Shalom Carmy on Noah Feldman (and a Postscript)

Professor Shalom Carmy has, in typically perceptive and lucid fashion, produced a pointed and penetrating response to the challenge raised by Noah Feldman's article. Of especial note is his discussion of the question of a Jewish physician violating the Sabbath in order to treat a Non-Jew. As Carmy notes, this claim has long been a weapon in the arsenal of anti-semites. Indeed, it was used as a vicious anti-religious weapon in the fifties by secularists here in Israel.

Inter alia, Carmy writes:

An honest understanding of the Halakha about saving a Gentile on Shabbat is grounded in the fact that not all mitsvot can be violated to save life. Idolatry, sexual offenses and murder may not be allowed even to save life, however this flies in the face of our utilitarian mentality. Shabbat has much in common with the so-called “big three.” [Note R. Shimon’s view in Yerushalmi that a bystander may intervene to prevent Shabbat violation even at the cost of the transgressor’s life.] For Jews Shabbat may be violated to save life, but only on the basis of a special limmud (inference)—“desecrate one Shabbat so that he may observe many Shabbatot.” Where this principle does not apply, Shabbat is inviolable.

Where people understand that religion may on occasion make life and death demands, the law that Shabbat is so important that it is overridden only for those who are members of the community that observes it is difficult but not scandalous. In our culture this understanding is lacking; thus the failure to treat Jews and Gentiles identically will be interpreted as indifference to the fate of the non-Jew, and will be perceived as tantamount to connivance in his death. It will provoke hatred, and understandably so. In this case, the theoretical gulf separating secularists from halakhists is not universalism vs. particularism but the recognition that Shabbat is, in principle, worth the sacrifice. It is common to stress that Judaism, compared, let us say, with Hinduism, affirms the value of human life and eschews such sacrifices. That the value of human life is overridden only in exceptional circumstances is a significant element in generalizing about Jewish ethics. But an almost absolute principle is not the same as an absolute one.

In any event Feldman presumably knows very well that his high school teacher’s remark is not representative of grown-up halakhic thought, and he knows even better that it is not a guide to the practice of Orthodox Jewish doctors. Nonetheless, in his desire to satisfy himself against those who failed to properly esteem his choices and flatter his vanity, he has resorted to one of the most potent weapons of 19th-20th century anti-Semitism. He has made it easier for individuals or groups in medical schools to sideline or bar Orthodox Jews, in the name of high-sounding universalistic moral ideals, from positions in the medical profession. Whether he intends these consequences or not, and whether or not he envisions, in his wise shrewdness and genteel outrage, further punitive consequences to his classmates and their children, he has employed his power and prestige to those ends. He, and we, must live with the consequences of his decision.

Not only Feldman’s actions have consequences. There are rabbis and teachers, who sometimes feel that they must show their cleverness at any cost. At times it seems that the less they have to contribute, the more they wish to stand out. Like precocious children impressing the adults, they vie for the attention of their students with forced displays of cleverness and provocation. The point is to come up with something that nobody else would think of saying and to say something shocking and memorable. Surely the teacher whom Feldman quotes succeeded eminently in this game of pedagogical one-upmanship. He, and we, will have to live with the consequences of his judgment.

Postscript:

I recall reading that Professor Gerald Blidstein once asked the Rov if he was satisfied with the fact that Sabbath deseceration for a non-Jew was due to איבה, or the hostility toward Jews that would be thereby engendered. The Rov, reportedly, responded that while he was happy with the legal results, he found the actual argument morally unsatisfactory.

I've thought a lot about this issue lately, and I've come to two conclusions. First, any fine moral impulse must still find its expression within the terminology of the Law. Sometimes, indeed oftentimes, that terminology is somewhat jarring to the non-professional ear. Thus, making all sorts of allowances for non-observant Jews because they are 'תינוקות שנשבו' sounds paternalistic, arrogant and dismissive of the rich cultural context within which someone might have been raised. That, however, is the legal tool we have. That, however, does not mean it should be bandied about supercilliously and hurtfully. (Indeed, I've often thought we should create some sort of new category.)

The same is true, or so it seems to me, about the allowance of Sabbath violation for a non-Jew on Shabbat. As Carmy points out so well, saving a Life is not always an absolute value. Even saving a Jew on Shabbat requires special license. Recall that, according to the First Book of Maccabees (2, 32-40) there were those who fled Antiochus' decrees and were slaughtered because they thought that self-defense did not justify desecrating Shabbat. Modern society is based on absolute human autonomy, together with a very strong dose of narcissism. Thus, the idea that Human Life takes second place to anything is at best impossible, at worst, an anathema.

Jewish Law realized that the question of treating a non-Jew on Shabbat had to be addressed and allowed. Halakhah came up איבה. Yes, in marketing terms it's terrible. That, however, is not the point. The genuine, Jewish moral impulse did find a cogent, principled legal category within which to function. Halakhah doesn't operate in philosophical categories, it operates in legal categories. One might add, though, that it's not much of a stretch to go from absence of hostility to co-fraternity. Or, alternatively, who says that Hobbes was wrong? Perhaps, Hazal and Rishonim had a more Hobbesian view of man than we (ostensibly) possess? Certainly, based upon the empirical evidence, Hobbes has the competition beaten, hands down.