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Spring 2020

Halacha in the Time of Corona

On social distancing and deontology.

Sometime in the eighteenth century, a colorful question found its way to the desk of the foremost halachic authority in Europe. A Jew who had clearly found both social liberty and considerable wealth – and with these the pangs of aristocracy – wanted to know whether, according to Jewish law, it was permissible for him to hunt wildlife on the vast grounds of his own estate. This was not a typical halachic question. It thrust the famed rabbi of Prague, known as the Noda Biyehuda, into new terrain in order to formulate a response. His first argument was that hunting is cruel, and allowed only for necessity. He distinguished between hunting for subsistence and for sport. Hunting in order to make a living is not cruelty. But when the aim is the hunt itself, it becomes immoral, and is forbidden by halacha. His second argument was that hunting is religiously prohibited because of the danger the hunter brings upon himself. Again, if the hunter is poor it is permitted; the Talmud notes that manual laborers endanger themselves for their livelihoods, a fact it seems to condone. As the rabbi of Prague reasoned, a poor hunter has no other option. But when the hunt is for fun, the hunter endangers himself illegitimately.

The distinction between subsistence and sport, or livelihood and leisure, is interesting because the halachic system generally tends to be heavily deontological. A consequentialist, such as a utilitarian, could likewise defend such a distinction, but by comparing and weighing likely outcomes. She might ask: How much enjoyment does the hunt provide the hunter, and at the expense of what pain to the animal? What would the life of the impoverished hunter look like were he forbidden to hunt? But that mode of reasoning is not conducive to categorical distinctions, such as those between subsistence and sport, certainly not between livelihood and leisure.

For certain types of ethical questions, deontology facilitates the kind of categorical distinction that can guide individuals in situations where either calculation of outcomes is too complex, or where wider social considerations render it just wrongheaded. And this is of course true even if you happen to be a consequentialist: rule-based ethics, such as deontology, provide a rule of thumb for ethical living in complex situations. For example: you might or might not agree with a distinction between eating meat and hunting for sport. But you are likely to concede that it is ethically worthwhile for people to live by such a distinction.

One of the challenges now facing Western society is learning to think in deontological terms about wide-reaching risk when making mundane decisions in the living of a normal life. During a pandemic, it would seem, individuals need to think in a rule-based way. Our common consequentialist tendencies do havoc to our best intentions. We need rules of conduct. Rather than calculating the probabilistic likely outcome of any particular action, what becomes important is its definition in categorical terms.

You can leave your home to shop in a supermarket, but not for a short walk in the park. Why? (You’ll be careful?) Because if you think in terms of an entire society the categorical distinction reaps benefits. An iron-clad distinction between subsistence and sport, or between livelihood and leisure, will do the trick. But it will work only if people can think in such terms. Those are the types of distinctions we need to inculcate, and it is that kind of reasoning to which we must become accustomed, when dealing with an open-ended, unknown threat and public crisis.

But deontology is not only a useful rule of thumb. If you do not happen to be a thoroughgoing consequentialist, you can probably identify with the idea of a distinction between subsistence and sport, from an ethical perspective. Causing pain for sport is cruelty; for subsistence perhaps not at all. Should the livelihood of the average middle class person be categorized as subsistence? Strictly speaking, perhaps not. But viewed in deontological terms, all livelihood might legitimately feature within subsistence. By similar reasoning, any trip to the supermarket or work can be viewed as different from a stroll in the park.

Once a distinction is in place, we ask what exactly should be included on each side of it. Is going out to a café an element of bare subsistence? Is a synagogue a basic need? Is psychological health the same as physical wellbeing? Should all these questions be viewed subjectively, according to the individual and her needs? These are questions that arise only once you begin to think in deontological terms, and which receive answers only from within that perspective. If people find themselves under lockdown for months or years, at what point might one say that the lack of cultural forms of expression and appreciation crosses the line into the realm of subsistence and basic need?

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Two centuries after the would-be hunter, a sportsman asked a contemporary variant of his query of the leading American halachic authority: Is one allowed to play competitive sports for a living, even though they can be dangerous? Rabbi Moses Feinstein permitted professional competitive sport, since it is the player’s livelihood. The difference between these cases, however, is glaring. Professional sport is considerably different than the livelihood of a poor hunter. This might explain why Rabbi Feinstein viewed the allowance to endanger oneself for one’s living slightly differently than his eighteenth century predecessor. According to this more contemporary variant, endangering oneself is permitted only when the chances of danger are very low. And still, it is only permitted for one’s livelihood. Even the slightest endangering of oneself is forbidden for leisure. The basic form of the older distinction is identical. But the distinction looks rather different when it is not about a poor hunter but a professional sportsman. In this contemporary rendering, the fact that something is for one’s livelihood legitimizes the taking of risks, but only slight risks.

Such deontological thinking invites additional distinctions that prove relevant to our present times. Rabbi Feinstein followed the logic of the categorical distinction. He reasoned that if you are allowed to employ a manual laborer, that means that you are allowed to risk someone else’s life also, as long as it is for their livelihood. Accordingly, you can play dangerous competitive sport not only at a risk to yourself, but also at a risk to other players. However, he continued (and this is crucial), that only holds true when the other person entered the game willingly. You may not risk another person’s safety (even by very small chances) unless that person volunteered to risk their safety.

This is again a deontological consideration, and is aptly relevant to the types of challenges we face today, with the requirement of social distancing. You go to a supermarket, and meet people on the way. You might ask yourself: Were they also going to the supermarket? Social distancing might be relaxed for the purposes of work or crucial services. But that might only hold true for endangering oneself. When the concern is endangering another, you might ask whether that other person is also involved in seeking subsistence, and whether the other person willingly accepted the (even remote) risk upon themselves. The questions become: Who are the people you endanger? Are they also involved in crucial work? Are they endangered willingly? You go out to a café; do you endanger the waiter, other clients, or bypassers in the street?

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We have (intentionally) been overlooking three crucial particularities of our predicament. There is an uncanny dissonance between these private, personal queries about the risk to one’s life and public policy in times of a pandemic. Rabbi Feinstein introduced the moral condition that any person endangered would have willingly volunteered for that endangerment. But no one is volunteering to be endangered in times such as ours. We are all in this unwillingly. There is a second important distinction: When it comes to fending off a plague, self-isolation is just as much about protecting others from infection as it is about concern for oneself. And finally, if the primary concern is that national health systems will be overwhelmed and collapse, those ultimately endangered include not only the infectors and the infected, but anyone else who will ultimately require health services.

These questions about the moral and religious legitimacy of risk-taking are by too individual-oriented to tackle the wider problems of epidemics. While there is plenty of precedent for halachic rulings during plagues, these generally center upon teaching people to be lenient. Some rabbis exhibited great innovation and leniency during epidemics. Most famous is Rabbi Israel Salanter’s insistence upon public eating on Yom Kippur, during the 1848 Cholera epidemic in Vilna. But that kind of ruling is decidedly distinct from risk-taking rules, and for good reason. While similarly deontological, it is mostly about shocking the populace into realizing the importance of adjuring normative halacha in the face of saving lives.

During the current crisis, there has been radical divergence on this issue between rabbis who immediately closed synagogues before being required to by law, and those who left them open later. My own understanding is that deontological reasoning was, to a degree, responsible for leading both groups in these opposite directions. The Achilles’ heel of rule-based ethics is its interface with empirical data. You must continuously ascertain that your rules engage reality correctly. Indeed, Halacha always obligates one to seek and follow the advice of scientists and experts. However, when deontology is practiced by people who do not have proper access to accurate data, or who (for perhaps sociologically understandable reasons) are suspicious of its sources or the channels by which it is conveyed to them, it leads to wrong conclusions. Its ethical rules reflect a mistaken conception of reality. Although it is too early to judge, I think that it is fair to say that, by and large, the many rabbis and communities who closed synagogues and yeshivot early had more positive associations and interactions with modernity than those who delayed. Their deontological conceptions were better attuned to reality because they understood better what was going on.

In general, traditional plague rulings are useful to get people to take social distancing seriously, but they do not relate to the complexity of living a normal life of social distancing. That is why the rulings for the would-be hunter and sportsman have an interesting contribution to make. Even though they are about risk-taking on the individual level and do not relate to the complexities of epidemics, they exhibit useful rules of reasoning during a pandemic, given current scientific knowledge.

Besides providing a rule-based conception, deontological reasoning in questions of risk-taking for one’s livelihood provides helpful pointers now. It also sharpens the issues that require further analysis by highlighting what they do not relate to. Religious law has a particular contribution to make. Greek, and particularly Aristotelian, ethics was about virtues, whereas most contemporary ethics is heavily consequentialist. Religious ethics, in the Judeo-Christian world, is typically deontological. Today Kant is its representative, but mostly academically. Culturally, religious groups are the main progenitors of estimating the moral value of an action by its adherence to rules of conduct. Religious deontology has the advantage of believing in an omniscient judge. But secular society might take something from the reasoning and distinctions that religious deontology has developed, even if the ethical motivational drive is located elsewhere.

As we struggle to contain Covid-19, old religious law distinctions in risk-taking, between livelihood and leisure, and the definitions of each, are becoming commonplace. Moral dilemmas concerning who to put at risk are no longer theoretical or academic. And religious-sounding reasoning of how to categorize a stroll in the park or a visit to a café are no longer restricted to medievalists or the pious. Every individual ponders these abstract issues, and is forced to act upon rules that are rarely rational when viewed on the individual level. A resurgence of deontological reasoning is in the air. Irrelevant of one’s general ethical taste, this pandemic is teaching us the value of familiarizing ourselves with our wide ethical horizons and traditions in moral reasoning.

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Shlomo Dov Rosen

Shlomo Dov Rosen studied in several yeshivot and at The Hebrew University, from which he received a PhD in Philosophy for a dissertation on the metaphysical foundations of contemporary social justice theory. He is currently communal rabbi and director of 'Yakar Jerusalem', and an associate fellow at The Truman Institute, at The Hebrew University.

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