Second Annual Holocaust Remembrance Lecture at Washington University: Jewish law from out of the depths: tragic choices in the Holocaust.

• Published date: 01 January 2011
• Author: Levine, Samuel J.
• Date: 01 January 2011

I. INTRODUCTION

Thank you and good evening. It is an honor to deliver the second annual Holocaust Remembrance Lecture at Washington University. The topic I would like to explore this evening is the phenomenon of fidelity to Jewish law and morality amidst the horrors of the Holocaust. History records some of the remarkable efforts of Jewish communities and individuals who, in the face of unimaginable conditions, in ghettos and concentration camps, continued to turn to the teachings of Jewish law and ethics for lessons and guidance. The questions and answers that were presented--a portion of which have survived in written form--span all areas of life: from ritual and holiday observance, to commercial law, to domestic relations, to--literally--daily questions of life and death.

The title and substance of this lecture draw on the published responsa of Rabbi Ephraim Oshry: Sh'eilos UTeshuvos MiMa'makim ("Questions and Responses from Out of the Depths"). (1) Rabbi Oshry lived through the Nazi invasion and occupation of Lithuania, which included: the unspeakable violence and brutality perpetrated by the Nazis on the Jewish community during the invasion of Kovno in June 1941; the continuing murder, over the next month, of thousands of Jewish residents of Kovno--men, women, and children--who were seized and taken to the nearby "Seventh Fort"; the brutal transfer of the remaining Jewish community, completed in August 1941, to ghettos in Slobodka, a suburb of Kovno; the years of persecution, deprivation, and despair in the Kovno ghetto, including deportations of thousands of Jews to concentration camps; and finally, the liquidation of the ghetto by the Nazis in July 1944, as the Russian army was approaching, during which the Nazis sent thousands to concentration camps in Germany, and murdered and cremated many others within the ghetto. (2)

Rabbi Oshry witnessed and survived all of these events, including the liquidation of the ghetto, which he escaped by hiding in a bunker. Following the liberation of Lithuania by the Russian army in August 1944, Rabbi Oshry helped lead the efforts, in the aftermath of the death and destruction, to tend to the spiritual and physical needs of the survivors. Through all of these years, Rabbi Oshry served as a religious authority and spiritual guide for those who would approach him with the most pressing questions on the application of Jewish law. Following the Holocaust, Rabbi Oshry published five scholarly volumes collecting his responsa, addressing nearly every aspect of Jewish communal, personal, and religious life. (3)

I would like to focus on two of Rabbi Oshry's responsa, which may be representative of the issues he faced over the years. The two responsa differ considerably in subject matter: one explores the scope and possible limits of the responsibility to take action to save a life; the other discusses the ritual of drinking four cups of wine at the Passover Seder. Yet both responsa provide documentary insight into the attitudes of those who, when confronted with the most difficult challenges, held firmly to their religious and ethical principles.

II. ENDANGERING ONE'S LIFE TO RESCUE ANOTHER

The first responsum relates more directly to the title of my lecture: "tragic choices." Throughout the years of the Holocaust, Jewish communities and individuals were constantly confronted with the most urgent matters of life and death. The Nazis' systematic methods of demonization, deportation, and extermination gave rise to countless choices and decisions, trying both the endurance and the sense of morality of those who struggled simply to survive.

Notably, in addition to the challenges of self-survival, important questions arose for those who were engaged in efforts to save the lives of others. In fact, these questions sometimes asked not whether there is a religious obligation to try to rescue those in peril, but rather, the extent to which individuals are permitted to put themselves in danger when engaged in efforts to save others.

Of course, this question begins from the premise that, as a threshold matter, Jewish law mandates the affirmative obligation to take action to preserve life. In the American legal system, absent exceptional circumstances, the criminal law generally does not impose a duty to undertake any efforts to save someone whose life is in peril. As a somewhat extreme hypothetical that I sometimes pose to my first-year criminal law students, a bystander who watches a person drowning, and does not lift a finger to help, faces no criminal penalty. While some courts have expressed their moral outrage at this failure to act, (4) few jurisdictions impose even a civil duty to exert even a minimal effort in response to a danger to life.

Jewish law operates under a different premise. The Torah states in Leviticus: "Do not stand idly by the blood of your neighbor," (5) which is understood as imposing an obligation to act, and not to remain passive, when the life of another is in danger. (6) In fact, Jewish law places such a high premium on the value of life that, with very few exceptions, the other laws of the Torah...