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

Foetal Life

For those who keep halacha and for those who don't, few questions are as significant as the questions regarding when life begins and ends. Death is defined relatively easily as the permanent cessation of all biological functions that sustain a living organism, and although drawing the line is not always simple (e.g. regarding brain death), it is at least clear what the question is.[1]

However, when it comes to the issue of prenatal life, public discussion often gets distracted by two virtual irrelevancies. The first is the 'pro-choice' argument that women must not be told what to do with their bodies. In reality, this argument assumes that the answer to the real question is already known – the foetus has no life of its own and the only living thing being affected is the mother. By focussing on the rights of the mother (to commit potential murder), the real question is ignored.[2]

At the other extreme, the Catholic Church forbids any form of contraception or even artificial insemination, and Jewish conservatives sometimes feel the need to replicate this (perhaps so as not to be seen as 'less religious' or 'progressive'). R' Moshe Feinstein already pointed out the obvious, that these considerations have absolutely no bearing on halacha and should be cast aside.[3]

The Moral and Philosophical Perspective

Before we discuss Torah sources that may reveal when life begins according to halacha, it is important to point out the dilemma we would be in without these sources. Science may be able to tell us what an unborn baby can do at different stages of its development; it cannot define for us what constitutes sacrosanct human life. Thus for those who believe in the sanctity of human life but not in the Torah (or in any Divine revelation), it is extremely hard to justify any form of abortion.[4]

The same is true for those who do believe in the Torah, but only as an additional system that we are obligated to, unrelated to intuitive human morals.[5] As I have already written, this is not my position (see Torah and Morals). So without further ado, I shall begin to analyse the relevant sources.

Life and Soul

The Mishna tells us that if a woman is having great difficulty in giving birth, we dissect the baby inside her and remove it limb by limb, as her life takes precedence over the baby's life. However, once the majority of the baby has come out (alive) we must not harm it – we do not push away one soul for the sake of another.[6]

The clear indication is that the baby is not a 'soul' until birth,[7] and for this reason the mother's life comes first. On the other hand, even the unborn baby has independent 'life' that is only superseded by the life of the mother (which also contains a soul).

Another Mishna tells us that if a pregnant woman is sentenced to death for her own crime, we do not wait for the baby to be born before carrying out her punishment. The gemara derives this halacha from a pasuk, but first states that in fact it would have been obvious as the baby is part of the body of the mother. The only reason that the Mishna needed to record this halacha, and that the pasuk is required, is because otherwise we could have argued that it would be not be fair to deprive the father of his rights to the baby.[8]

Why was it at first obvious to the gemara that the life of the unborn baby is not important enough to justify delaying the mother's execution? The wording of the gemara's question would seem to imply that the baby is simply part of the body of the mother and therefore included in the death sentence. So does the baby have independent life or not?

I believe that the answer is simple, and can be found within the Mishna itself. The Mishna continues that if the sentenced lady has already 'sat on the birthing stool', we do wait for her to give birth. It appears that only at this point does the baby have independent life. Thus, the gemara quoted above only needed to explain that the mother's life supersedes the baby's because birth was already imminent. At an earlier stage, the unborn baby is simply a part of the body of the mother and the permissibility of its dissection in order to save the mother is obvious.[9]

Thus, we have three different halachic stages in the development of a baby. For most of pregnancy, the baby does not have its own life at all. Life begins when the baby is about to be born, and the 'soul' only enters the baby at birth. We now need to investigate some of the halachos that may or may not be dependent on these three stages. It should go without saying that due to the severity of the issues involved and the need for assessment on a case-by-case basis, the following should not be taken as a definitive ruling.

Shabbos

Are the laws of Shabbos deferred in order to save the 'life' of an unborn baby? It may surprise some readers to know that the answer is not straightforward,[10] and that while Behag ruled in favour of saving the unborn baby,[11] the Ramban quotes those who disagree.[12]

The first gemara quoted above continues by saying that if the mother dies during childbirth, if necessary we carry a knife through the reshus harabim in order to cut open the mother's dead body in an attempt to save the baby.[13] The Ramban cites this gemara in support of the view of Behag, but points out that there is in fact no conclusive proof from here. Once the mother has died and is no longer sustaining the baby, her body is no more than a door behind which the baby is locked. If the baby is still alive, it has already been born.

Elsewhere, the Ramban assumes that the Behag is correct but asks what the justification is for the laws of Shabbos being relaxed for the sake of being which is not a 'soul'? He answers based on the dictum "Transgress one Shabbos for him, so that he will keep many Shabbosos."[14] As such, Shabbos can be broken irrespective of the current status of the baby.[15]

Murder and Abortion

The Torah tells us that one who strikes a pregnant woman, causing a miscarriage, must pay damages. Capital punishment is not exacted.[16] This is perhaps the clear source in the written Torah for Chazal's understanding that an unborn baby does not have a soul.

However, the gemara derives that a non-Jew is liable to the death penalty for even this level of bloodshed.[17] Although there may technically be no soul (or even life), it is quite clear that performing an abortion is in general a severe transgression. The gemara compares even masturbation to murder,[18] despite the fact that there is clearly no life involved. Intentional misuse of one's reproductive organs contains an element of contempt for human life, even when no-one is harmed by it.[19]

Furthermore, even if abortion is not murder and the foetus is just a part of the mother, it is certainly forbidden for a person to destroy or even to injure a part of his or her body.[20]

Extraordinary Circumstances

All of the above shows clearly that abortion is certainly forbidden under normal circumstances. Of course, no sane woman intentionally becomes pregnant in order to abort, so when the question arises, the circumstances tend not to be normal. In each case, it will be necessary to examine whether there can be any dispensation regarding the problems that we have raised.

The question of self-harm will rarely be an issue. Surgery is permitted in order to prevent pain,[21] and this includes psychological pain.[22] However, we must point out that abortion is not just self-harm, as the father also has a stake in the baby. Any leniencies will be dependent on the consent of the father to performing the abortion.[23]

Even with the consent of the father, there can be no justification for terminating a pregnancy if we may even do melacha on Shabbos to save the baby. Unless we are willing to reconsider the accepted ruling regarding Shabbos, to my mind the only circumstances under which abortion may be permitted (if the mother is not in danger) are when the baby is known to be deformed to the extent that it will never be able to keep mitzvos. Here, the logic of the Ramban does not apply and we would not allow the unborn baby to be saved on Shabbos.[24]

May we all be blessed with healthy children and further generations!

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[1] See https://en.wikipedia.org/wiki/Death#Problems_of_definition

[2] Some have argued that even were the foetus to be an independent living entity, the mother should not be forced to preserve it using her own body. Were a person to be forcibly used as a dialysis machine for another, thus saving the other person's life, it would not be unethical to disconnect oneself and thus cause the other's death (see this Wikipedia article).

However, this argument is problematic for two reasons. Firstly, the claim regarding the 'human dialysis machine' is itself incorrect. Detaching oneself in such a situation would be murder, and there simply is no justification for murder unless one's life is being endangered by the other person. Secondly, even were there to be such justification, this certainly would not extend to a case where a person himself was responsible both for another's need for dialysis, and for becoming attached to this person in the first place. Only a case of rape would be comparable to the case of the person forcibly used for dialysis.

[3] Igros Moshe, Even Ha'ezer 2:11. While many within the Catholic Church also forbid abortions even in order to save the life of the mother (see Wikipedia), thank G-d no Jewish authority has followed suit on this issue as the mishna explicitly permits (and obligates) such action.

[4] Of course for these people it is also hard to see why human life would be especially sacrosanct (i.e. inherently more important than animal life). Those who follow atheism to its logical conclusion have indeed posited that there is no inherent difference between humans and animals, and have legitimised infanticide in some circumstances (see https://en.wikipedia.org/wiki/Peter_Singer#Abortion,_euthanasia,_and_infanticide).

[5] See https://mikyab.net/posts/3688 (in Hebrew).

[6] Ohalos 7:6

[7] See Rashi to Sanhedrin 72b who writes this explicitly in explanation of this halacha.

[8] Arachin 7a.

[9] See also the Ran's commentary to the Rif, Chulin 19a, who writes in a matter of fact way regarding the sentenced woman "we are not concerned about the baby" at this stage.

[10] The sources discussing the symptoms which permit a pregnant woman to eat on Yom Kippur (see Mishna Yoma 82a and the gemara thereon) are not conclusive, as the concern maybe the safety of the mother and not just of the unborn child.

[11] Siman 7, Hilchos Shabbos chapter 18.

[12] Toras HaAdam, Sha'ar HaMeichush, Inyan HaSakana. Interestingly, the Noda Biyehuda writes that we can break Shabbos to save the baby only if the woman is about to give birth, the distinction that we made above regarding life (Mahadura Tinyana, Choshen Mishpat siman 59. See also Chidushei R' Chaim Halevi, Hilchos Rotzeach).

[13] Arachin 7a-b.

[14] Chidushei HaRamban, Niddah 44b.

[15] This explains why according to Behag, melacha can be done on Shabbos even for the sake of a foetus that is not just about to be born. This is also the generally accepted halacha nowadays (see for example Shemiras Shabbos Kehilchasa 36:2). However, I would question how far the dictum of breaking Shabbos for the sake of future Shabbosos can be taken. Some have already ruled that Shabbos can be transgressed even to save fertilised eggs in a lab freezer (see this responsum). Extrapolating further, one could argue that fertility treatment could also be permitted on Shabbos.

[16] Shemos 21:22-3.

[17] Sanhedrin 57b. Non-Jews are liable to the death penalty for even lesser crimes such as theft and eating a limb torn from a living animal. However, in this instance, the crime they are killed for is murder. Some see this as an indication that killing a foetus is considered murder for Jew and non-Jew alike (see Igros Moshe, Choshen Mishpat 2:69), but this is far from conclusive.

[18] Nida 13a

[19] The Chavas Ya'ir (siman 31) indeed writes that abortion is forbidden as a form of 'destroying seed.' This is far from obvious, as this prohibition is directed at the manner in which the seed is extracted from the body rather than what is done with it after it has left the body (the destruction of laboratory sperm is not included). However, abortion is clearly a more severe version of the element of contempt for human life involved in masturbation.

[20] Mishna, Bava Kama 90b.

[21] Shabbos 50b

[22] Tosfos there (ד"ה בשביל צערו). Some authorities even allow surgery for aesthetic purposes alone (see Igros Moshe, Choshen Mishpat 2:66), but this is far from conclusive (my own writing on this topic in Hebrew is available on request).

[23] It is only here that there is an understandable conflict between the Torah and the 'pro-choice' / feminist movement. The Torah's position is however unambiguous – until birth, the father has ownership of the foetus even if he is not married to the mother (Bava Kama 43a). Only the product of an incestuous or adulterous relationship may not be owned by the father according to some views (see Yerushalmi quoted by Tosfos there; Minchas Chinuch 49; Techumin volume 9 page 57).

[24] This of itself is not proof that abortion would be permitted, as the life of such a baby also has a value (albeit not one significant enough to permit melacha on Shabbos prior to birth). My inclination is that parents would not be obligated to continue such a pregnancy, but this is subjective. 

Free Will & Hashem's Omniscience

Introduction

One of the oldest philosophical questions within Judaism (and outside of it) is the possible contradiction between Hashem's Omniscience (knowledge of all) and our own free will. The question was perhaps made famous by the Rambam, but was already recorded many years previously.

The apparent contradiction is that if Hashem knows everything, including future events, a human (or any other creation) cannot possibly choose to act differently to the way Hashem knows he will act. Thus, even though a person is unaware of what he himself will decide in the future, he cannot be said to be acting out of free will.

Whenever there are two seemingly contradicting principles, there can only be three options:

1)      The contradiction can be resolved.
2)      The first principle is wrong.
3)      The second principle is wrong.

It may come as a surprise to many, but to some extent, all three possibilities have their advocates among the rishonim. We will start by analysing the first option, which is perhaps the most commonly accepted and the position of the oldest Jewish written works.

Is there even a problem?

Although many do believe that this contradiction can be resolved, there is considerable variance within this school of thought as to how easy the resolution is. R' Sa'adia Ga'on (10^th century, Egypt/ Eretz Yisrael / Baghdad) dismisses the whole issue as a non-question – although Hashem knows what a person will do, this knowledge is not the cause of the person's choice. On the contrary, the person's choice affects Hashem's knowledge in the past.[1]

What was obvious to R' Sa'adia was far from obvious to others. The idea that the future can affect the past (Retrocausality) is a topic debated by philosophers and is not limited to theological discussions.[2] It is also worth noting that R' Sa'adia's argument is not dependent on any Divine qualities that are beyond our understanding – according to his logic, there would also be no inherent problem in a human foreseeing a free will choice made by another human with 100% accuracy.[3]

By contrast, R' Bachaye ibn Pekuda (11^th century, Spain) writes that were we able to understand the resolution of this contradiction, Hashem would have revealed it to us.[4] In other words, although there is a resolution, we are incapable of understanding it.

This view is echoed by the Rambam, although he adds more of an explanation as to why we are incapable of understanding. While humans have characteristics that are separable from their essence, Hashem does not. No positive characteristics can be attributed to Hashem – He and 'His knowledge' are One. As this is a concept that us humans cannot fully fathom, we are also incapable of understanding how Hashem attains knowledge of human choices. The only thing we can be assured of is that we do indeed have free will.[5]

The problem with this is that even after we accept that Hashem's capability of seeing the future is not something we can understand, we are left with a contradiction from the human point of view. Unless we accept the retrocausality of R' Sa'adia Ga'on,[6] Hashem's unerring knowledge of the future means that there is no possibility that we will in fact decide something different.

It would therefore appear that when the Rambam insists that we have free will, this only means that our decisions are made willingly. We do not actually have any real option to do something different to that which Hashem knows we will do.[7] This is notwithstanding the fact that the Rambam spends this entire chapter stressing that free will is a fundamental principle of the Torah[8] and that those who deny it are foolish.

If this understanding of the Rambam is correct, we can better understand the criticism of the Ra'avad of his words. The Ra'avad writes that a wise person should not raise difficult questions without resolving them, lest this causes any heretical thoughts in the mind of the reader. This criticism is more understandable if the Rambam himself could have helped us by clarifying that free will is more limited than we may have thought.[9]

'Inability' to do the impossible

We now move on to the second option above. Suggesting any limits to Hashem's knowledge may seem heretical, but this is based on a lack of both knowledge and understanding. Nowhere do Chazal state in an unequivocal manner that Hashem foresees all future events (although it is quite clear from Tanach that He does foresee many of them).[10]

The Rambam's himself, while listing Hashem's Omniscience as the tenth principle of faith, does not mention the future. His statement of Hashem's knowledge of all future events only appears in the context of his discussion of free will. It appears that the Rambam derived this concept from the general principle that Hashem is perfect and is lacking nothing.

However, as the Rambam writes elsewhere, it does not make sense to describe Hashem as able to do the logically impossible, such as creating another entity like Him.[11] It follows that if knowledge of our future decisions is a direct contradiction to our free will, Hashem's 'lack of ability' to create such a contradiction would not reflect any real lack. He simply chose to grant us free will, thus 'forgoing' His own prior knowledge of what we would choose.

This is the position of Ralbag (1288-1344, Southern France).[12] The Rambam could not follow this line of logic, as his view is that time itself is merely a creation of Hashem.[13] The idea that Hashem's own creation could limit Him is itself a contradiction.

One thing should be clear. As the view of the Ralbag does not attribute any lack of perfection to Hashem, and the dispute revolves around the philosophical understanding of the concept of time – this view is well within the acceptable limits of Jewish religious belief.[14]

Determinism

Perhaps even more surprisingly, R' Chisdai Kreskas goes to the opposite extreme. Preferring to accept the position that Hashem does foresee all future events, as well as due to other philosophical arguments, he concludes that human actions are always just the net results of all the natural causes acting on a person (both from within the person's nature and from external sources). Although we do not feel anything forcing us to act in a certain way, the reality is that we have no choice.

This leads to the obvious question as to the justification of reward and punishment for our actions, which are not in our control.[15] R' Chisdai is clearly aware of the problem and writes at great length to attempt to resolve this. He first claims that reward and punishment are necessary tools with which to influence our decisions for the good (these are some of the many factors that force us to act in the way we do), and this end justifies even the punishment of the innocent.

However, he goes on to ask that if this is the case, why can't there be punishment even for those who act entirely under noticeable duress? His conclusion is that in fact reward and punishment is not for the actions themselves that a person carries out, rather for the frame of mind in which they act. One who happily serves Hashem earns reward for his joy, and the same is true for the converse.

With this, R' Chisdai Kreskas concedes that regarding our feelings, we do in fact have free will. Although he does not revisit the question of Hashem's prior knowledge of everything, the clear implication is that Hashem can only foresee what our actions will be, not our mental attitude towards them. Thus this view actually combines both the second and third options, limiting both Hashem's knowledge of the future and our free will!

On a philosophical level, it is hard to see what is gained by this strange combination. Nevertheless, as R' Chisdai Kreskas does not deny the concept of reward and punishment or the justness of the ways of Hashem, this view also certainly remains within the limits of legitimacy.

May we use our free will (whatever level we have) for the good, and on Yom Kippur attain forgiveness for any bad decisions we may have made in the past!

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[1] Emunos v'Deyos, Ma'amar 4.

[2] One of the main arguments against the possibility of retrocausality is that were it possible to have an effect on the past, this would lead to time paradoxes. On the other hand, retrocausality is observed within quantum mechanics. Therefore, R' Michael Avraham argues that retrocausality is only possible within deterministic processes and not cannot be affected by decisions made with free will.

[3] Of course, humans cannot do anything with 100% accuracy. However, this is due to human qualitative deficiency, rather than any logical impossibility.

[4] Chovos Halvavos, Sha'ar 3 (Sha'ar Avodas HaElokim), chapter 8.

[5] Hilchos Teshuva 5:5

[6] The Rambam appears not to – otherwise the question would not require an answer unfathomable to us.

[7] Thus the Rambam is not as strong an adherent to option 1 above – his position is somewhere between option 1 and option 3.

[8] R' Nahum Rabinovitch calls this the 'fourteenth principle of faith' of the Rambam (Mesilot Bilvavam, p.54).

[9] I understand the answer that the Ra'avad suggests, that Hashem knows 'like the knowledge of astrologers, who know through an external power how another will act', as being equivalent to my understanding of the Rambam. The Ra'avad's conclusion, that this answer is not enough, is presumably because of a reluctance to accept that free will is limited in this way.

[10] The Rambam understands that a statement to this effect, together with the principle of free will, appears in the Mishna in Pirkei Avos (3:15). However, this explanation is not obvious from the context of the Mishna, and neither is it unanimously agreed upon (see for example Bartenura for an alternative explanation).

[11] Moreh Nevuchim 3:15

[12] Milchamos Hashem, Ma'amar 3, Chapter 4. This was also later the position of the Or HaChayim (Bereishis 6:5) and the Sh'lah (in his introduction).

[13] Moreh Nevuchim 2:13. It is however unclear how the Rambam knew that time was a creation.

[14] See The Limits of Legitimate Belief, where we supported the view of the Ra'avad, that the same is true even regarding the mistaken view that Hashem has a physical form.

[15] Or Hashem, Ma'amar 2, Klal 5.