Question: The following question appeared in "the Ethicist " column of the New York Times Magazine. "Some knowledge about hypothermia comes from brutal Nazi medical experiments conducted on prisoners of war. Considering the data came from the destruction of their lives, are there ethical issues when modern-day scientists use it? Could it be considered a form of collaboration with the Nazis? Or does the origin of the data matter if the data is useful? Declaring the data off-limits could lead to preventable deaths, while using the data seems coldheartedly clinical." What is the Jewish response to this seeming dilemma?
And Moshe said to Aaron, “This is what the LORD meant when He said, ‘Through those who are close to me will I be sanctified, and before the entire nation will I be honored,’ and Aaron was silent.
In this verse from Leviticus (10:3), Moshe speaks to Aaron just after the tragic death of Aaron’s two sons. It is difficult, if not impossible, to understand the meaning of Moshe’s words. But Aaron’s response is far more profound: “And Aaron was silent.” To whatever extent Moshe was attempting to make sense of the tragedy, in truth, there was nothing to be said, no sufficient meaning to be found, and so, Aaron was silent.
In the shadow of the Holocaust, we are all, as Aaron was, stunned into profound silence. Any attempt to justify even one iota of the Holocaust is not only impossible but offensive. Therefore, let us not, for even a moment, entertain the notion that any scientific benefit that could come from Nazi data brings meaning to the suffering of the victims.
At the same time, were we to turn our backs on scientific data that might benefit others without sufficient justification, that would be a wrong of its own. And while one might argue that respect for the victims is sufficient justification to declare all benefit from Nazi material to be off limits, I do not think the victims would be honored by our declining to help others in need. Therefore, to the extent that the Nazis’ data on hypothermia is scientifically useful (the point is debated in the medical community), we have a serious ethical question to answer.
This particular question has been ably addressed by Rabbi J. David Bleich in Contemporary Halakhic Problems Volume 4 (pp. 218-236). The most relevant rabbinic text on this question is Babylonian Talmud Pesahim 25a-b. There we are told of the statement of Rabbi Yohanan that anything may be done for purposes of healing, aside from idolatry, adultery, and bloodshed. The Talmud understands this statement to refer to healing a condition that involves mortal danger. That dangerous illness may be healed through anything but idolatry, adultery, and bloodshed is noted in Mishneh Torah Yesodei HaTorah 5:6 and Shulhan Arukh Yoreh Deah 155. Additionally, even where there is doubt involved in a matter, we err on the side of saving a life (pikuah nefesh). For example, even if it is unclear whether an illness is life-threatening, the Sabbath may be violated to treat the person (Mishneh Torah Shabbat 2:1, Shulhan Arukh Yoreh Deah 128:10). While one might argue that Nazi experimentation is a case of “bloodshed,” which may not be used even for lifesaving purposes, I agree with Rabbi Bleich’s analysis (p. 222ff) that while one may not perform an act of bloodshed in order to save a life, the ex post facto use of the results of such acts is not prohibited. Similarly, Rabbi Bleich (pp. 227-231) discusses and rejects certain other arguments that are elicited to prohibit use of Nazi data (for instance, the prohibition of deriving benefit from a cadaver) arguing that while scientific pursuits (e.g. certain autopsies or medical study) may be forbidden, there is no source to prohibit the use of knowledge derived from such pursuits.
Rabbi Bleich (pp. 231-233) elicits other Talmudic sources that seem to approve of the use of scientific information derived from illicit means, including, for instance, the students of Rabbi Yishmael who studied the body of a woman executed by the king in order to determine the number of organs in the body (BT Bekhorot 45a); the report of observations of dead bodies made by Abah Shaul during his career in burial (BT Niddah 24b); and the story of Cleopatra’s experimentation on handmaidens who were sentenced to death, which is discussed as a possible source for whether or not a fetus’s gender is determined by the fortieth day of conception (BT Niddah 30b). In the Cleopatra case, Rabbi Bleich notes that the rabbis debated the scientific validity of the experimentation, but not the permissibility of using the resulting data. Although these cases may be enlightening on the permissibility of garnering scientific information from cadavers, it is not clear to me that any of these situations were understood to be the result of immoral acts. Rabbi Bleich seems to read the Cleopatra story as indicating that Cleopatra condemned these women to death for the purposes of experimentation. It seems to me, however, that the story indicates that women already condemned to death were particularly executed on the fortieth day after conception for these scientific purposes. While I would consider such experimentation to be immoral, and I imagine the rabbis would feel the same, this particular point is not raised by the Talmud and I want to be careful not to project my own sense of morality onto this text.
Rabbi Bleich, admitting that his proofs might be rejected, concludes by falling back on the rule mentioned earlier, namely, that we should err on the side of saving lives. He writes that use of "information obtained by immoral means . . . must nevertheless be regarded as legitimate for purposes of pikuah nefash unless there is clear and convincing evidence to the contrary. Any and all measures must be utilized for purposes of preserving life unless there exists clear evidence predicated upon talmudic sources indicating that some measure must be abjured."
While I agree with Rabbi Bleich’s conclusion, one other note of caution must be sounded (also discussed by Rabbi Bleich p. 234 ff), which is whether using data derived form unethical experimentation might encourage future scientists to act in unethical manners in the future. Perhaps scientists who might otherwise feel that “the ends justify the means,” might decide otherwise if they knew that the results of unethical scientific procedures would not be utilized. Indeed, sometimes otherwise acceptable behavior is to be eschewed when it might set a dangerous precedent (an example might be ma’arit ayin, where an otherwise acceptable act is forbidden because its appearance might mislead others). Although one can hardly imagine that a person capable of participating in the type of experimentation performed by the Nazis will be deterred based on how a moral scientific community might shun the results, no doubt there are lesser acts of immorality that might be deterred by an absolute ban on the use of on information garnered by immoral activities. Nonetheless, I do not believe that this concern is sufficient to tip the balance away from erring on the side of potentially lifesaving activity.
In conclusion, using scientific data garnered by Nazi experimentation is consistent with our general bias toward lifesaving activity. Because I do not see the use of this information as being a violation of the dignity of the victims or as being too great an incentive toward future immoral acts, I would encourage the use of this data to the extent it could be used to save lives.
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Question: What is structured (fixed) prayer all about in Judaism? Can’t we just speak directly to Hashem (G-d) in our own words and language?
What is structured (fixed) prayer all about in Judaism? Can’t we just speak directly to Hashem (G-d) in our own words and language?
One cannot seek a fully engaged relationship with God without managing the balance between structure and spontaneity, between consistency (kevah) and feverous intent (kavanah).
Prayer is intended to be avodah she’b’lev – worship of the heart (1). If we force ourselves to recite words printed in a siddur (prayer book) when the words are meaningless to us, or worse yet, have an oppressive effect on our spirit, such prayer would be worse than empty. Any ritual act done in that manner can only distance us from our creator. First and foremost, let us always seek to engage God in ways that are emotionally and spiritually meaningful to us, and let us remember that this is all that God would ask of us.
At the same time, structure has its benefits. Structure helps establish the parameters for our faith and practice. Faith without structure can lack cohesion, and is more likely to dissipate. Although the Rabbis are often criticized for their hyper-legalism, the structures created within halakhah (Jewish law) have an important role in the survival of our faith.
The Rabbis ordained the Amidah to help insure that each person would consider many important ideas in each prayer. We are wise to adopt their structure as a pathway towards our own eloquence and inspiration. Of course, self-expression is a vital part of prayer. As the Book of Psalms says on numerous occasions “Sing to the LORD a new song.” (2) Rabbi Eliezer teaches in the Mishnah, “one who makes his prayer a fixed task, his prayers is no supplication.” (3) Although the sages ordained the Amidah as a prayer to be recited consistently, halakhah encourages, within certain parameters, that a person include his or her own words in each recitation of the Amidah (4). Therefore, when reciting the Amidah, a person is wise to supply their own thoughts and ideas, while maintaining the theme of the particular section of the Amidah being recited. This is one of many reasons why it is important to understand the meaning and structure of each blessing of the Amidah. The Amidah creates a baseline for prayer, and invites our further innovation.
The words in our siddur should never be a burden. It is always worth considering the different meaning and significance we can ascribe to these prayers. One thing that has always inspired me is the majesty that stems from sharing the same words and structures of prayer with many generations of our Jewish past, and with the many and diverse Jewish communities of today. Without some structure, this common bond would be lost. How much more powerful is our religious experience if, rather than jettisoning those words, we are to find our own contemporary significance within those words.
Our tradition teaches that it is God that inspires our prayers (5). May God inspire all our prayers, and may our prayers be an inspiration to us.
(1) Babylonian Talmud Ta’anit 2a
(2) E.g. Psalm 96:1
(3) Mishnah Berakhot 4:4, Babylonian Talmud 28b, trans. Herbert Danby
(4) C.f. Maimonides Mishneh Torah Laws of Prayer 6:3
(5) See e.g. Psalms 51:17
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Question: Is copying music muttar (permitted)? i've heard someone quote Rav Eliyashev and other rabbonim saying yes, and that you can ignore disclaimers on cds (not to copy). The second part of the question is: I like a band which permits crowd [attendees] recording their concerts [at the concert] and giving the recording out for FREE to others (very rare). But the band has a site which sells recordings of those exact same shows, recorded in better quality. Based on Halacha can I ignore their rules (on the site) prohibiting downloading their online recordings of these shows because they permit me to have a copy of that same show downloaded from a friend who gives it to me, just in a slightly worse quality recording?
Although the Torah does not have a concept of intellectual property, it is clear to me that a Jewish person is required to respect the laws of intellectual property.
In “Halachah and Copyright Laws,” which originally appeared in “Gray Matter: Discourses in Contemporary Halachah,” (Teaneck, NJ, 2000) and is available online at http://www.torahlive.co.il/templatebild/tipsresources/Halacha%20and%20Copyright%20(Jachter).pdf, Rabbi Howard Jachter discusses five halakhic approaches that find halakhic ground for respecting laws of intellectual property. Each one of these grounds is quite convincing. The arguments include general arguments, such as a Jew’s responsibility to do what is proper in God’s eyes (c.f. Deut. 6:18), which would include respecting internationally accepted rules of conduct, and the Jew’s obligation to respect the law of the land (dina d’malkhuta dina). Other arguments revolve around reasonable extensions of Talmudic precedents, such as the Talmudic recognition that a person may sell a sheep while retaining the rights to the wool produced by the sheep (by extension, it is argued, one may sell one copy of a recording, but retain the right to any copies of that recording).
To Rabbi Jachter’s able review, I would add the observation that the Rabbis recognized a prohibition of “g’nevat da’at,” which literally means “stealing of knowledge,” but refers to deception. It is striking that the Rabbis equated deception with stealing. It seems to me that the language of “stealing of knowledge” demonstrates that the Rabbis believed that people have a right to expect honesty, and that a person acting deceitfully is “stealing,” since s/he is violating the other person’s rightful expectation of honesty. This seems to demonstrate that within halakha one has “property” that goes beyond physical items. Therefore, I believe halakhic thinking is quite amenable to the concept of “intellectual property.”
As Rabbi Jachter notes, a Jew should obey the laws of civil society. Additionally, intellectual property laws are an essential part of the way business works today. It is worth noting that financial gain is an important motivation for inventors and artists, and through intellectual property laws, society seeks to strike a delicate balance between helping to facilitate these innovations and creations, and allowing society to enjoy those creations.
Under current law, writers, artists, and inventors do their work with the expectation, based on laws recognized throughout the world, that they will have certain rights in the intellectual fruits of their labor, and that they may choose how to allow others to acquire rights to enjoy those fruits. Therefore, to use the example in the question, an artist is within his or her rights to permit recording at a live concert, but to charge money for downloading a song or album. To violate the artist's rules is to use their property without their permission, and, to my mind, is a very real form of stealing.
Most of this analysis is predicated, of course, on respecting civil law, both because we are required to respect civil law and because that law creates certain expectations on the part of the artist/inventor. Therefore, if an artist restricts his or her intellectual property in a way that is contrary to the law, halakhah would not require us to respect that restriction. Similarly, halakhah would recognize the “fair use” doctrine, which allows certain uses of the intellectual property of another. In this regard, I would echo the final words of Rabbi Jachter on this issue, that, “consulting with attorneys who are well-versed in copyright laws can be useful when rendering halachic decisions about these matters.”
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