Michael A Grodin, Johnathan I Kelly, Erin L Miller, Robert Kirschner, Joseph Polak. Modern Judaism: A Journal of Jewish Ideas & Experience. Volume 39, Issue 3. October 2019.
In this article, we examine in detail a set of little-known texts arising from the Holocaust: the decisions given by rabbis in response to cases where the Germans and their collaborators attempted to force Jews to decide who among them would live and who would die. The genre that these decisions fit into is known as rabbinic responsa: the written decisions of rabbinic authorities on questions of law and practice in daily Jewish life. Rarely studied by historians of the Holocaust, the questions brought to rabbis, and the advice and answers they gave, provide a close-up and rare glimpse into how Jewish communities responded at the time to the attacks on their lives, and provide telling witness of the Nazi attempt to make European Jews the agents of their own destruction.
The purpose of our study of these rabbinic texts is to shed light on an attitude held by many Jews during the Holocaust but one very rarely explored: the outlook of those Jews for whom Jewish law (halakhah) continued to structure the decisions they made, even in the ghettos and camps where they were daily confronted with seemingly irresolvable dilemmas. In examining the questions brought to the rabbis and their responses, our aim is to demonstrate the degree to which the rabbis and ordinary Jews found within the Jewish legal tradition sufficient resources to face an unprecedented set of dilemmas and to confront an enemy fixed on their total destruction. What we ultimately hope to explore in this article is the nature of a profound form of Jewish resistance during the Holocaust: the mindset of those Jews who, by steadfastly seeking to determine and to do what Jewish law required of them, withheld from the Germans and their collaborators something they passionately wanted, namely, the corruption and degradation of Jewish self-worth and identity.
The Life-for-Life Problem in Holocaust-Era Responsa
In September 1941, three months into the German occupation of Lithuania, the German authorities gave the Jewish Council of the Kovno ghetto five thousand “labor cards” and ordered the Council to distribute the cards among the population of 27,000 Jews in the ghetto. With the recent deportations and killings still fresh in their memory, the Jewish Council could only assume that the Germans’ plan was to deport and murder those who did not receive a labor card. According to Rabbi Ephraim Oshry, members of the Kovno Jewish Council approached him for advice, asking him whether Jewish law permitted them to comply with the order and distribute the cards. How should the Council proceed, they asked Rabbi Oshry, when complying with the Germans’ order would likely be followed by the deportation and murder of those who did not receive a card, but refusing to distribute the cards could result in a reprisal and the deaths of an even larger part of the community?
Faced with similarly tragic choices, individual Jews in the ghettos and camps also sought out the counsel of rabbis. In late 1944, on the eve of Rosh Hashanah, 1,400 boys of less than a certain height were singled out for death at Auschwitz. Imprisoned in the camp, the father of one of the boys selected for death approached Rabbi Zvi Hirsch Meisels to ask whether it was permissible to ransom his son, when doing so would almost certainly lead to another boy being taken and murdered in his son’s place. “Rabbi! My only son, my dear one so precious to me, is over there among the boys condemned to be burned; and I have the ability to ransom him. Yet we know without a doubt that the kapos [the guards] will seize another in his place. Therefore I ask of the rabbi a question of law and practice: according to the Torah, am I permitted to save him? Whatever you decide, I will do.”
In need of advice or simply a listening ear, many Jews could not access the counsel of rabbis, nor of anyone else, to discuss what to do. Nevertheless, when there was a window to do so, many Jews in the ghettos and camps sought out the advice and counsel of the rabbis, as Jews always have throughout the generations. Rabbis, responding to those who came to them in the midst of an unprecedented persecution and genocide, stood firm in looking to sources within Jewish law and tradition to provide guidance, as rabbis have always done.
Living under the same set of circumstances as those who came to them with questions, often without the books or even the writing materials needed to compose a reply, the rabbis gave most of their decisions orally, in conversation. As a consequence, relatively few documents recording these decisions made during the Holocaust have survived. But records of some of these decisions have been handed down to us.
The rabbinic responsa we discuss in this article address situations that occurred during the Holocaust involving the sparing and surrendering of life. The permissibility of surrendering some to spare others has long been debated throughout the history of Jewish law. Such cases, where the saving of one or more lives will almost certainly result in the loss of other lives, are cases of the “life-for-life problem” in Jewish law.
While our focus here will be on life-for-life responsa, Holocaust-era responsa address much more than the life-for-life problem. Since Jewish law covers all aspects of daily life, and since the Nazi occupation brutally targeted every element of Jewish existence, Jews brought a very wide range of questions to rabbis. Giving up on the commandments governing daily life was not an option. But in the face of death, hunger, and disease, observant Jews across Europe were forced to grapple with how to preserve their own lives—of how to maintain the principle governing Jewish life that “one should live by the commandments, but not die by them.”
The rest of our article will proceed as follows. We will begin by providing a picture of the process of rabbinic decision-making that led to the responsa. We focus in the first part of this article on the Kovno ghetto and Rabbi Oshry, whose memoir of the ghetto years and whose five-volume collection of responsa, From Out of the Depths, provides a very broad picture of the questions rabbis responded to during the Holocaust. We will then offer an overview and analysis of four responsa on life-for-life cases. First, we will examine a responsum by R. Oshry addressing the situation in Kovno when a group of yeshiva students was being held captive by the Germans’ Lithuanian collaborators. In determining whether they should intervene to rescue the students, R. Oshry’s responsum takes up the question of whether one should endanger one’s own life to save the life of another, and indeed, if one is obligated to do so. We then turn to the case of the labor cards brought to R. Oshry, introduced at the beginning of this article. The third responsum we will examine is one by Rabbi Shimon Efrati, who addresses the case of a group in hiding, who in order to thwart detection by the Germans silence the cries of an infant, who is suffocated in the process. Approached after the war, R. Efrati explores the question of whether those Jews in hiding bear guilt for inadvertently suffocating the child. The fourth and final responsum addresses the case brought to Rabbi Meisels about ransoming one’s son, which we presented at the beginning of this article.
Origins of Holocaust-Era Responsa
Rabbi Ephraim Oshry, whose Holocaust-era responsa we will examine in detail below, provides a vivid, personal account of Jewish life in Kovno before, during, and after the German invasion in his memoir The Annihilation of Lithuanian Jewry. Rabbi Oshry also bears witness in the responsa themselves to the resiliency of religious life and Jewish law among the Jews of Kovno. As R. Oshry recounts in his memoir, Jewish religious life and its leadership had long formed the center of Jewish life in Kovno for both the observant and non-observant. In Kovno and throughout Europe, European Jews, religious and non-religious, lived in close proximity to the Jewish calendar and to Jewish custom and law, as a guide to daily life. The centering of the daily life of the average Jew on the Jewish calendar and customs continued in the ghettos and camps. In addition, Jewish holidays were observed despite the special set of prohibitions and acts of brutality that the Germans designed especially for these occasions.
Despite being a special target of persecution and destruction by the Nazis and their collaborators, in Kovno, as in many other cities throughout Eastern Europe, Jewish religious life remained prominent throughout the ghetto years. Indeed, continued clandestine existence of religious life in the ghettos stood as a profound center of resistance for the Jewish community. In addition to closing down all houses of worship, study, prayer, and ritual cleansing, and prohibiting all religious gatherings, the Nazis and their collaborators made religious Jews the most vulnerable to anti-Jewish persecution and violence.
As R. Oshry and members of the Kovno Jewish Council recorded in their memoirs, Kovno’s rabbis and religious leaders remained highly respected in their communities and were regularly sought out for advice. The religious leadership also maintained good, active relations with the underground movement in Kovno, with the partisans, and with the community at large. In Kovno and in many of the other ghettos, the Jewish councils, the resistance, and individual Jews looked to rabbis for leadership and advice, for comfort and a listening ear for their uncertainty, pain and grief. Much as before, the courage and integrity of the rabbis continued to lead, sustain, and give hope to the Jewish community.
Responsa, a Latin term meaning “answers,” is the branch of rabbinical literature comprised of authoritative replies (traditionally in letter form) written by rabbis and noted Jewish scholars in response to questions sent to them. Rabbis record both question and answer—she’elot (questions) and t’sheuvot (answers)—in epistolary form. After receiving a question, or perhaps formulating one for themselves, the author of a rabbinic responsum undertakes a study of the relevant sources in Jewish law, sometimes consults with other rabbis and scholars on the question and the sources, then composes a responsum which records the question to be decided on, identifies and discusses the relevant sources, argues for an application of the sources to the current case, and issues a decision. The skill in reaching the legal decision lies in the breadth of knowledge needed to marshal the relevant sources, integrate them, and then subject their application to rigorous logical scrutiny.
In the Holocaust responsa, as in all rabbinic literature, differences of opinion are considered not only legitimate but vital to the development of Jewish law. Thus as we will see below, the rabbis argue for and against specific interpretations, in particular regarding the applicability of a distinct ruling or principle (and perhaps its opposite) to the case in question, to determine what the Torah requires.
In most cases, the decisions recorded in responsa are made after consulting other rabbis and referencing classical sources. But during the Holocaust decisions had to be made without adequate access to sources or colleagues. Additionally, these decisions were made under the most extreme circumstances of hunger, suffering, and personal tragedy. Thus, the degree to which Holocaust-era responsa serve as legal precedents is a difficult question which continues to be debated.
Like the vast majority of the Jews of Europe during the Holocaust, R. Oshry had very little access to the sources in Jewish law normally consulted when issuing responsa. Instead, he was forced to rely mainly on his memory of the sources at the time he issued his judgments. Despite being the appointed custodian of what the Germans named the “Jewish book warehouse,” a collection of sacred books and objects that he had originally helped to collect and preserve in secret in the early months of the ghetto, R. Oshry was only able to record the questions he was asked and the judgments he gave in very brief notes written on scraps of paper from cement sacks. In 1944, when the total destruction of the ghetto seemed imminent, R. Oshry placed these scraps of paper in bins and buried them in the ghetto. He then went into hiding in an underground bunker with very little food and water. After spending over 30 days in the bunker, fearing for his life and thinking that all hope was lost, R. Oshry came out of the bunker to find that the Germans had fled after the Red Army had arrived. He then went to the place where he had buried the bins and found them still there, intact. R. Oshry took his notes and began filling out his decisions into complete responsa shortly after Kovno was liberated by the Russians in August 1944.
The Risking of One’s Own Life to Save Another
The first responsum we will discuss is one from R. Oshry’s collection of Holocaust-era responsa, She’elot u-teshuvot mi-ma’amakim (Questions and Answers From Out of the Depths), published in five volumes from 1959 to 1976. Soon after the Germans occupied Kovno and began persecuting and seizing Jews throughout the city, R. Oshry, along with a group of rabbis, had to decide whether they were obligated or even permitted to risk their lives in order to rescue a group of yeshiva students who had been kidnapped by the Lithuanian militia.
The chaos and cruelty of the first weeks of the German occupation of Kovno led R. Oshry and the religious leadership to urgently ask themselves what, if anything, they should do in order to save the lives of the students. This was not a simple decision in either pragmatic or ethical terms since it was a possibility, if not a certainty, that the kidnapping of the yeshiva students was aimed at luring more Jews, and especially Jewish religious leaders, into the hands of the Lithuanian militia. At the time, R. Oshry and several other rabbis were in hiding at the home of the head of the Slobodka yeshiva, Rabbi Avraham Grodzensky.
Out of this situation the following question arose for R. Oshry and the others: Is it permissible, according to Jewish law, for one or more of the rabbis to go to the Lithuanians in an attempt to persuade them to negotiate the release of the yeshiva students? It was conceivable that the rescuers would themselves be seized and murdered in such an attempt. Under such circumstances, the question ran, was it permissible, much less obligatory, to endanger their lives in order to save the students’ lives?
The case is thus one of what is permissible or obligatory to do when the life of another is in danger, a question discussed at great length throughout the history of Jewish law. R. Oshry’s discussion of the case focuses on two closely connected rabbinic teachings: (1) the principle of “do not stand idly by the blood of your neighbor,” and (2) the principle of “who knows whose blood is redder?” In his responsum, R. Oshry shows how rabbinic authorities agree that the principle “do not stand idly by the blood of your neighbor” affirms that a person is obligated to save another from danger. The duty to rescue, to “not stand idly by,” indicated that he and the others were indeed obligated to try to intervene to save the students from danger. In the central discussion of his responsum, R. Oshry argues that in the major rabbinic precedents, the question of whether lives are in possible, likely, or certain danger determines how the two principles apply.
He begins by analyzing two related Talmudic texts in which the teachings of “do not stand idly by” and “who knows whose blood is redder?” are vividly considered. The first text, in the Babylonian Talmud (BT) Sanhedrin 73a, discusses the legal obligation to act in order to save the life of someone in grave danger. In the second text, BT Sanhedrin 74a, it is less clear that risky intervention to save another’s life is in fact obligatory. This second text, with its closing question of “who knows whose blood is redder?” may actually suggest the opposite, that is, that it may not be permitted to risk one’s own life to save someone else’s.
The relation between the two sets of teachings mirrors in a clear way the two sides of the dilemma Oshry saw facing the rabbis: whether to intervene, which could save the lives of the yeshiva students but could also easily lead to more loss of life; or whether to remain in hiding and not send an advocate, despite the likelihood that the yeshiva students would be killed if no one intervened on their behalf.
Oshry looks carefully at both Talmudic texts. “From where do we know,” reads the first text, “that if one sees one’s fellow drowning in a river, or if one sees a wild beast ravaging [a fellow] or bandits approaching to attack him, that he is obligated to save [the fellow]? Scripture teaches: do not stand by the blood of your friend.”
Oshry then observes that the duty to rescue those in danger is grounded on the more general duty in Jewish law, to preserve life, including one’s own. Thus, after discussing the duty to rescue R. Oshry next turns to a discussion in the Talmud which affirms the value of all human life. He discusses at length a central passage in tractate Sanhedrin74a, writing:
Having assumed that one must sacrifice his life rather than commit murder, the Gemara now cites the source for this law. And from where do we know this law itself, that a would-be murderer must sacrifice his life rather than commit murder? It is based on reasoning, as we can see from where that man came before Rabbah and said to him, ‘The governor of my town told me, Go kill so-and-so, and if you do not kill him, I will kill you. What shall I do?’ [Rabbah] said to him: ‘Let him kill you, and do not kill anyone, for who says that your blood is redder than that of your victim? Perhaps the blood of the man whom they want you to kill is redder than yours!’ In other words, since nobody can determine whose life is more precious to God, it is forbidden to take one life in order to save another.
After bringing to light the potential conflict between a duty to save lives and a duty to not take lives in order to spare others, R. Oshry now addresses the case of the yeshiva students. Many rabbinic authorities have interpreted Sanhedrin 74a to mean that just as one should not kill another to save one’s self, so one cannot give up one’s own life in order to save someone else’s, since we cannot determine if one’s own life in fact has greater value. Two issues emerge: the prohibition of taking another’s life to save one’s own, and whether it is permissible to gravely risk one life to save another.
Oshry argues that the “who knows whose blood is redder” teaching is not meant to lead to indecision about whether to intervene in a given situation. He points to how the two passages indicate situations with different levels of risk. He argues that “Do not stand idly by” refers to situations where there is little danger to the life of the saver, cases like the one imagined in the text, where there is minimal risk to oneself when stepping into the river to save someone who is drowning. Such a case, he argues, where the risk to one’s own life by intervening is minimal, is where the principle of “Do not stand idly by the blood of your neighbor” applies and one is obligated to intervene.
Since all life has equal value, we must work to preserve life. But in the case where one’s life would be put at significant risk for trying to save another, is one truly permitted or obligated to intervene? On this reading of the principle of “who knows whose blood is redder?” R. Oshry concludes that in the case of the yeshiva students, it would appear that it is forbidden for the rabbis to approach the Lithuanians on behalf of the students, since doing so could endanger more lives. R. Oshry thus stresses the importance of determining the level of risk involved: is one putting oneself in possible, likely, or certain danger by intervening? In discussions of cases of certain danger in rabbinic literature, it is considered forbidden for one to intervene. Martyrdom is thus placed within severe limits in the rabbinic tradition.
Oshry argues that the case of intervening on behalf of the yeshiva students is a case of someone placing himself in possible danger, but not certain danger, for the purpose of saving others who are in certain danger. In other words, there is a possibility, but no certainty, that the Lithuanians would seize them if approached. But it is close to certain that the lives of the yeshiva students will be lost unless an attempt to save them is undertaken. In such a situation, R. Oshry suggests that it may be permissible to place oneself in danger and intervene, based on the principle of “do not stand idly by the blood of your neighbor.” But this principle does not obligatethem to intervene, it must be stated, since by going to the Lithuanians one is risking one’s own life, and one’s own life is also of value, as the teaching “who knows whose blood is redder?” demonstrates.
Oshry now takes on the major legal distinction between what is obligatory versus what is permissible. While it is clear to R. Oshry that it is permissible to intervene with the Lithuanians in order to prevent the killing of the yeshiva students, he concludes by taking up two related questions which the case raises. First, he asks, even though the law may not require one to intervene, are there times when a person shouldendanger himself to save others? And second, R. Oshry asks, can a person chooseto endanger himself if he so desires, even if the danger to his life is probable or certain?
To address both questions, R. Oshry first cites a nineteenth century Lithuanian rabbinic discussion, arguing that situations should be carefully weighed and that it is not always desirable to be overly protective of oneself. In other words, depending upon the gravity of the situation, it might be permissible for a person to place himself at risk. Thus, while one is not obligated to place himself in a dangerous situation, it could be considered noble for one to do so. Additionally, R. Oshry argues, one is permitted to be pious and take on a higher degree of obligation because, with respect to saving life, one may be permitted to risk his life even when the law does not obligate him to do so.
These considerations bring R. Oshry to the conclusion that, while one is not obligated to endanger himself, he may choose to do so if he is a person of strong and serious character. In a spirited paragraph towards the end of his responsum, R. Oshry adds that since the very existence of the Torah depends on yeshiva students, and the aim of the Germans was to destroy the body and soul of the Jewish people, each Jew has an obligation to do whatever he can to save yeshiva students so that the light of the Torah will not be extinguished. R. Oshry thus ruled that while risking one’s own life is not required it may occasionally be permissible, and in the case of intervening on behalf of the yeshiva students, it is the praiseworthy course of action.
In a postscript to his responsum, R. Oshry notes that Rabbi David Itzkowitz followed R. Oshry’s advice and approached the Lithuanians. R. Itzkowitz succeeded in this brave effort and convinced the Lithuanians to release the students. He himself was unharmed in the process, and the students were freed. Tragically, R. Itzkowitz himself was later deported and died at Theresienstadt.
This responsum is an example of a rabbinic decision that helped to determine which course of action should be taken. In his responsum, like the one on the labor cards discussed below, R. Oshry proceeded very carefully through the major legal texts, determined which principles and precedents were of most relevance, and then proceeded to make his judgment on the basis of these legal texts, the circumstances at hand, and his own personal ethical sense. While R. Oshry’s ethical sense never abandons the sources, it is nonetheless fair to assume that his argument supporting risking one’s life is a measure of his ethical instinct to do more than the law requires. Indeed, his responsum carefully addresses the important ethical question: What is a person’s duty to save another’s life, and then, what are the limits of such a duty?
The Decision of Whether to Distribute Labor Cards and Thus Determine Who Would Be Spared Deportation
The next responsum we discuss is also from R. Oshry’s collection From Out of the Depths. In this responsum, R. Oshry addresses one of the most difficult decisions forced upon almost all Jewish communities in the ghettos during the Holocaust: whether to comply with orders from the German authorities that would likely determine who would remain in the ghetto and who would be deported and killed, and hence who would live and who would die. In this particular case, R. Oshry was asked whether it was permissible for the Jewish Council in Kovno to distribute labor cards given to them by the Germans, knowing that those who did not receive a card would likely be rounded up in a selection, deported, and murdered. Here, as in many other instances, the Jews were engaged by the Nazis to administer their own murder.
The facts were that on September 15, 1941, three months after the Germans occupied Lithuania, the local German authorities ordered the Kovno Jewish Council to distribute five thousand labor cards to workers in the ghetto and their families. A member of the Kovno Jewish Council, Leib Garfunkel, provided a first-hand account of the decision facing the Kovno Jewish Council:
We were well aware of the Germans’ purpose in having us distribute those grim white certificates. So we were faced with the tragic question of how to distribute them. Were we to accept the fact that death transports awaited all the intellectuals, the women, and the little children in the ghetto? A terrible dilemma confronted us. Suddenly an idea was presented—I do not know by whom—to burn all the certificates and tell the Germans that we refused to distribute them. In other words, ‘Do what you will.’ We knew well enough what they would do. But as soon as the idea became known in the ghetto, dozens of people came to us speaking on behalf of hundreds of the common folk, common folk in the best sense of the term, and said to us: ‘You want to send us to death. What right have you to do that?’ They did not speak about the generations to come. They spoke a very prosaic language, but it was the language of their instinct to live.
As Garfunkel recounts, the Jewish Council was told that failure to distribute the labor cards would result in severe punishment of the whole community. It was known that reprisals could involve brutal deportations, murder, withholding food, kidnappings, and the like. By the time the labor cards decision was imposed on the Jewish leadership, 10,000 of the Jews of Kovno, over a quarter of the population of the ghetto, had already been murdered.
In his responsum, R. Oshry carefully formulated the questions the Kovno Jewish Council faced in deciding whether to comply with the order. Was it permissible for the Council to distribute the cards as the German commandant had ordered, knowing that those who did not receive a card would likely be deported and murdered? Or should they refuse to distribute the cards, thereby perhaps putting at risk even more lives? Second, R. Oshry asks, under what circumstances is it permissible for individual Jews to acquire the cards, since by so doing they deprived their fellow workers of the life-providing labor card?
First Part of the Responsum: The Principle of Surrender To an Enemy Authority
Oshry begins his responsum by situating the labor cards case alongside the longstanding rabbinic debate concerning surrender to an enemy authority. R. Oshry quotes and interprets the classic Palestinian Talmudtext on surrender of a Jew to the non-Jewish authority:
[As to] a group of men to whom gentiles said, ‘Give us one of your number that we may kill him, and if not, lo, we will kill all of you’—let them kill all of them, but let them not hand over a single Israelite. But if they singled one out, such as they singled out Sheba the son of Bichri [2 Sam 20]—let them give him to them, that they not all be killed.
The key difference between the two cases lies in who is selecting the person to be surrendered. In the first case, to comply would require the group to select one of its own and, by doing so, to condemn one of their group to death, which is impermissible given that none of them are guilty of a capital offense. But if the enemy specifies who should be surrendered, as in the second case, the group is not forced to single out one of their own as deserving of death. Since complying may spare the lives of the others, surrendering the person specified is permissible. Applying both parts of this interpretation, R. Oshry suggests that it may be permissible to distribute the cards since doing so avoids specifying victims to the enemy authority.
The questions, of course, that R. Oshry leaves unanswered are, first, does not handing the cards to one group constitute sentencing the remaining group to death? R. Oshry might answer that we are not singling anyone out for surrender since we are offering no names. The second question is whether the Kovno Jewish Council and even R. Oshry himself were truly aware that the Jews were doomed to death.
Oshry now goes on to consider a ruling of Rabbi Moses Maimonides. Even if a particular person is specified by the enemy authority, Maimonides argues that he may not be surrendered unless he is already guilty of a capital offense and thus is “anticipating execution.” R. Oshry argues, based on this, that the non-workers in the Kovno ghetto who will be singled out by the German order cannot be seen as “anticipating of death.” On this basis, R. Oshry declares, it is forbidden to comply with the Nazi orders to distribute the cards.
Oshry’s judgment does not end there, however. He concludes his responsum by pointing to the Nazi’s ultimate goal of exterminating all of the Jews of Kovno, a scenario not addressed in the classic teachings on surrender. “It is possible,” he writes,
to say that our case is not analogous to the law that obtains to specifying an individual for, according to the intentions of the wicked ones, may their memory be blotted out—they wanted to murder everyone, so now a suggestion appears to save some of them insofar as the permits are being issued and therefore collecting and distributing the tickets is a matter of saving [people].
We must note that many rabbinic authorities interpret Maimonides’ teaching in the same way R. Oshry did, but it is not clear that Maimonides’ ruling applies to cases where the murder of the entire group or community is possible. Maimonides is indeed addressing the situation discussed in the Palestinian Talmud where the price to be paid for non-compliance will be for “all of them” to be killed. “All of them” could refer to a large community, as well as a small group, but it is not clear how the teaching addresses mass murder or genocide, i.e. the murder of an entire people, as the Nazis attempted towards European Jewry. Thus, it should be acknowledged that none of the precedents on surrender, including Maimonides’ teaching, directly address a case with an enemy authority like the Nazis, whose intention and capacity was to exterminate the whole of the Jewish people.
There is nevertheless some question about the extent to which R. Oshry’s calculus here would have been disturbed by the knowledge, which he does not yet seem to have, that all Jews, workers or non-workers, were scheduled to be murdered by the Nazis—some sooner, some later. Such knowledge would mean that every Jew was “anticipating of death” and thus eligible to be traded to the enemy, since his fate had been decided at Wannsee or even earlier.
The “Final Solution” also renders the question of “whose blood is redder” irrelevant. And finally, it just about cancels the question of martyrdom—if everyone is sentenced to death, there may be no dying for a cause, and as Terrence Des Pres has pointed out, under such circumstances the highest goal is not dying for any cause but rather survival.
Rabbi Oshry does find a source of support for seeing the distribution of the cards as permissible by citing a decision given earlier by his teacher Rabbi Avraham Kahane Shapiro, the chief rabbi of Kovno, whom R. Oshry would replace after R. Shapiro’s death in February 1943. Shortly after the German invasion in October 1941, R. Shapiro was asked by the members of the Jewish Council how, according to the Torah, they should respond to a German decree ordering them to post signs announcing that all men, women, and children were to assemble for a selection whose likely outcome would be deportation and death. R. Kahane Shapiro told the Jewish Council that when the Jewish community is targeted for total destruction, and then a means by which to save a portion of it emerges, then it becomes mandatory for the community’s leaders to attempt to save as many people as possible.
Oshry thus concludes that the distribution of cards in this case similarly appears to be an act of saving. Like R. Kahane Shapiro’s decision, R. Oshry’s decision is that the Jewish Council is not only permitted but obligated to distribute the cards among the community.
In concluding from a very careful study of the major legal sources that the distribution of the cards is forbidden in one sense yet required in another, R. Oshry powerfully demonstrates the difficult if not impossible nature of the decision faced by the Jewish Councils. One way to interpret R. Oshry’s responsum is thus to conclude that since no guilty party had been identified among the victims of the Germans’ orders, the classic halakhic texts on surrender require non-compliance. On the other hand, the exceptional circumstances—the German intent of extermination—demand compliance. According to this reading, R. Oshry employs legal language to argue that distributing the cards is obligatory, calling it “an act of rescue,” but he does not provide a conclusive argument to render the basic teaching on surrender or the principle of specification inapplicable. In the closing lines of his responsum, R. Oshry concludes that it is difficult to determine if the principle of specification applies in this case, but given the undeniable fact that the intent of the Germans was total extermination of all of the Jews of Kovno, distribution of the cards is an act of rescue and is therefore obligatory.
A problem facing anyone reading or writing about the Shoah should be noted here: that of assuming with a measure of certainty what members of the Jewish community knew (or should have known) at the time about what was to come. It is hard to establish whether R. Oshry and the members of the Kovno Jewish Council knew or believed at the time that the German intention was total extermination of the entire Jewish population. Had they made such a deadly calculation, the questions surrounding the substitution of one life for another would seem to disappear. Another way of putting this is to say that if all are condemned to death, then the life-for-life problem does not arise, as all are “sentenced to death.” What then, we might ask, is the consequence of knowing that one’s doom and the doom of one’s community is inevitable? Does that mean you have no choices regarding the saving and surrendering of lives? Or does it mean that any choice to save or surrender under the circumstances is permissible?
The issue of how to respond to German orders prior to a selection and deportation was one of the greatest moral crises faced by Jews during the Holocaust. To this day, the role of the Jewish Councils in carrying out German orders is the subject of intense debate. While R. Oshry’s responsum is the only surviving responsum we have found on the issue of the Jewish Councils’ participation in distributing papers to a portion of the community knowing that the rest would likely be deported and murdered, virtually every Jewish Council had to confront this painful issue. Several councils felt compelled to seek a rabbinic ruling on the question of surrender, including in Vilna, where a group of rabbis advised the Jewish Council chairman, Jacob Gens, that to distribute the cards was a violation of Maimonides’ teaching on surrender and thus was not permissible. As Isaiah Trunk notes in his discussion of the Jewish Councils’ debates as to whether to comply with orders to organize a selection, “the learned rabbis could not arrive at a consensus of opinion. In [Kovno], the rabbis decided that it was necessary to obey the German authorities….On the other hand, the rabbis in Vilna categorically forbade Gens to deliver a single Jew into the hands of the Gestapo, even if this could, as he maintained, save others from death.” Though no written responsa exist, the judgment the rabbis in Vilna gave to Gens should be mentioned here because it amounts to an oral responsum.
Second Part of the Responsum: Preserving One’s Life at the Expense of Another’s
In his responsum, R. Oshry also addressed the question of the permissibility of individual Jews in the ghetto refusing to wait for the Council to distribute the cards and instead seizing the cards for themselves and their families. To address this case, R. Oshry relates it to halakhic discussions of the legal limits of a person averting harm to himself or another which as a result leads to harm coming to a third party. The most important consideration for R. Oshry in deciding this question was the distinction he drew between direct and indirect action in causing harm. To make this distinction clear, R. Oshry begins by discussing the Talmudic case of the two men stranded in the desert with only enough water for one of them to survive. The story of the two men in the desert is presented in Tractate Baba Metzia 62a:
Two are walking on the road. In the hand of one of them is a canteen of water. If they both drink, both will die. If only one drinks, he will reach his destination alive. Ben Petura learned: Better that both drink and they both die, rather than one see the death of his fellow. [This was the accepted teaching] until Rabbi Akiba came and interpreted [the verse from Leviticus 25:36] ‘That thy brother may live with thee,’ [to mean] your life precedes the life of your fellow.
What are the men to do? May one of the men drink the water, knowing that the other man will die but he may survive? R. Oshry suggests that the key issue in interpreting the case of the men in the desert has to do with direct versus indirect action. R. Oshry cites in support the interpretation of the case where it is deemed permissible for the person to drink the water to save himself since he does not take any direct action to cause the death of his companion. On the basis of this interpretation, R. Oshry states that the desert case only makes clear that it is not permitted to save oneself if it causes another’s death through direct action.
And yet one can raise questions about R. Oshry’s interpretation, in particular concerning whether other choices the men can make constitute “direct actions” that could cause one or both of their deaths. For instance, if one of the men gives any of the water to his companion, then his action will lead to both of them dying since there is only sufficient water for one of them to survive. In choosing to share the water, the man giving water to his companion is basically arranging his own suicide, which is prohibited.
In the labor cards case, sharing a single card is not an option at all (at least in terms of sharing the card in relation to being spared selection and deportation), unlike with the men and the jug of water. Thus, for our purposes the case of the two men in the desert would seem to apply much more to the case where one already has a labor card and is asking, for instance, if he should give it away to someone else.
Despite the way the distinction between direct and indirect action may make room for the permissibility of seizing the cards, R. Oshry finds in a later major legal source a further way of considering the desert case which could explain why seizing a card for oneself is impermissible: the fact that in a sense the cards belong to all Jews in Kovno, with no individual having more claim to a card than any other. Since it is plausible to hold that the cards belong to all of the Jews of Kovno equally, R. Oshry cites an authoritative commentary on the men in the desert case, which states: “But if the [container of water] belonged to the two of them….it would be better for the two of them to die and not to see each other’s demise.” Applying the teaching that both should die rather than seize what belongs to each of them equally, R. Oshry argues that the ghetto workers should also refrain from seizing the cards, despite the risk to their lives. As R. Oshry states, “If they are considered as partners then they are forbidden to seize them because this would constitute seizing something from your friend and saving yourself with something that belongs to your friend.”
Oshry thus concludes that seizing the cards for themselves is contrary to Jewish law. Receiving one from the Jewish Council is not, however, since to accept a card from the Council is neither to directly cause harm to another nor is it seizing the property of another, since the cards belong to all of them equally, including the recipient of the card.
In addition to demonstrating that the legal sources forbid seizing the cards, R. Oshry also takes up an ethical question that many faced during the Holocaust: what is a person permitted to do to save his own life when it can only be saved at the expense of another person’s life? In taking up this question, the two parts of the responsum come together very clearly. R. Oshry concludes that the distribution of the cards by the Jewish Council is obligatory, since it is an “act of rescue” and aims to save as many of the community as possible in the face of extermination. But to seize a card for oneself rather than receive one from the Council is, in effect, to cause the death of another, much like taking the water and drinking it all oneself would cause the death of one’s companion in the case of the two men in the desert. To receive a card may amount to the sparing of one’s own life, in principle through no merit of one’s own, but to seize a card amounts to the saving of one’s own life at the expense of another’s (who is no less deserving to receive a card and be spared). We can thus sum up the two parts of R. Oshry’s responsum to be arguing that given the enormity of the threat to the community, individual Jews, including those on the Council, needed to do what they could to spare innocent life. In the case of the members of the Jewish Council, this meant complying with the Germans’ orders and distributing the cards. In the case of the workers seeking the cards in order to be spared, this meant refraining from seizing the cards for themselves. In short, R. Oshry’s decision is guided by the urgency of trying to preserve as many lives as possible without violating principles of Jewish law.
This, in turn, reveals an important reality in rabbinic decision making. R. Oshry does not deny the fact that his responsum was determined not merely by interpretation of legal texts but also by the opinions of others in the community, a crisis atmosphere, and his personal convictions. Perhaps what shines most brightly in R. Oshry’s responsum is his absolute commitment to preserving the physical and spiritual health of the community in the face of death and destruction, a commitment which is evident in the questions he raises, the circumstances he considers, and the rulings he gives. In these ways, R. Oshry’s responsum powerfully exemplifies how halakha guides a rabbi in his attempt to maintain the welfare of the community.
Inadvertently Killing an Infant in a Bunker: The Rodef
The next responsum involves the loss of one life in order to save others. Jews in the ghettos, unable to escape, created underground shelters referred to as “bunkers.” The bunkers were most commonly used to hide during Nazi selections and deportations, but they also became more permanent places of refuge as the war progressed. The bunker entrances were concealed, and the conditions were horrendous with limited space, toilets, water, food, light, and air. The slightest noise could attract notice and discovery meant death for all of the bunker inhabitants.
We know of cases in the ghettos where a group in hiding worried that a crying infant would draw attention and lead to the group’s detection. In some cases, when members of the group tried to quiet the baby’s cries the infant was accidentally smothered. After the war, Rabbi Shimon Efrati was approached by a man about such a case, in which a pillow was placed over the mouth of an infant who could not be consoled. The pillow was removed after the Nazis completed their search. The infant had died.
In working on his responsum, R. Efrati was deeply aware of a similar case, but one which ended differently for the group. A group had been hiding in a bunker during a search when a baby burst out crying. R. Efrati’s brother, present with his family in the bunker, forbade anyone from stifling the child’s cries, lest the child be harmed. All of the people hiding in the bunker, together with R. Efrati’s brother, R. Yitchak Zvi Efrati, were discovered and murdered.
In his responsum, R. Efrati asks, first, whether it was permissible to place a pillow over the infant’s mouth in order to avoid detection, knowing that doing so might endanger the infant’s life; and second, if it was not permissible, does the man who actually placed the pillow over the infant need to atone?
Efrati carefully analyzes if and when it might be permissible to act in such a way that the lives of some may be jeopardized or taken in order to spare the life of a greater number. R. Efrati’s analysis of the rabbinic sources related to this case is extensive. Most relevant for our purposes are his discussions of two major teachings of Maimonides: the first, the ruling on surrender, which we’ve already discussed, and second, Maimonides’ classic discussion of the rodef, “the pursuer.”
The Crying Infant and Maimonides’ Ruling on Surrender
In his ruling on surrender, Maimonides takes up the story set out in Tractate Sanhedrin where a group is told, “Give us one of your number that we may kill him, and if not, lo, we will kill all of you.” From the beginning, Maimonides emphasizes that it is very rare for a rabbinic authority to rule that the taking or surrendering of life is permissible. Only under two very narrow conditions, as R. Efrati notes, does Maimonides suggest that it may be permissible to surrender a person to an enemy authority: (1) if the individual is singled out by the enemy authority, and (2) if the individual is already guilty of a capital crime, and in this way, indicted and eligible for capital punishment. Unless both of these conditions are met, “let [the enemy] kill all of them, [and] let them not give over to them a single Israelite,” Maimonides concludes.
Interpreting Maimonides’ ruling carefully, R. Efrati argues that it most clearly applies to a case in which, regardless of the action taken, one person will die. But this is not the case in the bunker—putting one life in danger may spare the whole group, including the infant, from being killed. R. Efrati thus asks what the justification is for prohibiting surrender in such a case, if it is clear that non-compliance would result in the death of everyone.
Efrati then argues that the situation in the bunker is precisely such a case. If the infant cries and the infant’s voice is heard by the Nazis, the infant would certainly be killed together with everybody in the bunker. In a sense, then, if the Nazis raid the bunker upon hearing the infant’s cries it is as if the Nazis singled the infant out. Moreover, in this case, all of the Jews in the bunker have been sentenced to death by the Nazis searching for them. R. Efrati thus asks, “Why is it forbidden to surrender him?” If it is clear that non-compliance would result in the death of everyone, including the intended victim, there would be no logical reason to prohibit surrender.
The Crying Infant and Maimonides’ Ruling on The Rodef
Ohalot Chapter 7, Mishnah 6, presents the case of a person experiencing life-threatening complications during childbirth. In such a case, the Mishnah suggests, it is permitted, if need be, to remove the fetus limb by limb. Maimonides invokes this Mishnah to introduce his discussion of the principle of the rodef, and then discusses the case of the fetus acting as a rodef, a pursuer, of its mother. Maimonides bases his discussion of the rodef on a teaching in the Babylonian Talmud, which states: “If a minor pursues his fellow with intent to murder him, [the fellow] may be saved at the cost of [the pursuer’s] life.” But Maimonides draws attention to the conclusion of the Mishnah, where it warns that if the head of the fetus has already emerged, it cannot be touched even if the life of the mother is at risk, because one life should not be sacrificed for another.
Herein lies the problem. If the rodef principle is applied to the case of the bunker, the fetus is treated as a pursuer, but if it is not applied, the justification for destroying the fetus (and consequently, the infant) is based on its life having lesser standing than the mother. Is the infant in the bunker a rodef?
Efrati accepts Maimonides’ teaching on the rodef, but draws an important distinction between a voluntary rodefand a rodefunder compulsion, whose threat can only be stopped by outside force. In the situation of a rodef under compulsion, the rodef will cause serious harm unless it is stopped. It may thus be destroyed in order to save the life it would take if there was no intervention. In the case of complications during childbirth, the infant in the womb is a rodef under compulsion, even at the stage where its head has emerged, since it appears to be threatening the life of the mother. So too, the crying infant, whose cries may be considered involuntary, is a rodef under compulsion. In addition, the infant’s life will also be taken as a result of its cries. Thus, R. Efrati rules that in this case, since all, including the infant, would be killed, it is permitted to place the pillow over the infant. Despite the danger to the infant’s life, it is a rodef under compulsion endangering the whole group and thus the principle, “one does not push aside a life for a life,” does not apply.
Efrati concludes his analysis by comparing the two different principles on which he based his decision—the surrender and the rodefprinciples. He suggests that it would appear that Maimonides’ ruling regarding surrender would permit the sacrifice of a life, whereas Maimonides’ ruling regarding the rodefwould require the sacrifice of a life. R. Efrati concludes that the requirement to kill the pursuer only applies to a voluntary rodef, but in the case of this responsum, where the rodef is under compulsion, killing the infant is permissible but not mandatory. Thus, R. Efrati ends his responsum by concluding that both principles would justify quieting the infant even at risk to its life, and the person who did it need not have a guilty conscience. And yet, R. Efrati adds, if those trapped in the bunker had refused to risk the life of the infant, and were discovered because of its cries, they should still be considered martyrs. R. Efrati thus rules that morally there is room for both options.
The Ransoming of One Life for Another
One of the most troubling life-for-life problems that Jews faced during the Holocaust arose with the possibility of intervening in order to save one person instead of another. In 1944, such a question was posed at Auschwitz to Rabbi Tzvi Hirsch Meisels, by a father considering whether he should try and ransom his son from the guards after a selection.
As we discussed in the introduction to this article, in his responsum R. Meisels describes a “selection” on the eve of Rosh Hashanah in which some 1,400 boys of less than a certain height were singled out for death. As word spread throughout the camp that the boys selected would be taken to the gas chambers, some camp inmates sought to ransom particular boys by bribing the guards. However, the guards would not release any boy unless another was provided to take his place, because the guards would be murdered unless 1,400 boys were handed over.
The father of one of the condemned boys, aware that his son could be ransomed only at the expense of another life, asked R. Meisels whether Jewish law permitted such an action in this terrible circumstance. In his responsum, R. Meisels first considers whether the guilt in taking another boy to replace the one ransomed would be on the guards rather than on the man who pays them for ransom. In addition, it was possible that the guards would consider the Jewish prohibition against murder and not take another life in place of the ransomed one. Despite this possibility, R. Meisels tells the father that the guards would most likely seize another boy from the camp before releasing the ransomed prisoner, in order to maintain their quota and save themselves.
After seeing that this possible justification for ransoming the son could not be maintained, R. Meisels tells the father that he cannot give a ruling in the case or tell him what he should do. R. Meisels tells him, “I do not decide either yes or no. Do as you wish as if you had not asked me at all.” But the father continued to plead with R. Meisels to give him an answer. R. Meisels repeated to the father that he should not ask him this question and added that he could not answer without proper Jewish law texts in such an extreme situation. The father, still pleading with R. Meisels, understood that by refusing to answer the question, R. Meisels was implying that he was unable to permit the man to ransom his son. As R. Meisels records in his responsum, the father replied, “Rabbi, I did what I could, what the Torah obligated me to do: I asked a question of a rabbi, and there is no other rabbi here. Since you cannot answer me that I am allowed to ransom my child, this is a sign that according to the law you may not permit it…This is enough for me…and I will accept this with love and rejoicing.”
Meisels then records what the father did that day: “So he carried out his words and did not ransom his son. All that day of Rosh Hashanah he walked around talking to himself, murmuring joyfully that he had the merit to sacrifice his only son to God…like the binding of Isaac.”
The question brought to R. Meisels, in contrast to the one brought to R. Efrati, was a current matter of life and death in a moment of terrible extremis. When R. Meisels was asked this question by a fellow prisoner at Auschwitz he had no access to sources, nor other rabbis to consult, nor the time or calm needed to issue a carefully considered decision.
What is most distinctive in R. Meisels’ responsum is his admission that he could not give a decision in this case. Far from shirking his duty, R. Meisels acts from his conviction that he could not tell the father that he should or shouldn’t allow his son to be killed. There is precedent that may support R. Meisels’ refusal to give the father an answer. While it is a positive commandment for a qualified rabbinic scholar to render decisions when asked, Rashi ruled that it is forbidden to do so while intoxicated or otherwise disoriented. It seems reasonable to think that the circumstances facing R. Meisels when the father approached him that day at Auschwitz left him sufficiently disoriented, as he indicates in his response to the father.
Meisels’ responsum thus points to limits that a rabbi must recognize in determining what is right and according to Jewish law, as difficult as this may be for the rabbi and the one bringing the question. R. Meisels’ responsum thus provides us with a window into the enormous task the rabbis were faced with, the great piety of those who came to the rabbis with their questions, and the leniency and compassion which guided the rabbis in issuing their decisions.
Before concluding, we must pause to remember that very few written responsa from the Holocaust have survived. Many of the rabbis who did manage to give decisions during the Holocaust, a number that is difficult to quantify, were murdered. Nevertheless, responsa from the Holocaust comprise a precious record of the Jewish experience under Nazi rule: how rabbis and their communities viewed the catastrophe as it occurred, how they responded, how they groped for precedents to a persecution whose magnitude was unprecedented, how they brought to bear the weight of Jewish law and tradition on the chaos engulfing them, and how, afterwards, they struggled to recover from the decimation of their people. The responsa also demonstrate that employing the value structures of the Torah during the Jewish People’s darkest hour provided context and coherence to the victims when nothing else did or could.
As historian Steven Katz observes in his discussion of the Jewish councils, rabbis, along with other leaders in the Jewish community, were crucial sources of support of Jewish spiritual and cultural resistance during the Holocaust. Katz writes, “The Jewish leadership was very active in the support of cultural and spiritual resistance to the concerted Nazi effort to dehumanize the Jewish people. This is an elemental, much undervalued aspect of Jewish resistance, of the meaning of Jewish resistance against Nazism. In a world that would deny their common humanity, their very belonging to the human family, the Jewish People, directly encouraged and supported by its leadership, retained its spiritual integrity and inherent dignity.”
The responsa also add further evidence for discarding the worn-out trope of a Jewish leadership slipping into simple collaboration with Nazi rule. As historical writings that show how rabbis and members of the Jewish Councils responded to Nazi orders, the responsa demonstrate the kinds of debate and agonizing deliberations that went into making these decisions. The responsa also give us a first-hand look at what many Jews did to preserve their physical and spiritual health, guided by the Jewish legal tradition and their own ethical sense. Study of the responsa thus adds powerful support to our understanding that Jews were not merely passive victims or lambs going to the slaughter but acted with courage and strength to resist the Nazi assault on their way of life, much as Jews had done for millennia while living under oppressive rule. As R. Oshry stated in an interview with the New York Times in 1975, “One resists with a gun, another with his soul.”
Perhaps most importantly, the responsa bring to light the solace found in discovering that even when there were no clear answers to the dilemmas that confronted the Jewish community, the Torah could nevertheless provide guidance. For many Jews during the Holocaust, resistance lay not in armed conflict with the persecutor but in the strength to continue to conduct themselves according to Jewish ethics and law, to endure brutality without becoming brutalized or giving up Jewish identity. This abiding adherence to Jewish law and traditional Jewish communal life, in defiance of Nazi prohibitions and cruelty, should be understood as a form of active, though unarmed, resistance, perhaps its ultimate form.