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  • Ian Gamse

Halakhic Danger

Updated: May 4, 2021


When did we abandon Health & Safety?

By Ian Gamse

A few years ago, I was fortunate enough to attend a lavish party at a newly-opened Jerusalem hotel. The food and drink were outstanding: an array of stalls around the ballroom, each serving some plated or jugged temptation. As I traced a somewhat random (and probably increasingly erratic) path from one to the next, I discovered that at each food station I was required to hand in my dirty plate and accept a new clean one. I enquired why this was, expecting to be told that it was one of the ever more ludicrous demands of the “brand standards”, only to discover that no, it was the rule of the kashrut supervisor. For some stalls were serving meat and others – no, don’t be ridiculous, not milk chas veshalom – fish; to guard against the terrible possibility that someone might mix the two on a plate, all plates were constantly changed.[1] And that meant that the stock of plates and the amount of washing up were about five times what they otherwise needed to be.

The mashgiach was of course only doing his job. Chapter 116 of the Yoreh Deah section of Shulchan Arukh (that’s the one after supervised milk) deals with “things that are forbidden because they have been left uncovered”. Well, it starts with that – liquids that have been left uncovered were forbidden by the talmudic sages as they might have been sampled by a snake; but R. Yosef Karo rules that as we “now” don’t have a snake problem the prohibition is rescinded.[2] The second paragraph deals with eating meat and fish together, which is apparently a cause of leprosy. The wording is interesting – not asur, “forbidden”, but tsarikh lizaher, “one should avoid”. And even at great expense, we did.

The chapter continues with other things that should be avoided because they are dangerous – like putting a coin in one’s mouth or leaving a knife in a dangerous place. And then R. Moshe Isserles (“RaMA”), whose glosses on the Shulchan Arukh are authoritative at least for Ashkenazim, writes[3]:

וכן יזהר מכל דברים המביאים לידי סכנה כי סכנתא חמירא מאיסורא ויש לחוש יותר לספק סכנה מלספק איסור (ב"י בשם הש"ס) ולכן אסרו לילך בכל מקום סכנה כמו תחת קיר נטוי…

Similarly, he should be careful of all things that bring one into danger, because danger is treated halakhically more strictly than prohibition, and one should be more worried about a possible danger than about a possible prohibition (Bet Yosef citing the Talmud in Hullin 9a-10a). They therefore prohibited going to a dangerous place, such as under a leaning wall…

I started writing this piece thinking about the way in which some parts of the Jewish community behaved during the pandemic. This week's dreadful events made me realise that there is a bigger problem.

The Times of Israel reports:

Past reports surface that warned of potential for chaos and tragedy at Meron

As the hours pass from the tragedy, more and more information is coming to light about the many warnings issued by various authorities over the years, from senior traffic cops to the state comptroller, about the potential for chaos and disaster at the Meron site.

The various reports reveal that by standard police safety regulations for public gatherings, the site should not have been permitted to hold more than about 15,000 people. Officials have estimated the crowds at the site last night at over 100,000.

Commander Ilan Mor, head of the operational branch of the national traffic police, produced a document in 2016 titled, “Meron celebrations: Erasing the writing on the wall.”

The internal police document analyzes past tragedies caused by overcrowding at public events, including disasters and near-disasters at Meron itself, and concludes that the infrastructure at the Meron holy site could not safely accommodate the numbers of worshipers that attend each year at Lag B’Omer.

In the report, Mor calls to limit the number of people attending and to appoint a single organizer to manage the site, instead of allowing each Hasidic sect to run its own area.

Similarly, a 2008 state comptroller report warned of a “systemic failure at the Rashbi compound [at Meron]” due to “many different authorities all involved in its management,” a chaotic situation that would lead to harm to the holy site and endangered the worshipers.[4]

So how is it that the religious community – and it’s not only Charedim at Meron – never thinks to ask whether it’s safe? R. Yosef Karo thought the principle that “danger is stricter than prohibition” is so obvious (his wording in Bet Yosef) that it didn’t need stating here in the Shulchan Arukh which is generally a digest of the Bet Yosef. And for “leaning wall” in RaMA’s note read “slippery stairs”. But whoever the organisers are, they did not think to conduct a risk assessment; and all the rabbinic leaders who encouraged their followers to go never cared that they might be sending them into danger. I saw that one major Rosh Yeshiva told his students not to go to Meron because that is not the Litvish way; I have not heard of any who said not to go because the Torah forbids putting oneself into danger.

Why is the clear instruction of the Shulchan Arukh so easily ignored? Could it be that the very simplicity of the instruction is its downfall? After all, in areas of ritual such as kashrut where the laws of safek (“halakhic uncertainty”) play out, there is a vast and complex literature which can occupy the rabbinic mind for a lifetime. The laws of avoiding dangerous situations are mentioned in passing in Orach Chayyim 90:6 and here in Yoreh Deah 116 – but there’s nothing to write about. Just (don’t) do it. Or maybe it’s because the assessment of danger is something that needs expertise which is outside the rabbinic purview and thus seen as something alien to Torah. Or maybe (God forbid) there is an element of “God will protect the innocent”.

So perhaps we should all learn from RaMBaM (R. Moshe Maimonides) who includes these laws in the section of Mishneh Torah entitled “Laws of the Murderer and the Preservation of Life”. After detailing the obligation to put a fence around a flat roof “lest the faller may fall from it”[5], he continues:

אֶחָד הַגַּג וְאֶחָד כָּל דָּבָר שֶׁיֵּשׁ בּוֹ סַכָּנָה וְרָאוּי שֶׁיִּכָּשֵׁל בָּהּ אָדָם וְיָמוּת. כְּגוֹן שֶׁהָיְתָה לוֹ בְּאֵר אוֹ בּוֹר בַּחֲצֵרוֹ בֵּין שֶׁיֵּשׁ בּוֹ מַיִם בֵּין שֶׁאֵין בּוֹ מַיִם חַיָּב לַעֲשׂוֹת חֻלְיָא גְּבוֹהָה עֲשָׂרָה טְפָחִים. אוֹ לַעֲשׂוֹת לָהּ כִּסּוּי כְּדֵי שֶׁלֹּא יִפּל בָּהּ אָדָם וְיָמוּת. וְכֵן כָּל מִכְשׁל שֶׁיֵּשׁ בּוֹ סַכָּנַת נְפָשׁוֹת מִצְוַת עֲשֵׂה לַהֲסִירוֹ וּלְהִשָּׁמֵר מִמֶּנּוּ וּלְהִזָּהֵר בַּדָּבָר יָפֶה יָפֶה. שֶׁנֶּאֱמַר (דברים ד ט) "הִשָּׁמֶר לְךָ וּשְׁמֹר נַפְשְׁךָ". וְאִם לֹא הֵסִיר וְהֵנִיחַ הַמִּכְשׁוֹלוֹת הַמְּבִיאִין לִידֵי סַכָּנָה בִּטֵּל מִצְוַת עֲשֵׂה וְעָבַר בְּ(דברים כב ח) "לֹא תָשִׂים דָּמִים":

הַרְבֵּה דְּבָרִים אָסְרוּ חֲכָמִים מִפְּנֵי שֶׁיֵּשׁ בָּהֶם סַכָּנַת נְפָשׁוֹת. וְכָל הָעוֹבֵר עֲלֵיהֶן וְאוֹמֵר הֲרֵינִי מְסַכֵּן בְּעַצְמִי וּמַה לַּאֲחֵרִים עָלַי בְּכָךְ אוֹ אֵינִי מַקְפִּיד בְּכָךְ מַכִּין אוֹתוֹ מַכַּת מַרְדּוּת:

There is no difference between a roof or anything else that is dangerous and likely to cause death to a person who might stumble. If, for instance, one has a well or a pit in his courtyard — he must build an enclosing ring ten handbreadths high, or put a cover over it, so that a person should not fall into it and die. So too, any obstruction that is a danger to life must be removed as a matter of positive duty and extremely necessary caution.

The sages have prohibited many things because they are dangerous to life. If anyone disregards them and says : “I am endangering myself – why should that concern anyone else?” or “I don’t worry about these things” he is subject to the punishment of flogging for disobeying a rabbinic ordinance.[6]

and then

וְכֵן לֹא יִנְעֹץ הַסַּכִּין בְּתוֹךְ הָאֶתְרוֹג אוֹ בְּתוֹךְ הַצְּנוֹן שֶׁמָּא יִפּל אָדָם עַל חֻדָּהּ וְיָמוּת. וְכֵן אָסוּר לָאָדָם לַעֲבֹר תַּחַת קִיר נָטוּי אוֹ עַל גֶּשֶׁר רָעוּעַ אוֹ לִכָּנֵס לְחֻרְבָּה. וְכֵן כָּל כַּיּוֹצֵא בְּאֵלּוּ מִשְּׁאָר הַסַּכָּנוֹת אָסוּר לַעֲבֹר בִּמְקוֹמָן:

Similarly, one should not stick a knife through an etrog or a radish in case someone falls on the blade and dies. And similarly, it is forbidden to walk under a leaning wall or on a tottery bridge or to enter a ruin. And it is forbidden to expose oneself to any similar danger.

Today’s tragedy was not caused by “baseless hatred” or any other of the shibboleths loved by preachers. It was caused by a systemic failure to deal sensibly and halakhically with risk. The halakha is clear. So where are the halakhists?

Ian Gamse London, Lag ba’Omer 5781

[1] The party might have been even more lively if they had insisted that everyone drink between each course! [2] The TaZ, one of the standard commentaries to Yoreh Deah, is forced to explain how this abandonment of an earlier prohibition is technically permissible. [3] Hebrew texts courtesy of Sefaria; translations based on those provided by Sefaria, improved (I hope) by me. [4]Times of Israel, 30th April 2021 [5] Devarim 22:8 [6] Hilkhot Rotseach 11:4-5

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