His Mercy is upon all of His Creatures

Introduction

Recent court rulings in Europe allowing the banning of shechita have once again highlighted the need to clarify the Torah's position on cruelty to animals. While it is reasonably safe to say that the Torah does not see shechita as problematic, and perhaps that this method was chosen specifically to avoid unnecessary cruelty,[1] it is more than equally clear that it is also possible to carry out perfectly kosher shechita in inhumane conditions. The purpose of this post is to examine what our general attitude to causing pain to animals should be, and how this should be implemented in relation to meat and animal products.

While causing unnecessary pain to animals is certainly prohibited, the fact that the Torah allows meat to be eaten through shechita shows that inflicting some amount of pain on animals for the purpose of human benefit is certainly permitted. The key question is how to evaluate how much pain may be inflicted in order to achieve what level of human benefit. Before we attempt to answer this question, we must first clarify the nature and severity of the prohibition of causing pain to animals.

Biblical or Rabbinic?

Prevention of pain to animals may lie at the root of the mitzvah to help unload a donkey struggling under its burden:

כִּי תִרְאֶה חֲמוֹר שֹׂנַאֲךָ רֹבֵץ תַּחַת מַשָּׂאוֹ וְחָדַלְתָּ מֵעֲזֹב לוֹ עָזֹב תַּעֲזֹב עִמּוֹ:

שמות כג, ה

"If you see the donkey of your hater crouching under its burden, would you desist from helping him? You must help him!"[2]

Shemos 23:5

The gemara discusses whether the purpose of this mitzvah is indeed the prevention of pain to the donkey, or simply to help the human owner of the animal. No definite conclusion is reached, and the gemara finds no practical halachic difference regarding this mitzvah.[3]

Elsewhere, the gemara invokes the idea of prevention of pain to animals in relation to the laws of Shabbos. If an animal fell into an aqueduct on Shabbos and it is not possible to bring it food, one may place cushions underneath the animal, in order to help the animal to get out. The gemara explains that although it is in general forbidden to render items useless on Shabbos[4] (the cushions will now be unusable), as this prohibition is Rabbinic, it is superseded by the Biblical imperative to prevent pain to animals.[5] This halacha is undisputed, and most of the rishonim see this as decisive in concluding that prevention of pain to animals is indeed a Biblical obligation.[6]

Nevertheless, the fact that this obligation appears as the rationale for the specific commandment of helping to unload a donkey, rather than being expressed directly as a more general instruction to prevent animal pain, is significant.[7] This explains why activities such as shechita are permitted, despite the pain involved. There is no blanket obligation to prevent all pain to animals; other considerations such as human benefit take precedence in some circumstances.

On the other hand, in some ways the motivation behind a mitzvah may be more important than the mitzvah itself. Concepts such as desirable character traits, communal awareness and settling Eretz Yisrael are the bigger picture behind other mitzvos rather than direct commandments themselves.[8] The Torah's concern for animal welfare should certainly not be taken lightly.

Orders of Precedence

The case of the animal in the aqueduct appears at first glance to give us the first rule regarding the importance of prevention of pain to animals – rabbinic injunctions are waived. However, closer analysis would seem to reveal that even this is not absolute. The implication is that lifting the animal out of the aqueduct is forbidden, despite the fact that this too would only be a violation of the rabbinic prohibition of moving a muktzeh item (the animal[9]) on Shabbos.

The Rambam indeed confirms that lifting out the animal is forbidden.[10] The Magen Avraham explains that it is impossible to compare all rabbinic prohibitions; some decrees explicitly stand even against severe Biblical commandments.[11] However, the Rid (R' Yeshaya d'Trani – 1180-1260, Italy) writes that if it is not possible to help the animal out using cushions, it is permitted to pull it out directly.[12]

Even according to the Rid, we may have a clear rule that any rabbinic edict gives way for the sake of preventing pain to animals, but we also need to explain what level of pain is included. It does seem obvious that the Torah was not concerned about pain caused by tasks commonly carried out by animals, such as donkeys transporting a reasonable load.[13]

Monetary Loss

A third gemara provides us with more information regarding orders of priority. A beraisa relates that once R' Gamliel's did not want to unload muktzeh items from his donkey until after Shabbos; the donkey died after Shabbos. The gemara explains that he didn't want to untie the load and let it fall as then the containers would break; he also could not protect them by putting cushions on the ground, as they would become dirty and unusable on Shabbos. As R' Gamliel was of the position that prevention of animal pain is only a rabbinic obligation, the best option was to let the donkey suffer.[14]

As explained above, the accepted halacha is not in accordance with R' Gamliel and the animal should be protected in such a situation.[15] The rishonim dispute what the correct course of action would be. Rashi writes that as with the case of the animal in the aqueduct, the rabbinic prohibition of rendering items useless on Shabbos is waived because of animal pain, and it would be permitted to use the cushions to prevent the loss of the containers.

Ramban and others argue that here there is no justification for using the cushions. R' Gamliel should simply have untied the load and let it fall, despite the fact that the containers would break. According to this view, the loss of the containers certainly does not justify allowing an animal to suffer.[16] There is no proof that Rashi disagrees with this – if there were no cushions available it is possible that Rashi would also agree that the only option would be to allow the containers to break.

However, it would not be right to extrapolate from here that any pain to animals must be avoided at all costs. According to Ramban, it is clear that the gemara is only dealing with a case of a small financial loss.[17] Furthermore, in this case the pain suffered by the donkey was significant.

The Vilna Gaon proves that causing pain to animals for human benefit can be permitted from another gemara, which allows the removal of the comb of a rooster in order to impede its fertility.[18] Presumably, the fact that shechita is permitted is not sufficient proof, as one could argue that the animal loses consciousness immediately.

Conclusions

From the above it should be clear that it is hard to derive comprehensive guidelines as to what level of animal pain can be justified for what level of gain. However, it is worth noting that all the sources for allowing actions that cause pain to animals do not even discuss the issue. Whenever the question of causing pain is raised, the only leniencies found are according to the view that the whole prohibition is rabbinic.

This leads me to conclude that the leniencies that do stand are only due to the relative insignificance of the suffering caused. There is no justification for leaving animals in pain for drawn out periods.

Another important observation is that the cases of animal pain in the gemara all involve tangible physical pain. While crowding animals into small spaces may be unpleasant for us to see and for the animals to experience, it is far from clear that this automatically constitutes the pain that is forbidden.

Regarding the facts on the ground as to how animals are treated, although I have not done any extensive research it is clear to me that the causing of real pain to animals, in a way that the Torah would not allow, is commonplace. One who is able to buy meat and other animal products from sources where these practices do not exist, or where they are minimised, should do so.

Currently, this will usually only be possible for those who have personal knowledge of specific farms or production lines. At least in Israel (and presumably in most countries), food labelling is not overly helpful. My understanding is that there is no official definition for terms like 'free-range' and 'organic', allowing unscrupulous companies to label almost as they choose. If anyone does have access to further information, I would be grateful if this could be shared in the comments.

A final thing to remember is that although it is true that religion is often under attack from animal rights groups, and there is no small amount of hypocrisy in the bans on shechita existing in some countries, this should not stop us learning from the areas in which these groups are correct. To paraphrase our first prime minister, we must fight bans on shechita as if there were no cruelty to animals, and we must fight cruelty to animals as if there were no bans on shechita.

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[1] The explanation of the Rambam (Moreh Nevuchim 3:26) and the Chinuch (Mitzvah 551). I do not plan to discuss here whether it actually is the case nowadays that shechita is the most painless way of slaughtering animals, or whether pre-stunning reduces the pain.

It would also be beyond the scope of this post to discuss whether pre-stunning necessarily renders an animal non-kosher – see for example Shu"t Sridei Eish, volume 2 (Yoreh Deah), siman 4 who writes about this at great length. On a practical level, even if the overwhelming stringent consensus of opinion were to shift, the complications involved would require multiple additional checks of the inside of the animal to affirm that the stunning did not make the animal a treifah, which in turn would make the cost of meat prohibitive.

It is worth pointing out that the use of standard anaesthesia would both solve the halachic problem (see Igros Moshe, Yoreh Deah 2:18) and be more effective at eliminating pain than stunning. This option is not considered for either religious or non-religious slaughter due to the high costs that would be involved.

[2] Translation follows Rashi.

[3] Bava Metsia 32a-33a

[4] This is known as ביטול כלי מהיכנו, literally negating the usefulness of a utensil.

[5] Shabbos 128b

[6] See for example Rosh, Bava Metsia 2:29.

[7] See Shu"t Radvaz Lilshonos HaRambam, siman 168 (Hilchos Rotzeach 13:8).

[8] According to the Ramban (Sefer Hamitzvos, 'forgotten' positive mitzvah 4), settling Eretz Yisrael is also an independent mitzvah.

[9] See Shulchan Aruch, Orach Chaim 308:39.

[10] Shabbos 25:26

[11] Magen Avraham 305:11

[12] Piskei Rid, Shabbos 128b

[13] Although presumably loading a donkey for no good purpose is forbidden, as this would not be accepted as normal. The measure is somewhat subjective, and what may have been considered normal and reasonable in one generation may not be in another.

[14] Shabbos 154b

[15] The death of the donkey is perhaps being used as a hint that R' Gamliel erred.

[16] The resultant death of the donkey, presumably more significant financially than the containers, was perhaps 'midah keneged midah.'

[17] Earlier the gemara says explicitly that a minor loss is not sufficient to allow ביטול כלי מהיכנו. The clear implication is that a major loss is sufficient, and this is confirmed by the Rambam (Shabbos 21:10). Thus the dispute between Rashi and Ramban here would seem to be simply whether the containers on R' Gamliel's donkey count as a significant loss.

[18] Biur HaGra, Even HaEzer 5:40. The gemara is in Shabbos 110b.

Migu and Alternative Pleading

Introduction

This post will be most beneficial for those with some Talmudic background, or those interested in Talmudic law concepts. I will however attempt to make things clear even for those with no such background.

The word 'Migu' (literally 'since') can represent more than one Talmudic concept, but here we are referring to the idea that a plea or claim may be believed in court only because an alternative plea or claim, not made by the litigant, would have been believed.

An illustrative example is a case where a lender wants to collect a debt, and produces a contract signed by witnesses to show that the loan took place. The borrower protests that he already repaid the loan, but cannot offer any evidence to that effect. Were the lender to deny receiving any payment at all, he would be believed, with the intact contract being sufficient evidence. One would not normally repay a loan without having the contract torn up[1], or at least getting a receipt.

What happens if the lender admits that he did in fact receive payment, but that this payment was for a different loan (or a gift)? The gemara says that this claim is also believed – since (migu) he is believed to say that no payment was received, he is also believed to say that payment was received but for something else.[2]

There are many examples of this concept in the gemara, each with its own nuances, and I cannot come close to covering the entire topic in one post. However, I will attempt to give an overview of some of the fundamentals. I hope this will be helpful for both beginners and the more experienced, and would love to hear if anyone thinks I have erred or if further clarification is required.

Indication of Truth

The gemara gives only a three-word explanation of the rationale behind this concept:

מה לו לשקר? – What purpose is there for him to lie?[3]

This simple sounding formula would seem to imply that the concept is likewise relatively simple. Rashbam writes that Migu is an indication that the claim being made is true,[4] and the Rashba elaborates, "Wherever there is a Migu, we believe that the truth is in accordance with the claim, as were he to come to lie, he should have used an alternative false claim which he would have been believed with."[5]

In other words, whenever a litigant comes to Beis Din and makes a claim, he could either be lying or telling the truth and we need to decide which of the two possibilities is more likely. When the claim seems improbable or unfounded, if an alternative claim could have been made which would have been accepted unquestioningly, it is unlikely that the person instead chose the improbable lie over a sounder one.[6] We therefore assume that the claim is true.

The main logical difficulty with this argument is that it appears to ignore the weakness of the claim itself. Although it may be improbable that a litigant would prefer a weaker lie to a stronger one, it may also be inherently improbable that the weaker claim is true.[7] Thus there is certainly no guarantee that the claim made is actually true, and it may not even be more likely.[8]

Status Quo Ownership (Muchzakut)

As far as I am aware, the earliest explicit written challenge to the Rashba's understanding of Migu was made by R' Baruch Teomim-Frankel (1760-1827, Eastern Europe). For reasoning similar to the above, he claims that Migu is no proof that the truth has been told; rather, "Such are the rules (midot) of the Torah" that one who had a winning defence is exempt from the claim against him even when he uses an alternative defence.[9]

I am naturally always sceptical of any 'explanation' that seems to claim exemption from providing a logical basis for a halacha.[10] In this case it is particularly difficult, as no Scriptural basis is provided for the concept of Migu and it appears to be based on logic alone.

R' Shimon Shkop (1860-1939, Lithuania) provides a modified version of a 'second aspect' of Migu, adding a logical explanation. As we wrote in Burden of Proof & Status Quo, it is not always easy to pinpoint where the burden of proof lies. R' Shimon argues that when a litigant has a possible winning defence, even if he is no more likely to be telling the truth, his position is stronger.[11] The corollary is that the burden of proof will more likely be on the opposition.

This explanation is an improvement on the "Such are the rules of the Torah" statement, but it appears to be an over-complication. I believe it also has a conceptual flaw, as Migu is usually called into play in cases where status-quo ownership is not in question.[12]

Salvation of Legitimacy

Based on the above, I believe that the correct interpretation of Migu is a slightly modified version of the 'Indication of Truth' idea formulated by the Rashba.[13] Migu is relevant in cases where one litigant inherently has the upper hand but potentially weakens his own case by presenting a problematic claim that we would not normally accept. However, this weakness is balanced by the argument presented above – the possibility that he is lying is also problematic, as a liar would normally have used the more believable lie. We therefore restore the default position, and this litigant retains the upper hand.

In the example we started with, the lender has a document that would be a sufficient proof of the veracity of his claim. He proceeds to tell us a rather improbable story about how in fact the borrower did pay him, but for another debt. Were there to be witnesses to the payment, this story would not be believed, despite the fact that the document was not torn up.[14] If there are no witnesses and the lender could have denied any payment was made, since (migu) it is just as improbable that the story was made up, we default to the documentary evidence indicating that payment is still due.

This understanding can help explain the difference between this case and another, appearing in the gemara elsewhere. In the second case, a claimant also produces a document as evidence of a loan, but the defendant responds that this document is a forgery. The claimant whispers to Rabbah that although it is true that the document is forged, this is only because he mislaid the authentic one.

Rabbah reasons that here too, the claimant is believed since he could simply have denied the unevidenced forgery claim outright. R' Yosef disagrees, arguing that a document now known to be forged is worthless. The gemara concludes that as the money is now in the possession of the defendant, we allow it to remain there, in accordance with R' Yosef's view.[15]

Why is Migu not strong enough to allow us to believe the whisperer in this case? We can now explain that although Migu gives legitimacy to the otherwise far-fetched claim that an authentic document was lost, legitimacy is not sufficient. In order to force a defendant to pay up, proof is required. As we do not see any valid document, there is no proof that any money is owed.[16]

Incentive for Honesty

While to my knowledge the Rambam does not ever explain the logic behind Migu, he does point to a welcome by-product of the concept. Should a defendant deny the charges against him but refuse to relate his version of events to Beis Din, the Rambam writes that this is not acceptable. The dayanim should explain to him that it is not his right to decide whether he must pay; he must simply state what happened and they will determine the halacha. Even if the defendant is exceptionally learned (and will know the halacha), the dayanim should reassure him that there is nothing to lose by telling the story, as any plea can be accepted based on the concept of Migu.[17]

Here we see that we are interested in persuading litigants to tell the truth, the whole truth and nothing but the truth, not merely as a tool to ensure that Beis Din arrive at the correct decision. The value of being truthful and encouraging others to do so stands alone.[18]

This stands in stark contrast to some other legal systems, in which alternative pleading allows litigants to present multiple contradictory claims and have each of them considered by the judge and/or jury. In other words, in our first case above the lender could claim that he was never paid, that he was paid with counterfeit money and that the payment was for another loan!

I have written before that there is no inherent problem with batei din taking on aspects of modern day law when appropriate.[19] I could have said that the same applies regarding alternative pleading – please believe me that Migu is far superior.

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[1] See for example Bava Basra 70a.

[2] Kesuvos 85a; Shevuos 42a

[3] Bava Basra 31a and other places. This wording does not appear in the gemara in relation to every case of Migu. However, I am not aware of any characteristic that consistently creates a logical distinction between the cases where this wording appears and the cases where it doesn't, and I have therefore assumed that the logic implied by this wording applies to all cases of Migu. Many commentaries indeed explicitly lump these cases together (although see this article for a case for such a distinction, as part of a long discussion of the concept of Migu. I believe that the claim made tentatively in footnote 27 there is contradicted by Kiddushin 64b).

[4] Bava Basra 36a (ד"ה לדידי). This also appears in Rashi to Kesuvos 12b (ד"ה אלא דאיכא מגו), but the Migu in the case there is atypical and requires further discussion.

[5] Responsa of the Rashba 3:81

[6] Even in cases where the relative believability of the two claims is not obvious, it seems reasonable to assume that a dishonest person who is not well-versed in halacha could consult with someone more knowledgeable before appearing in front of Beis Din, in order to ascertain which of the two claims will be accepted. See however Ramban, Kiddushin 64b.

[7] This is not always the case, as sometimes neither claim is inherently problematic and one claim is only 'superior' due to formal considerations. However, the rationale for Migu should hold true for all cases.

[8] This is analogous to the case of a 99% accurate medical test for a condition that only 1% of the population have. On average, only half of those testing positive for the condition will actually have it. See https://en.wikipedia.org/wiki/Bayes%27_theorem.

[9] Responsa Ateres Chachamim, Choshen Mishpat siman 20. This approach was perhaps made more famous by R' Elchanan Wasserman in Kovetz Shiurim (Volume 2, Siman 3), who calls this understanding כח נאמנות ('power of believability').

[10] See Torah and Morals.

[11] Chidushei R' Shimon Shkop, Bava Metsia siman 5.

[12] This can be shown most clearly from a case in Bava Basra 5b-6a, where a borrower claims that he paid back a loan earlier than the due date. Due to the societal norms of the time, this would not in general be a believable claim. However, the gemara questions what the halacha is if the due date has now passed and the borrower could just as easily have claimed that he repaid the loan after the due date and thus Migu becomes relevant. Here, the borrower is certainly the status-quo owner of the money that the lender claims to be owed; the only question is whether the borrower's plea is believable. Although there is also a status quo argument regarding the debt being intact, this is not in itself sufficient to transfer the burden of proof to the borrower.

[13] This understanding combines aspects of this shiur from R' Nachum Rabinovitch ז"ל and this article from יבל"ח R' Michael Avraham. With the amount that is written on this topic I am sure that my words are not original, but as yet I have not found the exact idea elsewhere.

[14] Shevuos 42a. The witnesses must be sure that the money was received in payment of a debt rather than as a gift (see Chidushei Ri Migash and other rishonim in his name there).

[15] Bava Basra 32b

[16] This is in accordance with Tosfos (ד"ה אמאי) who explain that Migu is not sufficient to force a person to pay. It may also be the meaning of the cryptic words of Rashbam (ד"ה אמאי), which other commentators have great difficulty explaining. While there are other aspects of this gemara (notably a similar case appearing beforehand, where the argument is regarding a land purchase rather than a loan) which require further explanation, I believe that this understanding of Migu is key.

[17] Hilchos To'en v'Nitan 6:1

[18] Some have even suggested that this is the entire purpose of the concept of Migu, but in my view there is certainly no proof to this from the words of the Rambam and this is a stretch based on the gemara.

[19] See Nezikin - the part of the Torah that we can change

Keeping a Distance

Introduction

I haven't written about Corona for a while, and sadly not that much has changed since the last time I did. Governments worldwide have struggled with the same trade-off between public safety and the economy (which also affects public safety in many ways), and this primarily remains a practical dilemma rather than a halachic one.

However, one of the questions involved contains a halachic element that I have not yet discussed. One view has existed from the beginning and is still heard frequently today, but as far as I am aware has only been implemented in some cities in Russia. According to this view, we should not lock everyone down but instead concentrate on the high-risk groups. We should allow immunity to build up among the young, while protecting the elderly (and other people at risk) by isolating them from the rest of the population.[1]

I do not plan to comment on the practicality of this idea or how effective it could be – that is for the experts to decide. The question I will analyse here is that assuming that it would be practical and effective, is this the correct approach to take from a halachic and moral perspective? Is it the equal responsibility of everyone to avoid endangering those at risk, or should this responsibility fall primarily on those who need protection?[2]

Trees and Pits

A possible source to learn from is a case disputed in the Mishna where the roots of one person's tree will potentially cause damage to a neighbour's pit. The Tanna Kama requires the tree to be uprooted, unless it had already been planted before the pit was dug. R' Yossi disagrees, maintaining that each neighbour has the right to dig or plant within their own territory, despite any damage that may later be caused. The gemara rules that the halacha follows R' Yossi.[3]

Elsewhere, the gemara explains that this dispute is based on something fundamental. The Tanna Kama's position is that one must distance oneself (and one's property) to avoid causing damage to others. R' Yossi's view is that it is the person who will be damaged who carries the responsibility to distance himself (or his property) from damage, and cannot force the would-be damager to take the preventative measures.[4]

Seemingly, the same principle can be applied on a macro-scale, to the potential damage caused by those who may be carrying coronavirus.[5] It is the responsibility of those who are at risk of damage (the elderly etc.) to distance themselves from others, and may be unreasonable to expect those who are not at significant risk to do so. However, there are two important caveats to this that we need to discuss.

Human Life

The most striking difference between roots of a tree and Covid-19 is that the roots will usually cause only collateral damage, whereas Covid-19 poses a severe danger to life for some. While this does not alter the fact that the onus of distancing is primarily on those in danger, it does mean that if for any reason those in danger are not isolating, others may not be able to absolve themselves of responsibility.

The Minchas Chinuch famously (and controversially) writes that there is no obligation to save the life of a person attempting to commit suicide.[6] However, not only is this widely disputed[7] - even the Minchas Chinuch does not sanction actively increasing the danger to the life of one attempting suicide. If a person jumps in front of a car (especially if this is done carelessly rather than intentionally), the driver must certainly try to swerve out the way if this will not endanger anyone else.

On the other hand, the risk taken by many senior citizens is a calculated one. Going shopping or to see friends, even while taking reasonable precautions (keeping a 2m distance and wearing a mask), does increase the chances of illness and death. However, many are aware of this but are more afraid of being isolated from the world for an indefinite length of time – especially when they may not have that long left to live anyway.

It is hard to criticise decisions of this nature,[8] or even to give clear recommended guidelines as to when it is 'worth the risk.'  However, under these circumstances, it would certainly be unreasonable to expect those who are not in danger to curtail their own everyday activities in order to mitigate the risk that the elderly have chosen to accept.

Flexibility

Until this point, we have discussed the default position according to Chazal. However, as I wrote in Nezikin - the part of the Torah that we can change, this is not set in stone. If we return to the case of the tree and the pit, nowadays the accepted rules (enshrined in law in at least most countries) dictate that tree owners are responsible for damage inflicted by the roots in a neighbour's property.[9] As this is a monetary issue, accepted practice overrides the default halacha.[10]

Although enforced lockdowns are not inherently monetary in nature, measures to prevent damage are also subject to accepted societal norms and fall into the same category. Those appointed by the public are authorised to dictate what uses are permitted in public areas, in the same way that these authorities have the right to regulate the use of cars. Furthermore, the fines imposed for breach of these rules are certainly monetary, and the government have the right to decide that contrary to the accepted default halacha, the potential damager is the one who has to pay for failing to keep his distance.

The problem with applying this in this instance is that the very same ethical question may already have been disputed by the Tana'im and ruled upon by Chazal. While technically we may have the authority to set new rules, it would be a bold step to do so in defiance of Chazal's decision.

A possible alternative to such defiance would be to demonstrate that something inherent has changed in the world, and that although the principle that "the damaged must distance himself" was true in the time of Chazal, it is no longer true now. This would potentially justify modern attitudes both to trees and to corona restrictions.

After writing this, I discovered a ruling of R' Osher Weiss discussing the permissibility of building in a manner that deprives others of view, air and similar and is closely related to our discussion. I feel that it will be beneficial to translate the relevant sections, firstly regarding the general principle:

"The basis for this question is the changing reality of life. It appears that in ancient times, people were not at all particular about some matters or they were not relevant, whereas in our time we see clearly that people treat these same matters with great importance. …

I have no doubt that had these questions arisen in ancient times, they would have made clear rules and conditions regarding the distance that one must keep in order to avoid impinging (on these matters). …

If I had the ability to do so, it would be imperative to gather all the heads of Batei Din, with the agreement of the Gedolei Hador, in order to set minds and hearts into making institutions and fixing ways to rule in relation to these matters and many similar matters in many areas of Choshen Mishpat."

Now, R' Osher moves on to his conclusion in his case, making an oblique reference to the words of R' Yossi regarding the tree and the pit:

"In this case, the practical conclusion appears to be that neighbours in a common building cannot build in a way that will deprive each other from those things that are clearly important to people, as partnership in this building is contingent on respecting the rights of others. …

However, neighbours who are not in the same building, rather on two sides of the street or similar, there is no place for this claim, as each acts within his own property and they are not obligated to each other."

"Each acts within his own property" are the words of R' Yossi, allowing the tree to be planted despite the potential future damage to the neighbours pit. Here, R' Osher defaults back to the rule that "the damaged must distance himself." However, R' Osher continues:

"Nevertheless, if Beis Din see that one person's profit causes great tangible damage to the quality of life of another, he should be prevented from doing so, as he has no right to deprive others of basic living." [11]

In other words, before applying the rule that "the damaged must distance himself," we must think about whether it is appropriate to do so in the situation. The same applies to corona-related restrictions, only on a countrywide level.

To Conclude

In summary, although the default position is indeed that the primary responsibility lies with those who are in danger, this does not allow the rest of us to act in a way that increases that danger. While every effort should be made by the government to allow people to go about their everyday lives wherever possible, every decision should be taken with care.

I must also re-iterate the position expressed when I first wrote about the topic – the government is the only body with the authority to decide what restrictions are necessary and reasonable. We can question and criticise and they may very well make mistakes, but to paraphrase a Mishna in Pirkei Avos, "Don't expect them to accept your view – they have the authority, not you."[12]

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[1] While in some Russian cities this has been enforced by law, it may also be possible to encourage people at risk to isolate on a voluntary basis, facilitating this as much as possible by providing aid.

[2] The question makes five assumptions, of which the first four are the clear consensus but the fifth is much less clear:

1) For the majority, Covid-19 is potentially unpleasant but not significantly more dangerous than common viruses such as the flu.
2) For a minority of people (including the elderly, those with respiratory conditions and cancer patients), Covid-19 is highly dangerous.
3) Covid-19 is highly contagious.
4) Social distancing is effective at slowing the spread of Covid-19.
5) If everyone else is living their lives normally (or close to normally), the high-risk groups will need a higher (but still practical) level of restriction in order to keep themselves safe.

[3] Bava Basra 25b

[4] Bava Basra 18b

[5] While the principle that "the damaged must distance himself" certainly has limits (see for example this lengthy article in Hebrew), our case would seem to be clearly within most of these limits (the two possible exceptions are discussed below). Although carriers spread the virus in the public domain rather than from their own property, the virus is carried within a person's body (the private domain) and even when it leaves (e.g. when breathing), it does not cause damage immediately.

It is important to point out that based on this logic, theoretically even those confirmed positive for Covid would not have to isolate. However, practically if this was allowed it would likely be impossible to keep all of those in the at risk groups safe.

[6] Mitzvah 237 (in new editions. In the older prints, this appears in Kometz Hamincha siman 230).

[7] Rishonim such as Maharam MiRotenburg (Shu"t, Defus Prague siman 39) wrote the opposite explicitly. See Yabia Omer 8, Orach Chaim siman 37 for a summary. However, it should be pointed out that the Minchas Chinuch has a strong argument from the gemara, which appears to equate saving another person's life and returning a lost item, with the only difference being the obligation to spend money when this is necessary to save a life. Those who disagree maintain that a person does not have monetary ownership over his own body, a claim that is far from straightforward from a halachic viewpoint. See Amud Hayemini, siman 16, from page 195 onwards.

[8] As I wrote in Suicide and Euthanasia, there are even circumstances under which suicide cannot be criticised.

[9] This is actually stricter than both views in the Mishna – even if the tree was planted before the neighbour dug his pit, the tree owner must pay for any damages.

[10] See this ruling (in Hebrew), in particular in the name of the Pischei Choshen regarding the law of the land.

[11] Shu"t Minchas Asher 1:98

[12] Avos 4:8