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Locking Up a Shoteh to Prevent Public Harm –

when this Will Endanger his Mother

This brings us to a difficult problem: what is the correct course of
action in our case, when locking up the offender will endanger his
mother [given the fragile state of her health and emotions] – do we
take this into consideration and refrain from incarcerating him?

We encounter a similar problem in the Torah: Yehudah proposed
to the Egyptian ruler [not knowing that it was his brother Yosef ],
“And now, therefore, let your servant remain instead of the lad as a
servant to my master and let the lad go up with his brothers” (Bere-
ishis 44:33). From a halachic standpoint it is difficult to understand
Yehudah’s proposal. Being a servant in Egypt meant his life being in
constant danger, for the ruler would be liable to have him put to death
for any mistake. How then did Yehudah endanger his life for Binyam-
in’s sake when the halachah is that we do not sacrifice one life to save
another, as stated in the Shulchan Aruch (Choshen Mishpat 425:2)?4

In the sefer Sichos Lesefer Bereishis the author discusses this ques-
tion and one the answers he suggests is that in relation to the danger
into which Yehudah would be placing himself as a servant – which was
neither definite nor immediate – Yehudah saw the immediate danger
to Yaakov Avinu as being more serious. So he told Yosef: “It will be
that when he sees that the lad is not with us, he will die.” (Bereishis,
44,31) Yehudah therefore thought that the doubtful danger to himself
as a servant should not set aside the definite danger of Yaakov’s death,
so he offered himself in exchange or Binyamin so that nothing evil
should befall Yaakov. This is the view taken by the Yerushalmi (cited
in Choshen Mishpat ibid., in the Sema), namely that a person has an
obligation to place himself in possible danger in order to save his
colleague from certain danger.

Now, all this relates to Yehudah, who wanted to put himself in

4. The topic of risking one’s own safety in order to save someone else is discussed
at length in siman 114 and in siman 115,‘Response to Question One.’

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