This shiur was inspired by Rav Yehudah Copperman’s קדושת פשוטו של מקרא, דין פיקוח נפש במצוות הצלת נפש מישראל but basically is my understanding of the Yarchei Kallah presented last week by the St. Louis Kollel, by Rav Shlomo Cynamon: אסור להציל עצמו בממון חבירו. Any errors are mine, not his.
We’re going to start with a vignette from תנ״ך. שמואל ב פרק כג is the list of הגברים אשר לדוד, David’s band of warriors from his bandit king days.
The gemara wonders why this story is in a ספר נבואה like שמואל, and says that this really was a halachic/ethical question. David is at war with the Philistines who are hiding in the field. David can burn them out, win the battle and save Israel. But fires are uncontrollable. He will burn down the fields of the people of Yehudah whom he is supposedly helping. אין מים אלא תורה; the nearest בית דין is in Bethlehem.
They answer אסור להציל עצמו בממון חבירו. If I desperately need something that you have, even in a life-or-death situation, the Torah says I cannot take it from you. However, the king is different; he can take whatever he deems necessary (the law of eminent domain). Tosafot are bothered by this; doesn’t פיקוח נפש override other laws like לא תגנוב? So they weaken the question to one about reimbursing you later:
However, the gemara doesn’t say this, and Raavad (whom we will quote later) takes it literally. פיקוח נפש does not allow taking from others. Now, there may be an obligation for you to give to me, to save me:
But that doesn’t mean I can take it.
The other point is very important: the Torah doesn’t define what it means to have something. The implication of מלך פורץ לעשות לו דרך and similar rules like הפקר בית דין הפקר and דינה דמלכותא דינה means that, while the halacha protects property rights, society gets to define what “property” and “rights” mean. The king can decide: right now, you don’t own that any more. And that applies to anything we might consider “having”: money, land, objects, human beings, positions of authority, body parts, even our own lives. We talked about this in the context of R' Shimon Shkop’s approach to financial halacha. Similarly, the gemara describes Yehoshua’s civil laws that he established when Israel first came into the land:
In other words, אסור להציל עצמו בממון חבירו may be technically true, but Yehoshua’s law says I can destroy your vineyard to save myself.
Rav Cynamon addressed a טעמי המצוות question: why doesn’t פיקוח נפש allow me to take whatever I need? He starts with Rabbi Meir Simcha from Dvinsk.
I’m a דרשן kind of person, so I like the משך חכמה, but we have to acknowledge both sides, so I will cite the אור שמח as well.
This actually does connect to our parasha:
We do not force anyone to put their life in danger, however remote, to save others. They can volunteer, but the Torah will not force them to do so. And the Or Sameyach argues that this is true for body parts as well. The Torah does not demand that we risk injury even to save another life. You cannot steal my kidney.
Rav Cynamon puts all this together by using a term from American jurisprudence: the right of privacy.
A right of privacy in this sense doesn’t mean that what I do is secret from the public, but that there are certain things about which I can make decisions that are not controlled by the government. It is what I called before “property rights”. The Torah says that you have your own domain, and I cannot deprive you of that against your will. The underlying halachic principle is that this right exists, and when בית דין imposes גזרות that limit it, even if it is necessary for תיקון עולם, we need to realize that something has been lost.
That is the message of כי מתו כל האנשים המבקשים את נפשך. בני ישראל cannot demand that Moshe sacrifice anything. His rights as a human being demand that he make his own decisions.