Mr. Spock said it best: "The needs of the many outweigh the needs of the few," to which Admiral Kirk added, "or the one."
Jewish law would not always agree and certainly not when it comes to pidyon sh’vuyim, ransoming captives. In such case, Maimonides states, the needs of the one do outweigh the needs of the many. "Indeed, there is no greater religious duty…, for not only is the captive included in the category of the hungry, the thirsty, and the naked, but his very life is in jeopardy." (See Mishneh Torah: Gifts to the Poor 8:10.)
Yet, despite the importance halacha attaches to pidyon sh’vuyim, and even as commentators in and out of Israel insist that some kind of "prisoner exchange" is inevitable in the current crises in Gaza and Lebanon, what if the terms for securing a captive’s release are unreasonably high, to the point perhaps of draining an individual’s or a community’s resources? What if meeting the demands means possibly encouraging further acts of violence and terror? What if the price to be paid is the release of convicted terrorists who are likely to resume their acts of terror against the Jewish community?
Before going on, a "commercial" is necessary: Pidyon sh’vuyim is one of the topics discussed in the Ethics curriculum of the Hebrew University’s Florence Melton Adult Mini-School, sponsored locally by UJA Federation of Northern New Jersey. This column is adapted from that lesson.
Despite the Rambam’s flat-out statement, the Mishnah, in tractate Gittin 4:6, offers a caveat: "Captives may not be ransomed for more than their value, for the sake of the social order."
In other words, there are times when the "needs of the many" take precedence. The Mishnah, however, offers no reason for this "sake of the social order" qualification. The Gemara that follows (Babylonian Talmud tractate Gittin 45a) suggests these possibilities:
1. Concern that acceding to unreasonable demands may ultimately drain a community of its resources.
‘. Fear of stimulating further kidnapping by agreeing to pay exorbitant sums.
If reason No. 1 is, in fact, the reason, a rich relative would be permitted to deal with the ransom on his/her own. Not so, however, if reason No. ‘ is the reason, because any payment by anyone would encourage further such acts. The Gemara then tells of Levi bar Darga, who paid a huge sum to ransom his daughter. His action supports reason No. 1, but the Babylonian sage Abaye raises an objection. "Who said Levi bar Darga acted with permission of the Sages?" he asks. Did he? The Gemara is silent.
The Gemara does offer exceptions to the Mishnah’s rule. In BT Gittin 58a, we learn that the excessive ransom rule does not apply to those with the capacity to become great spiritual leaders.
Another exception is found in BT Ketubot 5’a: "Our Rabbis taught: [If a woman] was taken captive and they [her captors] demanded from him [her husband] as much as ten times her value, the first time [this occurs] he ransoms her."
The Tosafot, in a commentary at BT Gittin 58a, add another qualifier: "When the captive is in mortal danger, we are to offer ransom even more than his value."
Rabbi Yosef Karo, in his classic codification of Jewish law, the Shulchan Aruch, sums it all up this way: "Captives may not be ransomed for more than their value for the sake of the social order, so that the abductors may not be encouraged to kidnap additional victims. But one may ransom himself using all the means at his disposal. One may also offer a large ransom for a Torah sage, or even if he is not a Torah sage, but just a sharp student with the potential for greatness." (See SA Yoreh De’ah ‘5’:4.)
Is this, then, the definitive answer? No, because there is the matter of Rabbi Meir of Rothenberg, a 13th century leader of German Jewry, who was held for ransom in a tower in Ensisheim. Citing the Mishnah’s rule that captives may not be ransomed for more than their value, he ordered his community not to ransom him. He died in captivity.
The debate continues to this day. Thus, for example, Rabbi Judah Gershuni, former head of Yeshivat Eretz Yisrael in New York, who now lives in Jerusalem, wrote in "Pidyon Shevuyim Li-Or Ha-Halakhah":
"The situation in Israel is entirely different [from ordinary pidyon sh’vuyim cases]. The murderous terrorists’ stated purpose is to murder Jews. They hold Jews captive in order to secure the release of a large number of terrorists in exchange for a few Jewish captives. Upon their release, these terrorists reorganize in their efforts to murder Jews and to plan terrorist acts throughout the country…."
As such, trading Israeli soldiers for terrorists "is forbidden."
Not so, says Rabbi Tanchum Rubinstein (see "Shichrur Mechablim Temurat Shevuyim," Torah Sheba’al Peh 31, 1990).
"[What] value do a hundred degenerate, contemptible terrorists have in comparison to one of our soldiers in captivity, whose life is more precious than a hundred of theirs? How can this exchange be considered ‘more than their value’? Is a terrorist considered of equal value to one of our soldiers?
"[Such an] exchange cannot be included in the concept of ‘their value.’ This is particularly true given the tradition in the [Israel Defense Forces] never to abandon even one prisoner of war, and an entire battalion is put at risk to save one prisoner from the enemy. This is the feeling that guides the Israeli soldier who never despairs while in captivity because he is secure in the knowledge that we will come to his rescue at any price. After all, as our emissary, he embarked on a mission to fight to protect our country and to secure our lives. It is as though we made a sacred promise that we will never abandon or forsake him under any circumstances."
Sadly, given the topic, both sides are correct. In Judaism, there are always questions, but not necessarily any easy answers.
There are prayers, however, that should be said for the well-being and swift return of Israel’s three kidnapped soldiers. Pray for Ehud ben Malka Goldwasser and Eldad ben Tovah Regev, who are being held by Hezbollah; and Gilad ben Aviva Shalit, held by Hamas. May the words of Isaiah (53:10) be fulfilled swiftly: "God’s captives will return and come to Zion in joy; eternal happiness will be on their heads, they will be invested with joy and happiness, and sorrow and anxiety will be banished."
Shammai Engelmayer is rabbi of the Conservative synagogue Temple Israel Community Center in Cliffside Park and an instructor in the UJA-Federation-sponsored Florence Melton Adult Mini-School of the Hebrew University. He is the editor of Judaism: A Journal of Jewish Life and Thought.