Avodah Mailing List

Volume 30: Number 45

Fri, 18 May 2012

• 1. Re: torture in halacha??? (Zev Sero)
• 2. Re: defining torture (Micha Berger)
• 3. Re: defining torture (Zev Sero)
• 4. Re: defining torture (Micha Berger)
• 5. Re: defining torture (Zev Sero)
• 6. Re: defining torture (Micha Berger)
• 7. Re: torture in halacha??? (Micha Berger)
• 8. L?shem Yichud (Prof. Levine)
• 9. Re: torture in halacha??? (hankman)
• 10. torture and halacha (Saul.Z.New...@kp.org)
• 11. Re: torture in halacha??? (Zev Sero)
• 12. Re: torture in halacha??? (hankman)
• 13. Re: torture in halacha??? (Zev Sero)
• 14. Re: torture in halacha??? (hankman)
• 15. "Brit Hachadasha" (Zev Sero)
• 16. The Akeidah (Micha Berger)
• 17. Re: torture in halacha??? (hankman)

On 15/05/2012 7:45 PM, hankman wrote:
>
> CM responds:
> Not obvious to me. If the purpose is fulfilling my satisfaction, need
> or desire (which must be why I am doing this) then why is that not
> purposeful - and that will always be the case? That was the point of
> that list of cases in the previous post. what is the difference
> between my DESIRE for food, money, joy in a horn trophy on my wall, 
> warped psychological joy or need to see pain. The purpose will always
> be my satisfaction from the pain not the pain itself.

With that attitude how could there ever be a davar hamiskaven on Shabbos?
I cooked soup?  My purpose wasn't that the soup should be cooked, it was
that I should enjoy the sensation and satisfaction of eating hot soup!
I sowed a seed?  My purpose wasn't that the seed should grow, but that
I shouldn't be hungry next year!  Clearly your definition of "purpose" is
defective.  If I cook soup my immediate purpose is to have soup.  If I sow
a seed my immediate purpose is that it should grow.  And if I cut the head
off a bird because I want to eat the bird, for which it must be dead, then
my immediate purpose is the bird's death.  But if I cut the head off because
I need the head itself, and it's of utter indifference to me whether the
bird lives or dies, then its death is not my purpose at all, and it's davar
she'eno miskaven, except that it's psik reisha so it counts as miskaven.

-- 
Zev Sero        "Natural resources are not finite in any meaningful
z...@sero.name    economic sense, mind-boggling though this assertion
                  may be. The stocks of them are not fixed but rather
                 are expanding through human ingenuity."
                                            - Julian Simon

On Tue, May 15, 2012 at 06:20:30PM -0500, Lisa Liel wrote:
: On 5/15/2012 3:24 PM, Simi Peters wrote:
:> I hope this isn't too pedantic, but can we define 'torture'?  Is there 
:> any objective halakhic definition anywhere?

: That's just the thing.  There isn't one.  There isn't a subjective one, 
: either.  The concept doesn't even exist, which is why some of us have 
: been maintaining that it's a non-question.

There is an issur against causing pain to others.

There are situations that override that issur.

Some of those situations will be what we call "torture" in common
English-language parlance, such as trying to extract information from a
terrorist about an immanent threat, in a situation where piquach nefesh
is dokheh.

Or, to tie to another thread, kefiyah beshittin ad sheyomar "rotzeh ani".
(To avoid machloqes: in the cases specifically listed as such by Chazal.)

On the other side, you can't beat someone with clubs to get them to
tell you where your dropped dime rolled. (Barring creatively setting up
some special situation where more rides on obtaining his cooperation in
general, or said dime, or....)

So, even without a halachic category parallel to "torture", we can still
meaningfully ask about when torture is or isn't allowed.

On a halachic level, we would have to phrase it as something like: When
is it mutar to cause pain to another for the gain of someone other than
the victim?

Tir'u baTov!
-Micha

-- 
Micha Berger             Today is the 38th day, which is
mi...@aishdas.org        5 weeks and 3 days in/toward the omer.
http://www.aishdas.org   Tifferes sheb'Yesod: How does reliability
Fax: (270) 514-1507           promote harmony in life and relationships?

On 15/05/2012 8:33 PM, Micha Berger wrote:
> There is an issur against causing pain to others.

Torture is *not* "causing pain".  Not by any definition.

-- 
Zev Sero        "Natural resources are not finite in any meaningful
z...@sero.name    economic sense, mind-boggling though this assertion
                  may be. The stocks of them are not fixed but rather
                 are expanding through human ingenuity."
                                            - Julian Simon

On Tue, May 15, 2012 at 08:35:49PM -0400, Zev Sero wrote:
> On 15/05/2012 8:33 PM, Micha Berger wrote:
>> There is an issur against causing pain to others.

> Torture is *not* "causing pain".  Not by any definition.

Not all pain is torture, but all torture involves physical or mental
pain by every definition I've found. Except that of a "tortured argument".
(The UN requires "severe pain" in its definition, and Marriam Webster uses
"the infliction of intense pain".)

Since pain is assur, the fact that one component of torture is that
it involves pain does put it under the issur. And therefore there is a
halachic question of whether any of the matirim for causing pain apply
when the pain is that of torture, and what those matirim are. (I don't
know what they are, which is why I pulled out the obvious case -- real
and immediate piquach nefesh.)

We've gone back-and-forth on this now in dozens of emails, and I still
fail to see how you avoid this conclusion. It seems obvious to me that
there is no torture without pain against the will of the victim, and
that means questions of issur veheter.

Tir'u baTov!
-Micha

-- 
Micha Berger             Today is the 38th day, which is
mi...@aishdas.org        5 weeks and 3 days in/toward the omer.
http://www.aishdas.org   Tifferes sheb'Yesod: How does reliability
Fax: (270) 514-1507           promote harmony in life and relationships?

On 15/05/2012 8:49 PM, Micha Berger wrote:
> On Tue, May 15, 2012 at 08:35:49PM -0400, Zev Sero wrote:
>> On 15/05/2012 8:33 PM, Micha Berger wrote:
>>> There is an issur against causing pain to others.
>
>> Torture is *not* "causing pain".  Not by any definition.
>
> Not all pain is torture, but all torture involves physical or mental
> pain by every definition I've found.

However it involves much more than that.

> Since pain is assur, the fact that one component of torture is that
> it involves pain does put it under the issur.

But any discussion of whether there's an issur on torture only makes
sense in a situation where the issurim on hitting and causing pain don't
apply.  We must have already got a heter for those things, or the issue
of torture wouldn't even come up.  Therefore you can't use them to show
that torture is assur.


> We've gone back-and-forth on this now in dozens of emails, and I still
> fail to see how you avoid this conclusion. It seems obvious to me that
> there is no torture without pain against the will of the victim, and
> that means questions of issur veheter.

Here's an example: there's a discussion of whether one must make kiddush
on yom kippur, and whether one must say yaaleh veyavo in benching.  But
no such discussion makes sense without assuming that the circumstances
allow eating in the first place.

-- 
Zev Sero        "Natural resources are not finite in any meaningful
z...@sero.name    economic sense, mind-boggling though this assertion
                  may be. The stocks of them are not fixed but rather
                 are expanding through human ingenuity."
                                            - Julian Simon

On Tue, May 15, 2012 at 08:54:58PM -0400, Zev Sero wrote:
> But any discussion of whether there's an issur on torture only makes
> sense in a situation where the issurim on hitting and causing pain don't
> apply....

Not really. We weren't asked to discuss if there were any ADDITIONAL
issurim involved in torture. We were asked "is torture ever allowed
in halakhah???" Taking issurim not unique to torture out of scope
is your own idea, and as you noted, reduces the question to something
uninteresting.

RCM and I have been trying to reopen the original question for most of
this thread. I have no idea why you're repeatedly insisting that the
only valid discussion is the uninteresting one.

To finally get this thread launched, if I may be so lucky...

To know when torture is ever allowed, one has to ask what reasons permit
causing pain to others without their permission. I don't know what
other issurim might apply, but this one does.

I already noted that while a consequentialist could assume that it's
okay to cause pain to one person to avoid similar pain (or more) to
another, halakhah's deontological bent means we actually need to discuss
it on a halachic level and not just compare tza'ar.

Tir'u baTov!
-Micha

-- 
Micha Berger             Today is the 38th day, which is
mi...@aishdas.org        5 weeks and 3 days in/toward the omer.
http://www.aishdas.org   Tifferes sheb'Yesod: How does reliability
Fax: (270) 514-1507           promote harmony in life and relationships?

R Dov Zakheim is in transit and couldn't compose this email himself.
But he asked me to point the chevrah to his paper

Confronting Evil: Terrorists, Torture, The Military and Halakhah
Dov S. Zakheim
from Meorot 6:1, Shevat 5767
http://www.yctorah.org/component/option,com_docman/task,doc_view/gid,304

Tir'u baTov!
-Micha

-- 
Micha Berger             Today is the 38th day, which is
mi...@aishdas.org        5 weeks and 3 days in/toward the omer.
http://www.aishdas.org   Tifferes sheb'Yesod: How does reliability
Fax: (270) 514-1507           promote harmony in life and relationships?

 From http://torahmusings.com/2012/05/lshem-yichud/

It is interesting to note that historically, the 
inclusion of l?shem yichud in the liturgy had 
been met with some fierce opposition. Rabbi 
Yechezkel Landau waged a fierce battle to ban the 
recitation of l?shem yichud and to have it 
removed from all texts. He also took great 
personal issue with those who had the practice of 
reciting it. As Rabbi Landau writes:[6] ?In my 
opinion this is an evil sickness in our 
generation.? [Those who recite it] are the 
destroyers of the generation.? Indeed, it is 
recorded that Rabbi Landau would forbid anyone 
who had the custom of reciting l?shem yichud from 
reciting a blessing over his personal lulav and etrog set on Sukkot.[7]

This fierce opposition to what seems to be a 
completely innocuous and even praiseworthy 
practice is difficult to digest. It is suggested 
that Rabbi Landau may have believed that the 
l?shem yichud formula, with its strong mystical 
connotations, was actually a creation of the 
Shabtai Tzvi movement that led many Jews astray. 
Some claim that Rabbi Landau retracted his 
objection to the l?shem yichud later in life. [8]


[6] Noda B?Yehuda, YD 93.

[7] Minhag Yisrael Torah, OC 8:1.

[8] Minhag Yisrael Torah, OC 8:1.


See the above URL for more.  YL

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CM responded:
> Not obvious to me. If the purpose is fulfilling my satisfaction, need or 
> desire (which must be why I am doing this) then why is that not 
> purposeful - and that will always be the case? That was the point of that 
> list of cases in the previous post. what is the difference between my 
> DESIRE for food, money, joy in a horn trophy on my wall,  warped 
> psychological joy or need to see pain. The purpose will always be my 
> satisfaction from the pain not the pain itself.
RZS reponded:
With that attitude how could there ever be a davar hamiskaven on Shabbos?
....
  And if I cut the head
off a bird because I want to eat the bird, for which it must be dead, then
my immediate purpose is the bird's death.  But if I cut the head off because
I need the head itself, and it's of utter indifference to me whether the
bird lives or dies, then its death is not my purpose at all, and it's davar
she'eno miskaven...

CM reponds:
I really don't want to wander afield and open a door into hilchos Shabbos 
and limit the discussion to  tzar balei chayim and torture.

Even here I would like to take a step back and consider a simple case. 
Consider the much vaunted annual baby seal hunt. According to you (and me as 
well), I have a "purpose" - the valuable pelt - but can I now choose either 
a painful or painless way to obtain the pelt at will? I would think not and 
avoidable pain would not be permitted and kept to the minimum possible 
consonant with the "purpose.". IOW if my "purpose" demands the death but not 
the pain of the animal, must I avoid the pain? If so, it follows that 
although the father (rebbe) has a legitmate purpose in hitting, nevertheless 
this would  not also necessarily be construed as a p'tur ("by definition" 
[RZS's phrase]) for the isur from the proposed kalvechomer from  tzar balei 
chayim for the case of human abuse/torture.

Kol Tuv

Chaim Manaster

http://hirhurim.blogspot.com/2006/07/jewish-law-and-torture_13.html 
http://hirhurim.blogspot.com/2006/07/jewish-law-and-torture-ii.html 
http://www.aish.com/ci/be/48914707.html 
http://menachemmendel.net/blog/2007/02/26/torture-and-confessio
n-in-jewish-law/ 

http://www.traditiononline.org/news/article.cfm?id=100881 
http://judaism.stackexchange.com/questions/4217/torture-in-halacha 
http://www.rabbileff.net/shiurim/answers/1500-1749/1637.mp3 

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On 16/05/2012 9:10 AM, hankman wrote:
> Consider the much vaunted annual baby seal hunt. According to you
> (and me as well), I have a "purpose" - the valuable pelt - but can
> I now choose either a painful or painless way to obtain the pelt at
> will? I would think not

Why do you think not?  How do you square this with the fact that one
may pluck a pen from a living bird?


> and avoidable pain would not be permitted and kept to the minimum
> possible consonant with the "purpose.". IOW if my "purpose" demands
> the death but not the pain of the animal, must I avoid the pain?

"Bror lo misa yafa" is derived from "ve'avhta lere'acha kamocha",
not from tzaar baalei chayim, or even from "pen yosif" or "tachas
asher inah".  So it would seem, lich'orah, only to apply to re'acha,
which includes no animals and only some humans.

-- 
Zev Sero        "Natural resources are not finite in any meaningful
z...@sero.name    economic sense, mind-boggling though this assertion
                  may be. The stocks of them are not fixed but rather
                 are expanding through human ingenuity."
                                            - Julian Simon

I finally did a little bit of quick check in the meforshim on my computer
on tzb"c:

Most paskan tzb"c is daureisa based on the gm' B"B 32-3 (not like R
Yoissi Hagligi there). See Ramo CH"M 272:9-14

Vayan Dovid: quotes a Tshuvos Chavas Yair 191 that tzb"c in a man is not
daureisa. He then brings a Bircai Yosef who relies on a Tshuvos Rashb"a
to show the opposite that tzb"c is daureisa in a man. He then goes on
to discuss (I only skimmed this quickly) causing additional tzar to an 8
day old at his bris and he writes quoting the Shulchan Govoah, "ve'asid
litain es hadin mitzara diyinuka," even though here there is a clear
purpose -- the mila. This fits well with the logic I offered. See there...

Kerem Shlomo: discusses te'ina and prika of a man who is overloaded. He
discusses the Rashba and the Radvaz who differ and offers a sevaa that
even if you hold that here you are patur as the Radvaz, you can still
hold by other tzb"c of man that it is asur daureisa but here it is the
man's own fault for overloading himself as opposed to a donkey who has
no choice in the matter...

Imrei Noam: Siman 9, on tzb"c: A longer piece I will only pull out
one or two highlights. He discusses tzb"c duareisa or derabonan and to
answer how the Mordechai holds derabaonan (unlike most other rishonim)
he brings the Chida who (or the sefer he was quoting) that there are two
types of tzb"c: tzar godol daureisa and tzar koton derabonan, and then
he writes "ayain shom ma shekosav aimas tzar godol ve'aimas tzar kotan,"
the aima seems to be tzar as well. (I did not actually look it up so I
just assume that's what he means).

The he brings different opinions whether the Rambam holds tzb"c is
daureisa or derabonan. He quotes the Radvaz, "af al gav d'tzb"c min
haTorah ain bo lav velo assei. He the brings from the Sefer Hashloma,
that we learn out tzb"c from lo sachsom shor bedisho, and if so then
the issur tzb"c dauraisa is only keshe'ose mase beyodayim but beshev
val ta'ase it might only be derabonan.

Then he quotes the shu't Shailas ya'avetz, that he calls novel, that there
is no din tzb"c daureisa by shektzim veremoshim, but only by animals that
can do work. He concludes, that for small animals that can do no work,
"ain lohem s'mach min haTorah lehakpid al tzaron ve'al harigason."

Then he starts to discuss tzb"c in man: Among others, he quotes from
Rabbeinu Yonah S"hY 266, "hishomer miltzaer balri chayim, hen beheima
hen oyf, VEKOL SHEKAIN LETZAER ADAM SHE'HU ASSUI BETZELEM HAMOKOM." This
begins to sound like RMB's kal vechomer.

Then he brings the Chavas Yair who argues against the kal vehomer wrt
tzb"c from animal to man, because animals don't have a "nefesh maskeles
lisboil," whereas man does. (I am not sure if he would apply this logic
for outright torture.). then he does some back and forth on this... He
also reports the Chinuch mitzvoh 550 (not to plow with an ox and donkey)
who also uses a k"vc for tzb"c from animal who are not bnei sechel to
man who is.

Finally he gets into the pro and con of whether there is tzb"c in a goy.

Ateres Paz Ch"M siman 9: This is also a long piece starting with whether
tzb"c is daureisa or not and then moves to whether tzb"c applies to man
or not. One of the points he makes is from Rabeinu Gershom in Erchin
that not delaying the death sentence is because of tzb"c of the mental
anguish of the prisoner ( and here there is seemingly the "purpose"
of the mitzvoh of misas bais din -- so purpose is not a cure all for
all circumstances of tzb"c -- at least not by adam). Then he discusses
tzb"c letzorech (for a "purpose") that it is mutar but he adds that the
olom refrains with this midas achzarius against the briyos because they
fear they may be punished for this... There is much more... mostly about
tzb"c for chochmas harefuos [lab experimentation])

Kol Tuv
Chaim Manastrer

The Rambam derives the issur on causing a human pain, not from tzaar
baalei chayim but from "tachas asher inah".

Re: shkotzim uremoshim, does it make a difference that insects are
incapable of feeling pain?  Does it make a difference if you know
this fact?  Or is the *appearance* of cruelty what counts, since it
tends to foster a midas achzorius?

Re: not delaying a death sentence, surely that is part of "bror lo
misa yafa", which is derived from "ve'ahavta lere'acha kamocha".


-- 
Zev Sero        "Natural resources are not finite in any meaningful
z...@sero.name    economic sense, mind-boggling though this assertion
                  may be. The stocks of them are not fixed but rather
                 are expanding through human ingenuity."
                                            - Julian Simon

I am sorry. In my last post I wrote "Most paskan tzb"c is daureisa based on 
the gm' B"B 32-3 (not like R Yoissi Hagligi there).  That cite should read 
gm' B"M 32-3.

Wrt to pain in insects there are opininons all over the place 
notwithstanding the highly simple and non central nervous systems that are 
without a full complement of neuro receptors as compared to say mammals. But 
I would think this would really depend on your definition of pain and how 
you would recognize it in other species if it were present. the following is 
the conclusion from a paper in Experementia,
D o   i n s e c t s  f e e l  p a i n ?  -  A b i o l o g i c a l  v i ew
C. H.  E i s e m a n n ,  W.  K .  J o r g e n s e n ,  D.  J. Me r r i t t 
,  M.  J. Ri c e ,  B. W.  Cr ibb,  P. D.  W e b b   a n d  M.  P. Z a l u c 
k i
Department of  Entomology, University of  Queensland, St. Lucia, Queensland 
4067 (Australia)
The   implications  o f   the  foregoing  discussion,  for
insects and othe r  invertebrates, n e e d  to be considered
with  caution.  Clearly, it  is  not   possible  to  provide  a
conclusive  answer  to  t h e  probl em  o f   pain  in  lower
animals, as  a n y  subjective experience o f  an organism
c annot   be  directly  experienced  by  a n o t h e r   a n d   a
me ans  o f  communi c a t ing with lower organisms is not
available  to  us.  On  balance,  however,  the  evidence
f rom  consideration o f  the   adapt ive   role  o f  pa in,   the
neur a l   organisation  o f   insects  a n d   observations  o f
their behavior  does  not   appe a r   to support  the  occur-
rence  in  insects  o f   a  pa in  state,  such  as  occurs  in
humans .   It  is  likely  tha t   the  same  could  be  said  o f
othe r  invertebrates  having  less  complex  nervous sys-
tems, though more c aut ion would be  ne eded in othe r
cases, n o t a b l y  tha t  o f  the c epha lopod molluscs, which
have a considerably more complex nervous system 23.

We  consider tha t  the expe r iment a l  biologist would be
advized to  follow, wheneve r  feasible, Wigglesworth's
r e commenda t ion tha t   insects have   the i r   nervous sys-
tems ina c t iva t ed prior  to  t r auma t i z ing ma n i p u l a t i o n .
This procedure  not  only facilitates handl ing,  but   also
guards against the  r ema ining possibility o f  pa in inflic-
tion  and,  equa l ly impor t ant ,   helps  to  preserve  in  the
experimenter  an  appropr i a t e ly  respectful  a t t i t u d e
towards  living  organisms  whose  physiology,  t h o u g h
different, a n d  pe rhaps  simpler t h a n  our  own, is as ye t
far from compl e t e ly unde r s tood.

Further to your point from shekatzim and remoshim, the Shailas ya'avetz is 
talking about a class that is bigger than just the S & R but also includes 
any animals that are too small to do any work, such as small mammals that 
unquestionably feel pain.

Finally about your point of "bror lo misa yafa," but the R. Gershom says its 
due to tzb"c and he does not refer to bror lo misa yafa at least as 
recounted in the Ateres Paz (although others may hold what you wrote as 
well). Besides he is here not referring to the manner of the misa itself (as 
in bror lo misa yafa) but to the anguish due to  delay prior to the misa.

Kol Tuv

Chaim Manastrer

Yes, we do believe in "brit hachadasha"; just not the one that first
springs to mind.  See the Ramban on the first pasuk of Behar.

-- 
Zev Sero        "Natural resources are not finite in any meaningful
z...@sero.name    economic sense, mind-boggling though this assertion
                  may be. The stocks of them are not fixed but rather
                 are expanding through human ingenuity."
                                            - Julian Simon

On Fri, May 18, 2012 at 09:02:45AM -0400, Joseph Kaplan wrote to Areivim:
: On May 18, 2012, at 2:30 AM, Samuel Svarc wrote (also to Areivim):
:> Why didn't Avraham Avinu (known for being a baal chesed) find some
:> reason not to kill his only, promised, son?

: My answer: Because he heard that command directly from God.

And mine:

Because he was already promised "ki miYitzchaq yiqrei lekha zara",
telling him that Yitzchaq would somehow be around to parent children no
matter what he did. We know how -- HQBH sent a mal'akh to stop him.
Avraham probably had now idea how Yitzchaq would be around (survive,
resurrect, something else?).

It was a test of bitachon and willingness to cause pain, but not an
attempt to convince him that the G-d of Abraham would ever under any
circumstance ask for the murder of innocents. What kind of lesson would
that be? And wouldn't Avraham know just as certain as every other nevu'ah
of his that it's simply not possible that such is what the Av haRachaman
meant?

:-)BBii!
-Micha

-- 
Micha Berger             Today is the 41st day, which is
mi...@aishdas.org        5 weeks and 6 days in/toward the omer.
http://www.aishdas.org   Yesod sheb'Yesod: What is the ultimate measure
Fax: (270) 514-1507                     of self-control and reliability?

On 16/05/2012 9:10 AM, hankman wrote:
> Consider the much vaunted annual baby seal hunt. According to you
> (and me as well), I have a "purpose" - the valuable pelt - but can
> I now choose either a painful or painless way to obtain the pelt at
> will? I would think not
RZS wrote:
Why do you think not?  How do you square this with the fact that one
may pluck a pen from a living bird?

CM responds:
If you only have a living bird available and you need a quill then it is 
letsorech, but who says that if you have both a live and a dead bird in 
front of you that you are still permitted to inflict the tzb"c on the living 
bird - perhaps you would have to use the feather from the dead bird.
-------
CM wrote:
> and avoidable pain would not be permitted and kept to the minimum
> possible consonant with the "purpose.". IOW if my "purpose" demands
> the death but not the pain of the animal, must I avoid the pain?

RZS responded:
"Bror lo misa yafa" is derived from "ve'avhta lere'acha kamocha",
not from tzaar baalei chayim, or even from "pen yosif" or "tachas
asher inah".  So it would seem, lich'orah, only to apply to re'acha,
which includes no animals and only some humans.

CM responds:
As you say, "Bror lo misa yafa" is derived from "ve'avhta lere'acha 
kamocha", and may be specific to man, but as I posted yesterday not everyone 
takes this as the source for tzb"c which may apply to man in addition to the 
"Bror lo misa yafa"  derived from "ve'avhta lere'acha kamocha."

In any case, why would that imply no need for reduction of avoidable pain in 
cases other than those derived from "ve'avhta lere'acha kamocha," due to 
tzb"c (where this is an additional consideration derived from another 
source)?

Kol Tuv
Chaim Manaster



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