Jesse Lempel
Weary as we are of the shutdown, few of us have known true captivity. It is a ghastly thing which Jewish law deems worse than famine and slaughter—and decrees that “no commandment is as great as pidyon shevuyim,” the Hebrew term for the redemption of captives (Mishneh Torah, Hilkhot Matnot Aniyim 8:10). American courts, including the one I work for, are handling a wave of lawsuits from prisoners seeking release on the grounds that it is unsafe to keep them locked up during the pandemic. Confronted with these difficult cases, I began to wonder: Does the concept of pidyon shevuyim apply in these and other situations presented by the pandemic?
One historical precedent is illuminating. An outbreak of the plague tore through Europe in the years 1709–1713. Some Jews were fortunate, like Rabbi Samuel of Danzig, who, as his famous grandson relates in his Hokhmat Adam, fled a year earlier after being warned in a dream by his dead grandmother. But most did not escape the misery. When the epidemic hit Prague around 1713, Rabbi Jacob Reischer (author of Shevut Ya’akov) was forced to evacuate and endured a wretched homeless spell scavenging for food and shelter (Iyun Ya’akov, Introduction). He was later asked the following halakhic question:
A man on his deathbed had donated a portion of his estate to charity, to be used only for pidyon shevuyim. Some do-gooders wanted to divert these funds toward relief for Jews impacted by the plague, and they asked R. Reischer whether that was permissible (Shevut Ya’akov II, 84). Such a diversion would typically be forbidden, since an earmarked gift generally cannot be redirected against the donor’s wishes. But R. Reischer creatively argued that, because of the plague, these relief funds would in fact be going toward pidyon shevuyim.
He first acknowledged that the Talmud (Bava Batra 8b) implies that pidyon shevuyim is a worthier cause than aid to those suffering famine or other natural disasters, clearly suggesting that the Talmud views pidyon shevuyim and natural suffering as different. “Nevertheless,” he wrote,
in my view, that applies only in earlier times when, if the hand of God struck the world, people did not withdraw from the Jews at all (lo hayu muvdalim mi-Yisrael kelal) and [everyone] would help one another in times of distress. But now, due to our sins, the exile weighs heavily upon us, and our enemies spread slander and libel as if the plague arrived because of the Jews in particular. During the plague in the year 5473 [1713] the Jewish streets were closed off in most areas where our people live; literally no one could come or go. Only grudgingly and after much lobbying were people allowed to bring them food. In some areas Jews had to hide in forests or caves, and those who were on the roads or in the fields were truly left to die—fortunate is he who did not see them in such grave distress and sorrow. There is no greater captivity than this, since it is worse than all other [types of suffering] and encompasses them all. Thus it is clear that this act [of charity] is in fact pidyon shevuyim, and perhaps greater. The donor’s intent has therefore not been violated for there is no greater time of need.
R. Reischer’s reasoning is somewhat opaque. What was it that made these desperate Jews eligible for pidyon shevuyim funds? The simplest explanation might be that any situation of extreme suffering and helplessness counts as “captivity.” Yet I don’t think that reading is correct. There are many dreadful and hopeless situations that one would be hard-pressed to describe as pidyon shevuyim. For example, the Talmud famously discusses a case of two people stuck in the wilderness with enough water for only one of them to make it back to civilization (Bava Metzia 62a). Sending them another jug of water would be a supreme act of charity, but I doubt anyone would categorize it as pidyon shevuyim. Likewise, rescuing people from various extreme predicaments, such as drowning in a river or being mauled by a wild animal (Sanhedrin 73a), is not pidyon shevuyim.
Why, then, did R. Reischer rule that giving money to Jews languishing under plague conditions was pidyon shevuyim? I would like to offer two plausible explanations. The first is that the status of “captives” derived from the strict quarantine. Many Jews were apparently confined to their homes, or the neighborhood, in abysmal conditions. Others were trapped outside the city and had to hide in forests or caves. R. Reischer may have interpreted these restrictions on movement as a form of confinement that amounted to “captivity.” It’s easy to see why someone sealed off in that manner might feel like a prisoner.
Yet it is likely that the association of quarantine with confinement had little to do with R. Reischer’s decision. From his use of the past tense, it appears that the quarantine had already been lifted when he authored the responsum. And, in fact, confinement itself may not be an essential facet of pidyon shevuyim. Some sources indicate that a combination of perils—“death,” “the sword,” and “hunger,” in the language of the Talmud (Bava Batra 8b, building on Jeremiah 15:2)—are sufficient proxies for confinement or its functional equivalent. According to some, the halakhic notion of “captivity” need not involve confinement when the victims are exposed to serious deprivation and violence by other means.
For example, Rabbi Simeon b. Tzemah (d. 1444) ruled based on his reading of the Talmud (Bava Kama 117b) that a crowd of impoverished refugees who had landed in Ténès, Algeria were “captives” because they were being beaten by people on the street (Tashbetz II, 293), even though they were apparently not held in custody. And consider the opinion of R. Tzvi Hirsh b. Azriel of Vilna, who addressed the same plague as R. Reischer, but had a somewhat different take (Beit Lehem Yehudah 252:1):
I saw with my own eyes in the year 5471 [1711] in Lithuania that, contrary [to R. Reischer’s account], the [non-Jews] acted with great kindness toward the Jews. Still, many died of hunger, so there was “death” and “hunger.” And because of the hunger people would stab one another and steal whatever food and drink they had—I saw that with my own eyes. Thus, there was “death,” “hunger,” and “the sword,” and that is certainly tantamount to captivity, which includes all of those.
Notably, R. Tzvi Hirsh places no halakhic weight on the existence of a quarantine but instead highlights the threats of violence and hunger. R. Reischer, in contrast, focuses on the quarantine, along with the barbaric and unjust behavior of the gentile authorities. Perhaps he thought that the quarantine itself was a bona fide confinement, and that was the straightforward basis for his ruling. But I believe that a careful reading of his reply indicates another approach.
In explaining why the Talmud’s hierarchical progression of agonies (captivity is worse than hunger, which is worse than the sword, etc.) no longer applied, R. Reischer emphasizes that “in earlier times” people “did not withdraw from the Jews” since everyone “would help one another in times of distress”—whereas in his day the Jews were blamed for the plague and left to suffer on their own. One gets the impression that the marker of “captivity” was less the quarantine itself than its weaponization against the Jews. The antisemitism mattered for both practical and symbolic reasons. Practically, it aggravated the suffering of the Jewish victims through a brutal lockdown. On the symbolic plane, the enmity colored the Jewish rescue effort as an act of quasi-resistance. In other words, pidyon shevuyim is the Jewish imperative to rescue helpless and persecuted members of the community.
This leaves us with two alternate readings of R. Reischer’s ruling that Jews in the plague of 1713 were “captives”: it was either (1) due to the restrictions on movement caused by the quarantine, or (2) because the gentile antagonism demanded a communal response.
These two approaches may have important ramifications in the context of today’s coronavirus pandemic. If a quarantine is, legally speaking, a form of captivity, then the obligation of pidyon shevuyim may apply to those under lockdown in circumstances that threaten their basic ability to make a living. It is not hard to imagine, for example, that poor and vulnerable elderly people trapped in their apartments or in a nursing home may halakhically be considered “captives,” like the Jews of Prague in 1713. Perhaps the same might be said for those on the verge of destitution by the loss of their jobs or businesses, as the Talmud (Bava Kama 117b) is clear that preventing “captivity” in the first place is as good or better than rescuing a captive. If pidyon shevuyim is primarily a defense of Jewish lives and identity from a human antagonist, however, its scope would be more limited.
These competing perspectives may lurk behind the open question whether pidyon shevuyim extends to freeing non-Jewish captives (see Beit Yosef, Yoreh De’ah 254). The logic of applying it to non-Jews is simple and cogent: pidyon shevuyim is basically a form of charity (tzedakah), and Jews are commanded to give charity to gentiles as well (see Ritva, Bava Batra 8b). Yet some of those who disagree, like Rashi (Bava Batra 11a), assume without explanation that pidyon shevuyim cannot apply to non-Jewish captives, as if the point were self-evident. Rashi’s view makes perfect sense if pidyon shevuyim is fundamentally a remedy for communal persecution—and, indeed, that is pidyon shevuyim’s most familiar historical role.[1]
Yet it may be that Rashi’s narrow conception of pidyon shevuyim, which categorically excludes non-Jews, no longer strictly holds in our times, at least in America—just as R. Reischer ruled that new social conditions had altered the definition of “captives.” In the United States, by and large, non-Jews have not “withdrawn from the Jews” and neither have the Jews withdrawn from their neighbors. People do “help one another in times of distress.” This reality means, thankfully, that Jews today are better off than they were in Prague during the plague of 1713. It also means that, for all our uniqueness, Jews participate in a single community with the rest of society and must do our part to rescue those who are persecuted, whether Jewish or non-Jewish. The commandment of pidyon shevuyim bends to the shape of today’s society.
In an important responsum, Rabbi Joseph B. Soloveitchik relied upon the “halakhic-historic tradition which has always wanted to see the Jew committed to all social and national institutions of the land of his birth or choice which affords to him all the privileges and prerogatives of citizenship” (Community, Covenant and Commitment, p. 57). Perhaps this social integration, lamentably absent in Prague in 1713, implicates the American Jewish community in the mitzvah of rescuing society’s lowly and persecuted people of all faiths as a facet of pidyon shevuyim.
Prisoners are beneath society’s concern. In describing the plague of the firstborn, the Torah tersely sums up the social range of Egyptian life: “from the first-born of Pharaoh that sat on his throne unto the first-born of the captive that was in the dungeon; and all the first-born of cattle” (Exodus 12:29). Only the animals are lowlier. Of course, some people are incarcerated for good reason. While the American criminal justice system is rife with unfairness, irrationality, and savagery, many people locked up have committed serious crimes and ought to serve time. Halakhic authorities debate whether pidyon shevuyim applies to a criminal who is rightly imprisoned (see, e.g., Responsa of R. Meir Lublin no. 15; Yam Shel Shlomo, Gittin 4, 72). Yet that debate extends only to lawfully imposed consequences of the crime. When the conditions of confinement are more dangerous or cruel than is reasonably justified by law, all agree that the prisoner must be rescued. That, arguably, is the case during this coronavirus pandemic in many prisons, where social distancing is effectively impossible and some locked inside have medical conditions placing them at grave risk.
Maimonides emphasized that all prisoners, whether Jewish or gentile, retain their human dignity and must be treated accordingly (Hilkhot Sanhedrin 24:10). And in several places he instructs that Jews are commanded to imitate God by showing compassion and giving charity to all people (Hilkhot Melakhim 10:12; Hilkhot Avadim 9:8; Hilkhot De’ot 1:6). Those tenets stand firm whether or not pidyon shevuyim applies to the circumstances of this pandemic.[2] In light of the precedent from the plague of 1713, however, I suggest that unique opportunities to perform the “great mitzvah” of redeeming captives now await us.
[1] The element of persecution should be understood in a nuanced and contextual fashion. For instance, a Jew sold as a slave to a gentile must be redeemed, even when the Jew sold himself. This would seem to be far removed from the typical cases of pidyon shevuyim, such as arbitrary imprisonment by a hostile government or capture by pirates for ransom. Yet redeeming this enslaved individual is also a defense of Jewish identity—“so that he will not become assimilated among the gentiles” (Maimonides, Hilkhot Avadim 2:7). With Jewish identity at stake, the case may be analogous to communal persecution. Alternatively, the oppressive socio-economic forces which drove the Jew to sell himself into slavery—“he acted for his life,” the Talmud Yerushalmi explains (Gittin 4:9, 25b)—may rise to the level of persecution.
[2] It is worth noting that Israeli jurisprudence on the rights of prisoners has been heavily influenced by Jewish law. In a 2017 Supreme Court decision, for example, Justice Elyakim Rubinstein relied significantly on halakhic principles in ordering the Israeli government to reduce crowding in the nation’s prisons—and he also included a thoughtful rumination on the proper role for Jewish law within the Israeli legal system (Association for Civil Rights in Israel v. Minister of Public Security, HCJ 1892/14; English translation here).
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