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