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Vayishlach (5770) – Moral Dilemmas

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Jacob, on his way home after an absence of 22 years, hears that Esau is coming to meet him with a force of 400 men. He is terrified. He knows that many years earlier, his brother was merely waiting for Isaac to die before he took revenge. His approach with so large a contingent of people suggested to Jacob that Esau was intent on violence. He prepares himself. As the sages noted, he made three types of preparation. First, he made provisions for war, dividing his household into two camps in the hope that one at least would survive. Then he prayed to G-d to protect him. Then he sent gifts, hoping to allay Esau’s anger.

One sentence in particular caught the attention of the sages:

“Jacob was very afraid and distressed. (32: 7)”

One of these two phrases is surely superfluous. If Jacob was afraid, he was distressed; if he was distressed, he was afraid. Why use two descriptions if one would do? This provided the springboard for a highly significant midrash:

“Jacob was very afraid – lest he be killed. He was distressed – lest he kill. (Rashi)”

Jacob’s fear was physical – the fear of death. His distress, though, was moral – the fear that he himself might be forced to kill his brother. But this, as the commentators note, is puzzling. There is a rule in Jewish law that if someone comes to kill you, you may kill him first (Sanhedrin 72a). This is a basic principle of self defence, without which there can be no right to life.

Why then was Jacob distressed lest he kill? If, in the struggle, he was forced to kill Esau to protect his own life, he would be acting fully within his rights. This is the profound answer suggested by Rabbi Shabbatai Bass (Siftei Chakhamim):

One might argue that Jacob surely should have had no qualms about killing Esau, for [the Talmud] states explicitly: “If one comes to kill you, forestall it by killing him.” None the less, Jacob did indeed have qualms. He feared that in the fray he might kill some of the Esau’s men, who were not intent on killing Jacob but were merely fighting against Jacob’s men. And even though Esau’s men were pursuing Jacob’s men, and every person has the right to save the life of the pursued at the cost of the life of the pursuer, none the less there is a provision: if the pursued could have been saved my maiming a limb of the pursuer, but instead the rescuer killed the pursuer, the rescuer is liable to capital punishment on that account. Hence Jacob was rightly distressed about the possibility that, in the confusion of battle, he might kill some of Esau’s men outright when he might instead have restrained them by merely inflicting an injury.

The rules of defence and self-defence are not an open-ended permission to kill. One is limited to the minimum force needed to protect yourself or another from danger. Jacob’s distress was that he might kill someone when mere injury would have sufficed. This is the law restricting what is nowadays called ‘collateral damage’, the killing of innocent civilians even if undertaken in the course of self-defence.

The sages heard something similar in the opening sentence of Genesis 15. The previous chapter describes Abraham’s victorious war against the four kings, undertaken to rescue his nephew Lot. We then read:

After this, the word of G-d came to Abram in a vision. He said, “Do not be afraid, Abram, I am your shield. Your reward will be very great.” (Genesis 15: 1)

The question is obvious: of what was Abraham afraid? He had just been victorious in battle. He had no cause for fear. On this, the midrash comments:

Another reason for Abram’s fear after killing the kings in battle was his sudden realisation: “Perhaps I violated the Divine commandment that the Holy One, blessed be He, commanded the children of Noah, ‘He who sheds the blood of man, by man shall his blood be shed.’ Yet how many people I killed in battle.” (Tanchuma Buber, Lekh Lekha 19).

Another midrash puts it slightly differently and more precisely:

Abraham was filled with misgiving, thinking to himself, Maybe there was a righteous or G-d-fearing man among those troops which I slew. (Bereishith Rabbah, 44:4).

What is going on in these sources? For this we need to borrow a concept from philosophy, namely, the idea of a moral dilemma. This phrase is often used imprecisely, to mean a moral problem, a difficult ethical decision. In fact it means something more specific. Moral problems are often of the form: what is the right thing to do in the circumstances? A moral dilemma is different. It arises in cases of conflict between right and right, or between wrong and wrong – where, whatever we do, we are doing something that in other circumstances we ought not to do.

The Talmud Yerushalmi (Terumot 8) describes one such case, where a fugitive from the Romans, Ulla bar Koshev, takes refuge in the town of Lod. The Romans surround the town, saying: Hand over the fugitive or we will kill you all. Rabbi Joshua ben Levi persuades the fugitive to give himself up. This is a complex case, much discussed in Jewish law, but it is one in which both alternatives are tragic. Rabbi Joshua ben Levi acts in accordance with Jewish law, but the prophet Elijah asks him: “Is this the way of the pious? [Ve-zu mishnat ha-chassidim?]

Jean-Paul Sartre, speaking of existential decisions, gave the example of a Frenchman during the war who has an elderly and ailing mother with no one else to look after her. Should he stay with her, or should he join the resistance?

Life presents us with many such decisions. They are particularly common among those in public life, who are sometimes faced with courses of action that are in the long-term public good, but with which they may feel profoundly uneasy as private individuals. There are no easy answers in such cases. If there were, they would not be dilemmas.

It is one of the tests of a moral code that it does not present moral choices as easier than they are. There are moral dilemmas. They are a fact of the moral life. There are times when a good human being, even if he or she does the right thing, will still experience (not remorse but) regret. We will still suffer pangs of conscience even though we know we are justified in what we do.

One of the most profound examples of this is the remarkable book, The Seventh Day, that emerged from discussions among Israelis after the Six Day War. Although they had achieved one of the most stunning military victories in history, the prevailing tone is one of distress that they had been forced to kill in order to defend their country and people. Never, I suspect, has a less militaristic work emerged from a victorious army.

That mood was born thousands of years earlier, when Jacob, father of the Jewish people, experienced not only the physical fear of defeat but the moral distress of victory. Only those who are capable of feeling both can defend their bodies without endangering their souls.