Their Wars, 9:14 Available on line at http://www.chabad.org/library/article_cdo/aid/1188354/jewish/Chapter-9.htm
[9] J. David Bleich, “Torture and the Ticking Bomb,” TRADITION, Vol. 39, No. 4, Winter 2006: pp.111-112.
[10] Yitzchak Blau, “Biblical Narratives and the Status of Enemy Civilians in War Time,” TRADITION, Vol. 39. No. 4, Winter 2006: p.16.
[11] Binyamin Singer, Ramban Classic Themes in Nachmanides’ Chumash Commentary: Volume 1: Bereishis & Shemos (Targum Press, 2005) pp.164-168.
[12] Nachmanides, Commentary on the Torah: Genesis, trans. Charles B. Chavel (Shilo, 1971), p.419 cited by Michael Walzer, “War and Peace in the Jewish Tradition,” In Terry Nardin (ed.), The Ethics of War and Peace: Religious and Secular Perspectives, (Princeton University Press, 1996), p.98.
[13] The Maharal’s commentary Gur Aryeh to Genesis. 34:14, cited by Ya’acov Blidstein, “The Treatment of Hostile Civilian Populations: The Contemporary Halakhic Discussion in Israel,” Israel Studies, Vol. 1, No. 2, Fall 1996, p.36.
[14] Matthew Wagner, “Eliyahu advocates carpet bombing Gaza: says there is no moral prohibition against killing civilians to save Jews,” Jerusalem Post (Online edition), May 30, 2007. Available at
[15] Michael J.  Broyde, “Just Wars, Just Battles and Just Conduct in Jewish Law: Jewish Law is Not a Suicide Pact!”, in Lawrence Schiffman and Joel B. Wolowelsky (Eds.), War and Peace in the Jewish Tradition, (Yeshiva University Press, 2007), p.27, p.40n96.
[16] Yitzchak Blau, “Biblical Narratives and the Status of Enemy Civilians in War Time,” TRADITION, Vol. 39. No. 4, Winter 2006: p.11.
[17] Chaim Jachter, “Halachic Perspectives on Civilian Casualties – Part 2,” Kol Torah, Vol. 17, No. 17, January 5, 2008, available on line at http://koltorah.org/ravj/Halachic_Perspectives_on_Civilian_Casualties_2.html
[18] Chaim Jachter, “Halachic Perspectives on Civilian Casualties – Part 3,” Kol Torah, Vol. 17, No. 18, January 12, 2008, available on line at http://koltorah.org/ravj/Halachic_Perspectives_on_Civilian_Casualties_3.html
[19] Rabbi S. Goren, Meshiv Milhamah 1(Jerusalem, 1983 ) 16, 26, cited by Ya’acov Blidstein, “The Treatment of Hostile Civilian Populations: The Contemporary Halakhic Discussion in Israel,” Israel Studies, Vol. 1, No. 2, Fall 1996, p.37.
[20] Arye Edrei, “Divine Spirit and Physical Power: Rabbi Shlomo Goren and the Military Ethic of the Israel Defense Forces,” Theoretical Inquiries in Law Vol. 7, 2005, p.287.
[21] Ya’acov Blidstein, “The Treatment of Hostile Civilian Populations: The Contemporary Halakhic Discussion in Israel,” Israel Studies, Vol. 1, No. 2, Fall 1996, p.37.

Jewish Law and Proportionality in War

In Israel, Jewish Matters, Just War on November 8, 2012 at 5:57 PM

This is a cross post. It was originally posted on Harry’s Place on November 8th 2012, 3:30 pm

Peter Jenkins, Britain’s former representative on the International Atomic Energy Agency, has caused some controversy in a speech he gave at Warwick University where he stated:

Israelis don’t practise an eye for an eye and a tooth for a tooth, they practise ten eyes for an eye and ten teeth for a tooth.

He added:

The idea that a just war requires the use of force to be proportionate seems to be a Christian notion and not a Jewish notion. [1]

The Jewish Chronicle reports that in response to Jenkins’ comments, Jonathan Sacerdoti, director of the Institute for Middle Eastern Democracy, informed the audience that Jenkins’ speech was ‘laced with its subtle attempts at antisemitism, masked behind polite diplomatic chatter.’ [2] The Community Security Trust, an organisation that represents British Jewry to Police, Government and media on antisemitism and security, accused Jenkins of ignorance.[3]

Like many statements that are often used to attack Israel, while devoid of any context, there is an element of truth in Jenkins’ remark. Michael Broyde of the Emory University School of Law explains that while it is ‘terribly disquieting’ and ‘deeply uncomfortable’ to him:

Jewish law has no ‘real’ restrictions on the conduct of the Jewish army during wartime, so long as the actions being performed are all authorized by the command structure of the military in order to fulfill a valid and authorized goal and do not violate international treaties.[4]

The conclusion is stark: it is international treaties, not Jewish law that leads to the proportionality requirement of the conduct in war. While conventions external to Jewish law, but mutually agreed by the combatants, would be binding on all Jewish adherents, ‘Jewish law has few, if any, rules of battle.’[5]

Elliot Dorff, Rabbi and professor of Jewish theology at the American Jewish University comments that ‘the principle of proportionality is not nearly as clear and authoritative a tenet in Judaism as it is in Catholicism.’[6] Even more firm in his statement is Yishai Kiel of the Department of Talmud at the Hebrew University of Jerusalem. He points out that there is a ‘total absence of moral issues relating to warfare in the classical rabbinic statement regarding the laws of war in the eighth chapter of tractate Sotah, including the Mishnah, and theTosefta, and both Talmuds.’[7] Dorff points out that it is not even entirely clear as to whether Jewish law ‘requires any distinction between combatants and noncombatants even in the conduct of war.’[8]

Moreover, in advance of war, Rabbi Bleich,  Professor of Jewish Law and Ethics at the Benjamin N. Cardozo School of Law, in a conclusion largely agreed with by the eminent Just War theorist, Michael Walzer,[9] said:

Not only does one search in vain for a ruling prohibiting military activity likely to result in the death of civilians  but, to this writer’s knowledge, there exists no discussion in classical rabbinic sources that takes cognizance of the likelihood of causing civilian casualties in the course of hostilities legitimately undertaken as posing a halakhic [Jewish legal] or moral problem.[10]

Numerous Jewish laws (the discussion of which is outside the scope of this article) exist as to which wars are optional, which are commanded, and which are obligatory to fight. There are laws as to what must occur before a war. Notably, according to Maimonides, a great authority on Jewish law, it is obligatory to seek peace before a war is commenced:

One does not wage war with anyone in the world until one seeks peace with him…. as it says [in the Torah], ‘When you approach a city to wage war, you shall [first] call to it in peace.’[11]

A traditional Jewish greeting is ‘Shalom.’ This translates as ‘peace,’ but as Michael Walzer explains, ‘Shalom has a more local and immediate meaning, “not war,” as in the biblical command to “proclaim peace.”’[12] Yishai Kiel is explicit: ‘the “Call for Peace”…[is] ultimately designed to avoid the bloodshed concomitant with the state of war.’[13]

Moreover, the important thirteenth century Jewish scholar Nahmanides tells Jews:

God commanded us that when we lay siege to a city that we leave one of the sides without a siege so as to give them a place to flee to. It is from this commandment that we learn to deal with compassion even with our enemies even at time of war.[14]

 Jewish law prohibits wanton destruction. For as it says in the scripture:

When thou shalt besiege a city a long time, in making war against it to take it, thou shalt not destroy the trees thereof by wielding an axe against them: for thou mayest eat of them, and thou shalt not cut them down. (Deuteronomy 20:19)[15]

In his codification of this prohibition of cutting down fruit-bearing trees, Maimonides expanded it to include other items: tearing clothes or demolishing a building, as examples, would both transgress the command ‘You shall not destroy.’[16]

 Rabbi Bleich informs us that in Jewish law an assessment must be made as to ‘whether a proposed war is indeed necessary and whether it will be successful in achieving its objectives.’ It is ‘only when the lives preserved are greater in number than the lives whose loss may be anticipated as a result of armed conflict’ that ‘the need to eliminate a potential aggressor is an imperative causus belli that renders even preemptive war permissible.’ He notes, ‘The justification of war in such circumstances is the saving of lives, not the punishment of the enemy.’[17]

When it comes to nuclear war, the late Chief Rabbi, Lord Jakobovits discussed the matter some fifty years ago:

In view of this vital limitation of the law of self-defense, it would appear that a defensive war likely to endanger the survival of the attacking and the defending nations alike, if not indeed the entire human race, can never be justified. On the assumption, then, that the choice posed by a threatened nuclear attack would be either complete destruction or surrender, only the second may be morally vindicated.

What is clear from Jakobovits’s argument that leads to his conclusion is that in his opinion, the immorality of the use of nuclear weapons in Jewish law is largely because the survival of both sides are endangered, for as he earlier says:

So long as wars were limited and it was likely that the belligerents would survive and one would emerge victorious, the basic right to arm and to wage war was clearly asserted by the law of self-defense, whether what was to be defended were lives or moral values. But if both the lives and the values to be defended may, as now appears possible, themselves be destroyed together with the aggressor in the exercise of self-defense, the right to resort to it is questionable.[18]

It is true, as Peter Jenkins suggested, that the concept of proportionality in war in the way that we understand it in the modern day owes much to Christian thought, specifically to Aquinas in the thirteenth century, as opposed to Jewish thought.[19] The reason why Jews did not historically focus on this area is obvious – and it was pointed out by the late Rabbi Louis Jacobs: ‘For 2,000 years Jews had no state of their own, so that the whole question was academic.’[20] Michael Walzer elaborated on this point: ‘Jews are the victims, not the agents, of war. And without a state or an army, they are also not the theorists of war.’[21]

The ethics of war are considered both by the State of Israel and by scholars of Orthodox Jewish law. In a meeting of the Orthodox Forum held in March 2004, a conclusion was as follows:

The committee believed that discussions about how Judaism conceives the justification for war and the conduct of war should not be held in a vacuum; they should not take place exclusively on the plane of [Jewish legal and traditional non legal Jewish narrative] sources. Rather, religious explorations must engage secular ethical perspectives and secular legalities, as well as perspectives promulgated by Christianity in its quest for a definition of ‘Just War.’ We need to place Jewish tradition in conversation with general moral sensibilities and international regulations.[22]

When it comes to the value placed on human life, rather than Jenkins’ argument that Israelis ‘practise ten eyes for an eye and ten teeth for a tooth,’ one can consider what occurred in practice: last year the Israeli government agreed to free 1,027 prisoners, including some with blood on their hands, in exchange for Gilad Shalit, a single captured Israeli soldier.[23]

The Israeli Defence Force (IDF) have a code of ethics. The Spirit of the IDF is drawn from a number of sources including ‘The tradition of the Jewish People throughout their history’ and ‘Universal moral values based on the value and dignity of human life.’ This code includes the idea of ‘Purity of Arms.’ The relevant clause I copy below:

The IDF servicemen and women will use their weapons and force only for the purpose of their mission, only to the necessary extent and will maintain their humanity even during combat. IDF soldiers will not use their weapons and force to harm human beings who are not combatants or prisoners of war, and will do all in their power to avoid causing harm to their lives, bodies, dignity and property.[24]

I leave the last word to Michael Broyde:

We all pray for a time where the world will be different – but until that time, Jewish law directs the Jewish state and the American nation do what it takes (no more, but no less, either) to survive and prosper ethically in the crazy world in which we live.[25]


Bleich, David J. 1983, ‘Preemptive War in Jewish Law’, TRADITION: A Journal of Orthodox Thought, Vol. 21, Number 1, Spring: 3-41.

Broyde, Michael J. 2007, ‘Just Wars, Just Battles and Just Conduct in Jewish Law: Jewish Law is Not a Suicide Pact!’, in Lawrence Schiffman and Joel B. Wolowelsky (Eds.), War and Peace in the Jewish Tradition, New York: Yeshiva University Press: 1-43.

Dorff, Elliot N. 1991, ‘Bishops, Rabbis, and Bombs’, in Confronting Omnicide: Jewish Reflections on Weapons of Mass Destruction, edited by Daniel Landes, Northvale, New Jersey: Jason Aronson Inc.: 164-195.

‘Ethics’, Israeli Defence Forces. Available on line athttp://dover.idf.il/IDF/English/about/doctrine/ethics.htm (Accessed November 8, 2012)

‘Israeli court rejects Shalit swap delay bid’, 2011, BBC, October 17. Available online at http://www.bbc.co.uk/news/world-middle-east-15338829 (Accessed November 8, 2012).

Jakobovits, Immanuel 1962, ‘Rejoinders’, TRADITION: A Journal of Orthodox Thought, Vol. 4, Number 2, Spring: 198-205.

Kiel, Yishai 2012, ‘The morality of war in rabbinic literature: The Call for Peace and the Limitation of the Siege’, in War and Peace in the Jewish Tradition: From the biblical world to the present, edited by Yigal Levin and Amnon Shapira, Abingdon, Oxon: Routledge: 116-138.

Kimelman, Reuven 1991, ‘A Jewish Understanding of War and Its Limits’, inConfronting Omnicide: Jewish Reflections on Weapons of Mass Destruction, edited by Daniel Landes, Northvale, New Jersey: Jason Aronson Inc.: 82-99.

Leventer, Herb 2007, ‘Philosophical Perspectives on Just War’, in Lawrence Schiffman and Joel B. Wolowelsky (Eds.), War and Peace in the Jewish Tradition, New York: Yeshiva University Press: 45-92.

Peli, Pinchas H. 1991, ‘Torah and Weapons of Mass Destruction: A View from Israel’, in Confronting Omnicide: Jewish Reflections on Weapons of Mass Destruction, edited by Daniel Landes, Northvale, New Jersey: Jason Aronson Inc.: 69-81.

Scheinman, Anna 2012, ‘A just war? That’s just not Jewish, says ex-envoy’,  The Jewish Chronicle Online, October 25. Avilable online athttp://www.thejc.com/news/uk-news/88067/a-just-war-that%E2%80%99s-just-not-jewish-says-ex-envoy (Accessed November 8, 2012).

Shatz, David 2007, ‘Introduction,’ in Lawrence Schiffman and Joel B. Wolowelsky (Eds.), War and Peace in the Jewish Tradition, New York: Yeshiva University Press: xiii-xxxviiii.

Walzer, Michael 1996, ‘War and Peace in the Jewish Tradition’, in The Ethics of War and Peace: Religious and Secular Perspectives, edited by Terry Nardin, Princeton, New Jersey: Princeton University Press: 95-114.


[1] Scheinman 2012.
[2] Scheinman 2012.
[3] Scheinman 2012.
[4] Broyde 2007, p. 7.
[5] Broyde 2007, p. 7.
[6] Dorff 1991, p. 180.
[7] Kiel 2012, p. 132.
[8] Dorff 1991, p. 176.
[9] Walzer 1996, p. 108.
[10] Bleich 1983, p. 19.
[11] Maimonides, Hilkhot Melakhim 6:1 cited in Broyde 2007,  p.19.
[12] Walzer 1996, p. 96.
[13] Kiel 2012,  p. 125.
[14] Broyde 2007, p. 21.
[15] Peli 1991, p. 73. (NB. In Peli’s article the reference is incorrectly provided as Deuteronomy 20:10. I have used the correct reference.)
[16] Maimonides, Hilkhot Melakhim 6:10 cited in Kimelman 1991, p. 90.
[17] Bleich 1983, p.25.
[18] Jakobovits 1962, pp. 201-2.
[19] Leventer 2007, p. 51.
[20] Jacobs, Louis 1973, What Does Judaism Say About…? New York: Quadrangle: p.228 cited in Dorff 1991, p. 171.
[21] Walzer 1996, p. 96.
[22] Shatz 2007, pp. xiii-xiv.
[23] ‘Israeli court rejects Shalit swap delay bid’, 2011.
[24] ‘Ethics.’
[25] Broyde 2007, p. 31.