How does the Jewish concept of justice fit in with the Mitzvah of Pidyon Shvuyim (redemption of prisoners/captives)? The Israeli government has in past freed many prisoners who killed Jewish soldiers and civilians in exchange for one or a few soldiers who were captured. Is letting these murderers and terrorists go an aberration of justice, or do the ends justify the means?
Your question goes to the heart of the difficulty in making ethical decisions, which is when you are weighing two positive values against each other. The question does really suppose two questions: What are the limitations of Pidyon Shvuyim, namely is there a price that is too high to pay to redeem captives? Second, what is the conception of justice particular in reference to criminal justice?
With respect to the first question, the mishna in tractate Gittin (4:6) that we do not redeem captives for more than their value because of Tikkun Olam. The Gemara there posits two reasons for this. One that it would pose an extreme difficulty on the community that would need to pay the ransom and the second reason is that it would provide an incentive for kidnappers to take more Jewish captives in the future. Later commentaries and halachic sources understand the value here to be the value on the slave market.
The concern that if the Jewish community pays too much for captives other Jews would be taken captive has been a real one. There is in fact the famous case of Rabbi Meir of Rothenberg, known popularly as the Maharam of Rothenberg, who was imprisoned in 1286 by King Rudolph I and demanded a large ransom. The Maharam’s student, Rabbeinu Asher ben Yechiel, known as the Rosh attempted to raise the ransom, but the Maharam refused it, lest it provide incentives for other Rabbis to be imprisoned. The Maharam died in prison seven years later in 1293.
The notion of not paying too much for captives does come with exceptions in later halachic sources. For example, the Shulchan Aruch (Yoreh Deah 252:4) rules that one paying his own ransom may pay more than his worth. Earlier authorities debate whether one may also pay more to redeem his wife. The Shulchan Aruch also rules that the community may pay more for a Torah sage.
More relevant to the case of Sgt. Gilad Shalit, many later authorities understand the limit on not paying more than the value of captives only applies when the motive for their capture was financial gain on collecting ransom. However, if there is a real risk that the captive will be killed, then one may pay an unlimited amount (Aruch Hashulchan YD 252:11).
It would therefore seem from the perspective of these sources on Pidyon Shvuyim, as Sgt. Shalit’s life was likely endanger, a high price for his release is warranted. However, his case does bring the concern that the Gemara had that there would be an incentive to capture more Israeli soldiers. Furthermore, there is the concern of your question that many prisoners to be released have engaged in terror and murder and might likely do so again in the future.
This dilemma has been a source of debate among prominent Israeli Rabbis for decades as well. The former Ashkenazi Chief Rabbi Shlomo Goren believed that Israel should not release prisoners for soldiers on the grounds it would put the lives of other soldiers at risk. The prominent Sephardi Authority Hayim David Halevy, on the other hand, was a vocal proponent of such exchanges.
An additional factor in these decisions which I will not discuss in detail is the compact an army makes with its soldiers – namely the notion of “leave no man behind.” The army tells its soldiers, if you fight for us and your country, your country will do everything to make sure you come home, regardless whether that is dead or alive. Leaving a soldier in captivity might send a message to other soldiers that your country could abandon you if the price is too high.
With respect to the second question about the Jewish conception of justice, we need to first understand what is desired in imprisoning criminals. In the general world, imprisoning prisoners is done for several reasons – protecting society from people who are a danger to society, punishing the criminal, and serving as a deterrent to others from committing the same crime.
Not of all of these reasons are values equally in Judaism. Judaism is very concerned with protecting society from those who are dangerous. Our conception of justice also seeks for a criminal to make retribution for his/her crimes, but there the motive is so that the criminal can achieve some atonement from God and not from a pure desire to punish the criminal.
I think the distinction can be understood through two different Mishnayot. The first found in Makkot (1:10) states that a Sanhedrim that kills one person in a week is called destructive. Rabbi Elazar ben Azaryah says, once in seventy years (would be destructive). Rabbi Akiva and Rabbi Tarfon say that if they had been on the Sanhedrin, they would never kill anyone ever. Rabbi Shimon ben Gamliel says that they would be increasing murderers in Israel.
The second mishnah in Sanhedrin 9:5 states that one who has received lashes twice, the Beit Din would put him in a cell and feed him barley until his stomach explodes. One who murders without witnesses (or two kosher witnesses) is placed in a cell and fed with bread of adversity and water of affliction. The Gemara later says that this murderer is also fed the barley until his stomach explodes.
The mishna in Makkot (with the exception of Rabbi Shimon ben Gamliel) seems very concerned with punishing known criminals by putting them to death. The Mishna in Sanhedrin, however, seems to have no qualms with putting to death people even without the proper evidence necessary for Beit Din and hence the execution is done passively through the prison diet.
I think the two Mishnas can be explained by saying that the Rabbis were very reluctant to say that a person deserved to be “punished” or even lose his life according to the Torah and
G-d’s law. At the same time, the Rabbis felt the need to protect society from dangerous people even if it meant their execution.
With respect to the prisoners released in exchange for Sgt. Shalit, is our concern that they would still pose a danger to society or does it simply just bother us that they would be “getting away with murder.” The latter might be a valid concern, but one the Rabbis would be more reluctant to employ when weighed against the life of a Jewish captive. The former is more serious and one to the Rabbis would be very concerned with.
The Israeli government clearly needed to weigh the risks and dangers of the future actions of each released prisoner and there is much to debate there.
This discussion seems that this was never going to be an easy decision. Jewish tradition and law can indicate to us the pros and cons on each side of the debate, but is unlikely to settle the issue for us, and we are likely to debate such exchanges again in the future.
However, at this point, Sgt. Shalit is now home with his family and we should all rejoice in that fact and hope we don’t need to debate this in the future.
The question does not define whose justice and indeed what is justice for the victims of the “prisoners who killed Jewish soldiers and civilians” may not be justice for the captured soldier.
The mitzvah of Pidyon Shvuyim , redemption of captives, has traditionally been considered a great mitzvah. Maimonides writes in the Mishneh Torah that the mitzvah of Pidyon Shvuyim takes precedence even over supporting the poor or clothing them (Hilchot Matanot Aniyim 8:10). This sentiment is expressed in the Shulhan Aruch and is pervasive throughout Halachic literature.
The question that follows is what is the limit one should go to redeem a captive. On one side of the argument is the tradition that one can sell a sefer torah in order to raise money to redeem a captive. The other side is framed from the Talmudic teaching that states we do not redeem captives for more than they are worth, so as not to encourage our enemies from taking others captive. (Mishnah Gittin 4:6, Talmud Gittin 45a)
This last point is illustrated by the case of Rabbi Meir of Rothenberg, the leading Scholar of his age, who was taken captive in 1286 by the German King. The community was willing to ransom him, but Rabbi Meir refused to be ransomed even though Jewish law permitted it. He died seven years later, still in captivity.
In the case of the State of Israel there are many conflicting values that are in play. Justice to the victims of terror, who see the perpetrators freed and greeted as heroes in Arab lands, versus compassion for the prisoners held captives and their families. On top of these are the multiple and conflicting views and emotions held by Jews worldwide.
In the end, I do not feel that this is solely an issue of justice or letting “the ends justify the means”. Rather, I see this as an issue of justice versus mercy. It has been said that on Yom Kippur, when God judges the world, He moves from the Throne of Justice to the Throne of Mercy, and that God judges us mercifully rather than justly. I believe that Israel’s actions in such cases are drive by mercy for the captive and his family. The State of Israel believes that it can never leave someone behind. The price is often steep, sometimes insanely high, but the in the spirit of compassion, it is one that should be paid.
We are taught in Pirkei Avot 1:18 that, "The world stands on three things: On truth, on justice and on peace." In order to maintain the balance of the universe, all three of these are necessary. Ideally, these principles coexist in symbiosis with one another, but in reality, we know that is not always the case. So what do we do when, as in your question, two of these values are in conflict with each other--when the need to pursue justice is seemingly in conflict with the need to pursue peace?
There is, of course, no easy answer. And I believe that Israel's exchanging of prisoners in order to free the captive is, at its heart, about peace. And as we learn many times in our tradition, there are many things that we can do--that we must do--in order to bring about peace. I think that this falls into that category.
Is it a perversion of justice? Perhaps. But perhaps the ultimate justice for those who have done wrong is not for us to determine. And in order to create a Middle East that exists with both peace and righteousness in equal measure, risks need to be taken and difficult choices need to me made. If setting people free who have taken part in acts of terrorism, in order to save the life of one soldier, brings us one step closer to an Israel that can be full of peace, then I believe it's a risk worth taking.
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