Can we apply the halakhot of redeeming captives to modern prisoner exchanges?

 

A great mitzvah

“The Canaanites, the King of Arad who dwelled in the Negev, heard that Israel was coming by way of Atarim; and they fought with Israel and took captive, from them, to captivity.”^[1] The midrash teaches that there were no casualties of the Canaanite attack and the only captive taken was one Canaanite maidservant.^[2] Nevertheless, Israel responds by turning to God and waging war against their attackers.

The gemara refers to pidyon shvuyim, redeeming captives, as a mitzvah rabba, a great commandment. Captivity is a fate worse than a violent death or starvation. Rashi explains that captives are subject to the whims of their captors who can starve or kill their prisoners.^[3]  Rambam describes captives as “hungry, thirsty, naked, and in mortal danger.” We can add that the captive’s prolonged suffering is compounded by their uncertainty as to if and when they will be saved.^[4]

It seems that the captive’s mortal danger and extreme distress are the root of this “great mitzvah.” Consequently, halakhic authorities rule that the mitzvah of redeeming captives is prioritized over others such as tzedakah (charity to poor people).^[5] While there is no explicit Torah commandment to redeem captives Rambam explains that refraining from doing so violates several negative commandments such as prohibitions against hardening our hearts and refraining from giving charity, standing idly by the bloodshed of our fellow, allowing for another to be subject to harsh enslavement.^[6] Additionally, redeeming captives fulfills several positive mitzvot such as opening our hands to the needy, supporting our brother and sister so they may live with us, loving our fellow as ourselves and more. Shulchan Aruch adds that each moment a captive’s redemption is delayed is considered spilling blood.^[7]

These descriptions of the mitzvah indicate that pidyon shvuyim is of similar importance to pikuach nefesh (saving a life), which supersedes all but three Torah mitzvot. Indeed, one way to gauge the importance of a mitzvah is to study what takes precedence when it comes into conflict with other mitzvot. In this case, it’s difficult to overstate the importance of redeeming captives. One can divert all manner of tzedakah funds to redeem captives.^[8] Even a captive who sold themselves to non-Jews or was abducted because of their debt must be redeemed – even if it’s the second time this happened.^[9]

What supersedes redeeming captives?

Just as the mitzvah of redeeming captives is prioritized over some mitzvot and values, it is also superseded by others. The fourth chapter of Gittin discusses rabbinic ordinances enacted for tikkun olam, (societal good, lit. the repair or betterment of the world/society), and states that captives may not be redeemed for more than their worth.^[10] Traditionally their “worth” was determined by the price they would fetch on the slave market, but times have changed and some suggest it can also be understood as the average ransom a non-Jew would pay in similar circumstances.^[11]

The gemara tries to understand the “tikkun olam” involved in keeping the cost of redeeming captives low. Is the rabbinic enactment to protect the community from the financial burden? Or is it to prevent a reputation that Jewish captives are more valuable than others, which would incentivize capturing more Jews?

The gemara explains that there are nafka minot (practical differences) between these two explanations. If the community does not have to bear the financial burden may an individual choose to pay an exorbitant price to redeem their family member? The gemara does not resolve this question.

Other Talmudic sources further complicate the matter. One story relates that Rabbi Yehoshua ben Chanania paid an exorbitant sum to redeem a Jewish boy from Roman captivity. Some commentaries explain that this is permitted under certain extraordinary circumstances, such as if the captive is a Torah scholar whose value to the community outweighs the financial burden, or if the captors plan to kill the captive.^[12]

The latter is debated. Ramban rules that the sages considered that all captives are in mortal danger when they prohibited redeeming them for more than their value.^[13] Meiri disagrees; some abductions have largely financial motivations, while others carry a specific threat of death.^[14]

These early sources present us with several unanswered questions. Foremost – is the prohibition against redeeming captives for more than their value mostly concerned with the burden to the community or the possible future danger? If one is irrelevant, such as when an individual can pay the high price without the community or there’s no danger of future abductions, is redemption still prohibited?^[15] Can an individual pay a high price to redeem themselves? What if the captive will be killed if the ransom is not paid? Can the value of certain individuals supersede the hardship to the community?

Exceptions to the exceptions

Halakhic authorities debate these questions and possible exceptions to the rabbinic enactment that prohibits paying exorbitant ransoms. Shulchan Aruch rules that the sages did not prohibit an individual from redeeming themselves for more than their worth. What about one’s wife? The gemara questions whether a husband is obligated to redeem his wife for more than her value.^[16] Since a husband must support his wife, it seems he has an obligation to redeem her. Rabban Shimon ben Gamliel states that if the ransom is greater than the price of her ketuba he does not have to redeem her or may free himself from such an obligation by divorcing her.^[17] A beraita disagrees and rules that a husband should pay up to ten times his wife’s ketuba to redeem her, even if it is “more than her value.”

Shulchan Aruch rules according to the beraita because “ishto k’gufo” “his wife is like his body” and therefore there’s no prohibition against redeeming her for more than her worth.^[18] Tur and Rema state that a married woman is considered one with her husband (ishto k’gufo) and therefore a husband can and should use all his money to redeem his wife.^[19] Rosh goes a step further and rules that since one may use all their money to redeem themselves, a husband has a duty to allow his wife access to all “his” property so she can redeem herself – “it’s as if she has money.”^[20]

Bach and Be’er HeTev expand this exception to any relation. These exceptions indicate that the rabbinic prohibition against paying exorbitant ransom is irrelevant when there is no communal financial burden.^[21] Yet others, such as Rambam and Shulchan Aruch, limit such exceptions as they maintain that the sages were primarily concerned with the danger of future abductions.^[22]

Maharshal disagrees. He not only permits doing so, but praises the local Jewish community’s custom to disregard the financial burden and pay high ransoms.^[23] Maharshal also questions the tragic story of the Maharam (Rav Meir) of Rothenburg, who was taken captive and held for a large ransom. Although the ransom was raised the Maharam refused to allow it to be paid and ultimately he died in captivity. Maharshal asks why – since the gemara makes it clear that a Talmid Chacham may be redeemed for more than their worth; even if he was willing to forego this honor he should have considered the Torah that was lost due to his captivity. Maharshal explains that the Maharam must have been concerned about future abductions of Torah scholars, and notes that the same people also sought to abduct his student the Rosh. He believes that Maharam weighed the certain loss of his personal Torah scholarship against the possible catastrophe that would result from largescale abductions of Torah scholars and therefore ruled that he should not be redeemed.

The arguments for and against paying exorbitant ransoms acknowledge that all such decisions come with a cost. They consider the conflicting values – not only weighing the welfare of the individual vs. that of the community. The Maharshal’s insight into the Maharam’s decision brings several more issues to light. Firstly, halakha is not meant to be decided by books, when the reality changes the halakha may change as well, so Maharam ruled that the Talmudic permit to redeem a Torah scholar for a higher ransom was not relevant to his case.

The deliberations may need to weigh more than the needs of one individual and one community; courses of action may affect multiple individuals or greater collectives, and at times the severity of the immediate, certain crisis must be weighed against all sorts of abstract future problems.

For example, Maharshal also rules that captives are redeemed at any price if they are in immediate mortal danger, even if history has proven this will incentivize future abductions. While he accepts the Maharam’s choice to prioritize the uncertain threat to Torah scholarship, he does not think this applies to uncertain mortal danger; the captive’s immediate certain danger takes precedence over a hypothetical danger that may be preventable. In other words – pikuakh nefesh vaddai  shel yakhid, saving an individual life, takes precedence over safek pikuakh nefesh shel rabbim, doubtful saving of many lives, and tza’ar d’rabbim, communal suffering.

When people are worth more than money

Up until this point captives have been exchanged for money. What if the abductors don’t want money? What if they want people? Unfortunately, the last century has seen many such cases. The State of Israel has had to make such decisions since the War of Independence; at times halakhic authorities have weighed in. Let’s explore two unique approaches that go beyond the debates we’ve seen so far.

Rav Shaul Yisraeli states that the State of Israel’s obligation to redeem prisoners of war is comparable to the case of an individual who may choose to pay any price to redeem themselves or to a man who must provide his wife with all his resources to redeem herself. Since the soldiers are agents of the state sent to defend the people and land the state is obligated to do almost anything to redeem them, unless such a thing would be detrimental to general national security. The state’s responsibility to their soldiers can be compared to a husband’s obligation to his wife. ^[24]

He adds that even though the country does not have the same obligation to civilians, he relies on the Maharshal to teach that the immediate mortal danger faced by civilians abducted by terrorists who threaten to kill them takes precedence over the hypothetical greater danger that may result from acquiescing to the terrorist’s demands. He compares such cases to that of Avraham who went to war and put himself in mortal danger to save his nephew Lot from captivity. He explains that even though offensive action is a Kiddush HaShem (sanctification of God’s name), while giving into terrorists’ demands are acts of surrender – since both carry similar risks the decision should be left to military and security experts.

Rav Yisraeli also uses similar language to discuss the raid on Entebbe, calling it a Kiddush HaShem.^[25] He rules that if Jews are singled out, as they were in this case, it becomes a case of “ezrat Yisrael mi’yad tzar sheba aleihem,” “saving Israel from enemies who attack them,” which Rambam rules is cause for a milkhemet mitzvah, obligatory war. In this case as well tactical decisions should be left to the military and security personnel, who can choose to negotiate with the terrorists or go out to war – as Avraham did with Lot and Israel did with the Canaanites in our parsha.

Rav Yisrael Rosen goes further and says the halakha that the prohibition against redeeming captives for more than they are worth is only relevant when the captors demand money and can’t be applied to other cases, such as those faced by the State of Israel. In such political and security issues halakha trusts the state’s judgment and “not everything is drawn from explicit statements in the Shulchan Aruch.”^[26]

Final thoughts

There are times that political and social issues have clear answers within halakha; perhaps just as often it seems that traditional halakhic sources and opinions mirror the conflicts in the present discourse. In these cases there is not always a clear halakhic right and wrong; but while halakha may not give us the answer we are looking for, it does shine a light on many of the issues that must be considered.

Personally, I think that the issue of prisoner exchanges is an excellent (although unfortunate) example of such a case. Next week marks 17 years since Gilad Shalit’s abduction. Many people had very strong opinions on the prisoner exchange for his release, some claiming it was Israel’s responsibility to bring every soldier home while others warned of the danger in such an exchange which would release people who would then try (and unfortunately succeed) in murdering Israelis as well as encourage future abductions.

Anyone familiar with the historical and halakhic sources on the matter – which span from the Torah to the modern State of Israel – should be humbled by the complexity of the subject. As we discussed last week when we explored the halakhot of disputes, if our goal is pure, for the sake of Heaven, then we must acknowledge the truths contained in opposing views.

In the discussion of the Shalit deal, as with too much political discourse in our time, anyone with the hubris to claim they have the only answer should not be trusted to make such a decision. Conversely, those who truly understand the political, social, and halakhic considerations are often reluctant to weigh in. The following brief overview of the halakhic issues involved in prisoner exchanges is not sufficient to grant the expertise necessary for those who have the power to make such decisions, but it should be enough for us to appreciate, and hopefully learn from, the rich tradition of respectful centuries-long debate of practical and theoretical questions and considerations.

 

[1] Bamidbar 21:1

[2] ibid Midrash Agadda Buber, Yalkut Shimoni, Rashi.

This midrash may seem strange to some readers, so it seems fitting to explain the logic. It seems that the midrash points out there were no casualties both because that’s the plain meaning of the text, and also because the Bible generally connects unprovoked war and casualties to some sort of sin, which is missing here. (See Shemot 17:8 and Rashi there based on Tanhuma Yitro, Yehoshua Chapter 7, specifically verse 12. Alternatively, some commentaries such as Abarbanel and Orach Chaim explain there was a sin before their attack.)

As for the single maidservant, the Hebrew is “va-yeshb mimenu shevi,” “they took captive from them.” The midrash explains that the captive who was taken was already a captive. As there’s a mitzvah to kill all men of the seven nations of Canaan, a captive from a previous battle would have to be a woman. The single captive again stresses that the damage was minimal because Israel had not sinned.

[3] TB Bava Batra 8b

[4] Traditional sources don’t discuss the emotional suffering experienced by those close to the captive, possibly because no matter how horrible it is it pales in comparison to the captive’s distress.

[5] Mishneh Torah Hilkhkot Matanot Ani’yim 8:10

[6] Devarim 15:7; Vayikra 19:16; Vayikra 25:43; Devarim 15:8; Vayikra 25:36; Mishlei 24:11 and more.

[7] Shulchan Aruch Yoreh De’ah 252:3

[8] TB Bava Batra 3b, 8a; Shulchan Aruch Yoreh De’ah 252:1. Tzedakah funds collected for a specific cause generally can’t be diverted, although in some cases they may be diverted to a “greater” cause. One of the highest priorities is building a beit knesset, a synagogue, and all agree that even if the materials have already been bought (and thus carry some degree of sanctity) they may be sold off to raise funds for redeeming captives.

[9] TB Gittin 46b; Shulchan Aruch Yoreh De’ah 252:6

[10] Tb Gittin 45a. The mishna also states that captives may not be smuggled out of captivity, and the gemara indicates that captives should not try to escape. Rabban Shimon ben Gamliel teaches that the latter is for the captive’s good, as the gemara will later explain that the captors may punish remaining captives because some escaped. Alternatively, captives may be kept in harsher conditions to prevent escape.

[11] Responsa Ridbaz 1: 40; Pitkhei Teshuva YD 252:5. Ridbaz explains that there’s a clear tradition to pay more than someone is worth on the slave market, as an older adult or young child would not fetch much, and yet non-Jewish people would also pay a higher amount to save them. Since the problem is incentivizing the abduction of Jewish people as long as the value of Jews is not considered higher than that of other people it’s permitted to pay a higher price.

[12] TB Gittin 58a, Tosafot “kol mamon sheposkin alav,” Meiri Gittin 45a

[13] Chiddushei Ramban Gittin 45a

[14] Meiri Gittin 45a

[15] For the latter consideration see Responsa Knesset Yisrael 14:38

[16] TB Ketubot 52b. Most ketubot, marriage contracts, stipulate that a husband is given ownership of all his wife’s property; in exchange the husband has certain duties, he must support her throughout their marriage and there is a set sum he must give her in case of divorce or death (this money is often called her ketuba).

[17] See previous note

[18] Shulchan Aruch Even HaEzer 78:2-3, Rema there based on Tur and Rosh. Rambam rules that a husband is not obligated to pay more than her “value,” but is obligated even if that value is ten times that of her ketuba. (Hilkhot Ishut 14:23) Rav Shaul Yisraeli explains that Rambam purposely uses the phrase “not obligated” because he is permitted to pay more than her value.

[19] Shulchan Aruch Even HaEzer 78:2-3, Rema there based on Tur.

[20] Rosh Ketubot 4:22

[21] Be’er HeTev YD 252:3

[22] Hilkhot Matan Aniyim 8:12

[23] Yam Shel Shlomo Gittin 45a, siman 46

[24] Chavat Binyamin I Chapter 16

[25] Chapter 17

[26] Tehumim 95, “Shikhrur Shvuyim be’mekhir mufka she’enenu kaspi.” See note 8 for sources.