Ransoming Captive Jews
An important commandment calls for the redemption of Jewish prisoners, but
how far should this mitzvah be taken?
By Rabbi David Golinkin
To most American Jews, the issue of ransoming captives
(pidyon shvuyim) may seem remote, but to Israelis, it is very much a real
question. Numerous times in Israel's history, the government has been faced
with the question of whether to trade large numbers of Palestinian or other
prisoners for a handful of Israeli captives. In the following, Rabbi Golinkin
surveys halakhic (Jewish legal) literature regarding the issue of redeeming
captives. Excerpted with permission from the website of the Schechter Institute of Jewish Studies,
which has the complete text of Rabbi Golinkin's responsum (rabbinic decision)
with footnotes.
Rabbinic Literature & Medieval Jewish History
Anyone who surveys this topic historically is struck by the
fact that many thousands of Jews were captured and held for ransom throughout
Jewish history and that Jewish communities went to extraordinary lengths to
redeem captives.
Indeed, the Talmud (Bava Batra 8b) calls pidyon shvuyim a
"mitzvah rabbah" (great mitzvah) and says that captivity is worse
than starvation and death. Maimonides rules that he who ignores ransoming a
captive is guilty of transgressing commandments such as "you shall not
harden your heart" (Deuteronomy 15:7); "you shall not stand idly by
the blood of your brother" (Leviticus 19:16); and "you shall love
your neighbor as yourself" (Leviticus 19:18).
And one who delays in ransoming a captive is considered like
a murderer (Yoreh Deah 252:3). Indeed, Maimonides himself wrote letters
exhorting his fellow Jews to redeem captives and collected money for pidyon
shvuyim.
The Exception to the Rule
It would seem from the above that pidyon shvuyim is an
absolute mitzvah, which must be followed at all times. But there is one major
exception, as explained in the Mishnah (Gittin 4:6 = Bavli Gittin 45a):
"One does not ransom captives for more than their value
because of Tikkun Olam (literally:
"fixing the world"; for the good order of the world; as a precaution
for the general good) and one does not help captives escape because of Tikkun
Olam."
This Mishnah was codified by the standard codes of Jewish
law. The Babylonian Talmud (ibid.) gives two different explanations for this
takkanah (rabbinic enactment):
A) "because
of the [financial] burden on the community";
B) "so that
they [=the robbers] should not seize more captives"--i.e., paying a high
ransom for captives will encourage kidnappers to kidnap more Jews and demand
still higher ransoms.
The Talmud does not decide which explanation is correct, so
halakhic authorities throughout the ages stressed one or the other, leading to
different conclusions. Rashi, for example, says that if you accept the first
explanation, a relative could pay an excessive ransom, because that does not
place a financial burden on the community; whereas according to the second
explanation, a relative may not pay the high ransom because that will still
encourage the kidnappers to kidnap more Jews.
Was the Mishnah in Gittin Followed in Practice?
The standard explanation for "more than their
value" is the amount that captive would fetch if he/she were sold as a
slave. Even so, despite, the clear
language of the takkanah in the Mishnah, we know from the Talmud, the
commentaries, the Cairo Genizah, and the responsa literature that they were
many exceptions to the rule:
1) The very next sentence in Gittin (45a) says that
"Levi bar Darga redeemed his daughter for 13,000 gold dinars."
Thirteen and 13,000 are typical round numbers in the Talmud, but Levi must
still have paid far more than she was worth. Indeed, Abaye immediately adds
that Levi may have acted against the will of the Sages.
2) A beraita (a teaching of the Tannaim, the mishnaic Sages)
in Ketubot 52a-b says that if a wife is taken captive, the husband may pay up
to 10 times what she is worth the first time; after that, he may redeem her or
not redeem her. Rabban Shimon ben Gamliel, echoing the Mishnah in Gittin, rules
that the husband may not pay more than she is worth because of Tikkun Olam. But
the Tanna Kamma, the "First Tanna," obviously disagreed with the
Mishnah in Gittin and ruled that a husband may pay 10 times what his wife is
worth.
3) Another beraita in Gittin (58a) relates that R. Yehoshua
ben Hannania was in Rome and they showed him a handsome Jewish boy in prison.
When he tested the boy and saw that he knew the Bible by heart, he said:
"I am certain he will become a legal authority! I will not leave here
until I redeem him for whatever price they name. They said: he did not leave
until he redeemed him for much money."
The little boy grew up to become Rabbi Yishmael ben Elisha. Tosafot [a
group of medieval Talmud commentators] derive from this story that when there
is sakkanat nefashot (mortal danger), one may pay more than the captive is
worth.
4) Another opinion in Tosafot (ibid. and to 45a) says that
we derive from this story about the young scholar that one may redeem a Sage
for more than he is worth.
5) A third opinion in Tosafot (45a) says that we derive from
this story that after the destruction of the Temple, Jews are targets in any
case and paying a high ransom will not cause more or less kidnapping.
6) Furthermore, we know from the Cairo Genizah that the
normal ransom for a captive was 33 dinars, but Jews
7) R. David ibn Zimra--the Radbaz (Egypt and Israel,
1479-1573)--says in his responsa that "all Jews are already accustomed to
redeem their captives more than their value in the marketplace, for an old man
or minor are only worth 20 dinars and yet they are redeemed for 100 dinars or
more. This is because the reason for the Mishnah is that they should not seize
more captives, but we see in our day that the kidnappers do not set out in the
first place to capture Jews, but rather whoever they can find." He further
says that even if Jews pay more ransom for Jews than non-Jews do, that is
because the captive is a Sage (see above) or because there is a danger that the
captive will be forced to convert (this latter argument is his own invention).
In other words, the Radbaz goes to great lengths to justify the custom in his
time of ignoring the Mishnah in Gittin.
8) Rabbi Shlomo Luria (Poland, 1510-1574) also testifies in
his Yam Shel Shlomo (to Gittin 4:6) that the Jews of Togarma (Turkey) in his
day redeem captives for far more that they are worth, "since they are
willing to overlook the financial burden on the community."
Thus, to summarize, the Mishnah in Gittin says one may not
redeem captives for more than their value, and this law was codified by all the
standard codes of Jewish law. But in practice, many talmudic Sages and medieval
rabbis found ways to circumvent that Mishnah by interpretation or by creating
exceptions to the rule.
Recent Responsa
Since 1971, many rabbis have written responsa or halakhic
articles about our current dilemma. Most have ruled that Israel may not
exchange hundreds or thousands of terrorists for a few Israeli soldiers. We
shall summarize the opinions of Rabbi Shlomo Goren, who was against such
exchanges, and of Rabbi Hayyim David Halevi, who justified Israel's actions in
1985 after the fact.
Rabbi Goren [former chief rabbi of the Israel Defense Forces
and later of the State of Israel] says that we must learn the law from the
Mishnah in Gittin that we do not pay more than their value. It is true that
Tosafot in Gittin 58a said that when there is danger to the captive we may
indeed pay more than the captive is worth. But Ramban (Spain, 1195-1270) and
Rashba (Spain, 1235-1310) disagree. Furthermore, all captivity in ancient times
was dangerous (see Bava Batra 8b quoted above), and the Mishnah nonetheless
ruled that one does not pay more than the captive's value because this will
encourage the kidnappers to kidnap more Jews and endanger the public.
He adds that the safety of one or a few Jews in captivity
does not take precedence over the safety of the entire public. In addition, he
agrees with the Radbaz, and not R. Yosef Karo, that a person does not have to
put himself in possible danger in order to save his fellow Jew from definite
danger.
Finally, in our case, freeing hundreds or thousands of
terrorists definitely endangers the public because they will all be free to
attack Israel and to take more hostages. Therefore, everything Israel did is
against the halakhah of the Mishnah and the legal authorities and against the
security of the Jewish people in Israel and the Diaspora, says Rabbi Goren.
Rabbi Hayyim David Halevi, who was Chief Rabbi of Tel Aviv,
admits that Rabbi Goren's ruling, based on Gittin and on the rulings of leading
authorities, is "clear and correct." Nonetheless, he disagrees with
Rabbi Goren. All of the sources quoted deal with robbers who kidnap people for
money, but we are dealing with a war based on Palestinian nationalism. They
will continue to kidnap Jews regardless of what we do, so the price we pay for
captives is not a factor and does not increase terror.
In our case, we need halakhic innovation just as R. Yehoshua
innovated that one may pay excessive ransom for a Sage and just as Tosafot
innovated that the Mishnah doesn't apply after the Destruction. The Radbaz too
innovated a lenient approach as we saw above. The Government of Israel decided
that if an Israeli soldier sees that the State will not redeem Israeli soldiers
for a high price, he or she will prefer retreat to capture. This too can be
considered a halakhic innovation. Therefore, Rabbi Halevi does not think that
the State of Israel acted against Jewish law in exchanging 1150 terrorists for
3 Israeli soldiers.
Summary and Conclusions
We have seen that pidyon shvuyim is a major value in our
tradition and that Jews have exerted great efforts to redeem captives. However,
we do not pay excessive ransom "mipney tikkun olam," for the public
good. In other words, the public takes precedence over the individual, even if
this endangers the individual. Exchanging hundreds or thousands of terrorists
for one Israeli encourages kidnapping of Israelis, and frees hundreds or
thousands of terrorists who will pick up their weapons and attack Israel. In
other words, it endangers the public and should not be done.
Rabbi David Golinkin is president of the Schechter Institute of Jewish Studies in
Jerusalem.
