1. Kellner, Menachem, “Reflections on the Impossibility of Jewish Ethics,” Bar-Ilan 22–23 (1987).Google Scholar

2. For a somewhat fuller treatment of the question, see my article “Jewish Ethics” in The Encyclopedia of Ethics (New York: Garland Publishing Co., forthcoming).

3. “Some Tensions in the Jewish Attitude Toward the Taking of Human Life,” Jewish Law Annual! (1988): 97.

4. See Jackson, B., ed., Modern Research in Jewish Law (Leiden: E. J. Brill, 1980) for discussions of some methodological issues in Mishpat Ivri. Note in particular the articles by Jackson and Albeck, who draw a parallel between the methodology of Mishpat Ivri and that of the linguist, who formulates rules of grammar as an interpretation of the linguistic intuitions of speakers.Google Scholar This is analogous, too, to moral epistemology, where the moral epistemologist seeks to account for moral intuitions through ethical theory. In stressing the condition of justificationI am veering somewhat from this approach. The question of interpreting ancient texts is of course different from interpreting the putative intuitions of some hypothetical moral agent, as it is different from interpreting the linguistic conventions of the speaker who stakes out no positionon anything at all, but merely uses the language. For a sophisticated contemporary account of legal interpretation, see Dworkin's, RonaldLaw's Empire (Cambridge: Harvard University Press, 1986). Dworkin stresses what I call here the justificatory role of interpretation, although in a somewhat different way, drawing upon recent hermeneutic theory. See in particular chaps. 2 and 6—10.Google Scholar

5. B.T. Baba Mezia 62b.

6. Horayot 3:7–8.

7. See Bet Yoseph. Yoreh De'ah 251, s.v. ma she'katab.

8. Ramat Gan: Bar-Ilan University Press, 1977.

9. Sifra (Torat Kohanim), Leviticus, Be-Har 5 (in Weiss's edition, [Vienna, 1862], p. 109).

10. Besides those mentioned below in the text, they are: Minhat Hinukh, mitzva 296; Hiddushei R. Hayim ha-Levi al ha-Rambam, p. 2a; Gershuni, Rabbi Y., Responsa Kol Tsophayikh(Jerusalem, 1980), pp. 391–395.Google Scholar See the fine article “Kedemiyut ve-Adifiyut be-Hatzalat Nefashot le-Or he-Halakha” by S. Dichovsky, Dinei Yisrael, vol. 7 (Tel Aviv), pp. 45—66, in which some of these, as well as other relevant sources, are cited. Werner, Rabbi S. B, Responsa Mishpetai Shmu'el (Jerusalem, 1980), pp. 21—61, provides perhaps the most comprehensive rabbinic treatment of the issue, and all its many ramifications, that at least this author has seen.Google Scholar

11. Ha'amek She'ela. She'ilta 147:3.

12. See Hoshen Mishpat, Bava Me'tzia, Likutim 20, p. 62a. In his comments on R. Chaim Soloveitchik's Hiddushei GRAH al ha-Rambam, Hilkhot Yesodei ha-Torah, however, he seems to take another view. See R. Shmuel Vosner, Responsa Shevet ha-Levi, vol. 6, resp. 242.

13. Shelah. par. 147.

14. Ibid.

15. See Rif, Rosh, and Me'iri ad loc, in Baba Me'zia.

16. Ahi'ezer, in Yoreh De'ah 16 (Vilna, 1925), p. 35.

17. Responsa Ziz Eliezer, vol. 9, chap. 28.

18. Baba Me'zia 62b.

19. Rabbi Grodzinski relates this to the question in B.T. Baba Kamma 60b concerning saving oneself with someone else's money, and the interpretation of Rashi and the Tosafists ad loc.

20. Ozar ha-Melekh, Yesodei ha-Torah 5:5.

21. Gilyonot le-Hiddushei R. Hayim ha-Levi, Hilkhot Yesodei ha-Torah (B'nei Brak, 1974)

22. In addition to the authorities cited in the text, see also Shternbukh, R. Moshe, Responsa Teshuvot ve-Hanhagot (Jerusalem, 1986), Hoshen Mishpat, resp. 858 (pp. 301–302), who takes the same view.Google Scholar A contrary position is taken by Rabbi Y. Unterman, in Shevat Yehuda (Jerusalem, 1955) p. 18, and Rabbi Moshe S. Shapira in R. Moshe Shmuel ve-Doro (New York, 1964), p. 236.

23. This exposition of the teleologist/deontologist debate is drawn from my article “Some Tensions in the Jewish Attitude Toward the Taking of Human Life.”

24. Nagel, Thomas, “War and Massacre, Philosophy and Public Affairs 1, no. 2 (1972): 123–144.Google Scholar

25. See my “Some Tensions in the Jewish Attitude Toward the Taking of Human Life” for other instances in Jewish sources in which the teleologist/deontologist debate may be reflected. Note also Ramakh's puzzle, cited in Keseph Mishna, Mishneh Torah, Hilkhoi Yesodeiha-Torah5:5, as to why, according to Rambam, following the Tosephta and Resh Lakish in the Yerushalmi, if heathens come upon a group of Jews, and threaten the lives of the entire group unless they turn over a particular—guiltless—individual, the law is that they must all lose their lives rather than turn over the individual. As Ramakh and many others point out, this seems remarkably counterintuitive: why sacrifice so many lives, when by turning over the individual everyone else can be saved? Here, too, deontological considerations help account for this position, and other related sources.

26. The divisibility or indivisibility of the resource of which I speak here should probably be understood functionally. That is, if the liquid medication can help each one a bit if each receives half, then the resource is divisible. If, on the other hand, the medication can be divided quantitively, but there is a minimum dosage such that if one takes less than that dosage he is not helped at all, then it should not be counted as divisible if the respective portions of medication fall below the effective threshold. I am grateful to Prof. Dov Frimer for this point.

27. Presumably, in a case where two people literally on the verge of death from starvation appear simultaneously before someone with only two pennies in his pocket, even for Bel Yoseph, we have a direct analogue to the travelers case/third-party allocation.

28. Pherush ha-Mishna, ad loc.

29. Rabbi Ya'akov Emden, discussed below, draws out the same conclusions.

30. See Rambam's Pherush ha-Mishna, loc. cit.

31. J.T. Horayot 3:7.

32. For additional evidence of the category of talmid hakham, see: (1) Baba Me'zia 2:11, which decides that if one's father and rabbi are in captivity, the rabbi should be redeemed first, unless the father is a hakham; (2) B.T. Baba Batra 8a, where Rabbi Yehuda ha-Hanassi provided food from his storage houses during a famine only to those learned in the Torah; (3) the Tosephta in Horayot, cited above, according to which saving a hakham takes precedence over saving a king.

33. Cf. Rashi ad loc.

34. See, e.g., the comments ad loc. of Rambam, R. Obadiah of Bartenura (Pherush ha- Ra'av), and Tiferet Yis'rael.

35. B.T. Sanhedrin 32b.

36. B.T. Baba Me'zia 71a.

37. See, for example Tur, chap. 251, where an intrafamily hierarchy is worked out, i.e., self before father and mother, who in turn take precedence over children, and so on. While this is not a rabbinic-period source, generalizing as the Tur did seems safe even as an exercise in rabbinic interpretation.

38. Ibid.

39. B.T. Baba Batra 8a.

40. Tur, chap. 251.

41. Pilhei Teshuva, ad loc, cites Resp. Yad Eliyahu, resp. 43, who disagrees with the Shakh

42. Perek “Even Bohen,” pinah aleph.

43. It should be noted that Rabbi Emden's view is a minority one; almost all other treatments of the subject do use yihus categories. See the various responsa cited throughout this paper. Nevertheless, that such a view is entertained by as important a figure as Rabbi Emden is quite significant. His position is echoed in the responsa of Rabbi Moshe Feinstein, discussed below.

44. One might suggest, of course, that this is not an instance of the talmid hakham category, but either a new category altogether or an important conceptual revision of the category that reflects not only Torah learning but piety.

45. It has been suggested that a parallel to this last category can be found in the works of Rabbi Yehuda he-Hasid (see Dichovsky, op. cit., p. 63). It seems clear, however, that Rabbi Emden took the positions he did on the basis of reason rather than by appeal to the authority of anyone else.

46. Feinstein, Rabbi M., Igrot Moshe, Hoshen Mishpat, vol. 3 (New York, 1985), resp. 73, 74Google Scholar; Hershler, Rabbi M., Halakha u-Refu'ah, vol. 4 (Jerusalem, 1985), pp. 79–84Google Scholar; Vosner, Rabbish., Responsa Shevet Levi, vol. 6 (B'nei Brak, 1986), resp. 242Google Scholar; Nishmat Awaham, vol. Yoreh De'ah (Jerusalem, 1986), p. 156.

47. Hershler, op. cit., p. 84.

48. Feinstein, op. cit., p. 304.

49. Ibid. Although the text is somewhat unclear, it is possible that Nishmat Avraham, cited above, takes the same position.

50. Ibid., p. 312.

51. In this respect, Rabbi Feinstein may differ from such authorities as Rabbi Unterman, cited above in n. 22.

52. There is an enormous amount of literature dealing with the problem in legal and particularly philosophical sources, and to cite even the most important studies here would be excessive. The best summary and bibliography I am aware of is in Mehlman's, Maxwell J.“Rationing Expensive Lifesaving Medical Resources,” Wisconsin Law Review, 1985, no. 2, pp. 239–303.Google Scholar

53. I recognize that Rabbi Feinstein's reasoning is not deontological (although it is consistent with deontologism). My point is that the practical position he takes is one that would in some important respects follow from deontologism/egalitarianism. I am grateful to Prof. Dov I. Frimer for referring me to a number of the contemporary responsa cited in this paper, and for his insightful comments on an earlier draft. Dr. Ronnie Warburg also made several valuable suggestions. Abridged versions of the paper were read before the New York Jewish Theology Group and the Association for Jewish Studies Conference in Boston. The comments I received on both those occasions proved most helpful.