I. Rules are Inviolable
Ross, W.D. (1930) “What Makes Right Acts Right?”
The view of Kant [is] that there are certain duties of perfect obligation, such as those of fulfilling promises, of paying debts, of telling the truth, which admit of no exception whatever in favour of duties of imperfect obligation, such as that of relieving distress
II. “Conflicts” are not Conflicts
Hare, R.M. (1981) Moral Thinking, Ch. 2
It will be illuminating at this point to take a look at the phenomena of moral conflict and ask why philosophers, and indeed most of us, are so certain that we sometimes ought to do two things of which we cannot do both. [...]
Let us then suppose that I start off with principles that one ought never to do an act which is F (some property of acts, e.g. being an instance of promise-breaking), and that one ought never to do an act which is G (some other property), and that I find myself in a situation in which I cannot avoid doing either an F act or a G act. And suppose that I decide, all things considered, that I ought to do the F act, to escape the (worse) G act. We might then try supposing that, as a result of this piece of moral thinking (however it was done), one of my moral principles has changed. Instead of reading ‘One ought never to do an act which is F’, it now reads ‘One ought never to do an act which is F, unless it is necessary in order to avoid an act which is G’.
III. Conflicts call for Maths (utility calculation)
Hare, R.M. (1981) Moral Thinking, Ch. 2
I am not yet taking sides on the question of how simple moral principles have to be. As we shall see, it depends on the purposes for which the principles are to be used; different sorts of principles are appropriate to different roles in our moral thinking. Let us then look at some of these roles and purposes. One very important one is in learning. If principles reach more than a certain degree of complexity, it will be impossible to formulate them verbally in sentences of manageable length. [...] A principle which is going to be useful as a practical guide will have to be unspecific enough to cover a variety of situations all of which have certain salient features in common. [...] A further reason for relying in much of our moral conduct on relatively general principles is that, if we do not, we expose ourselves to constant temptation to special pleading. In practice, especially when in haste or under stress, we may easily, being human, ‘cook’ our moral thinking to suit our own interest.
But however well equipped we are with these relatively simple, prima facie, intuitive principles or dispositions, we are bound to find ourselves in situations in which they conflict and in which, therefore, some other, non-intuitive kind of thinking is called for, to resolve the conflict.[...] What will settle the question is a type of thinking [...] which I am calling critical thinking. Critical thinking consists in making a choice under the constraints imposed by the logical properties of the moral concepts and by the non-moral facts, and by nothing else.
IV. Conflicts call for more Maths (considering rule function)
Scanlon, Thomas. (1998) What We Owe Each Other. Ch 5
So even the most familiar moral principles are not rules which can be easily applied without appeals to judgment. Their succinct verbal formulations turn out on closer examination to be mere labels for much more complex ideas. Moral principles are in this respect much like some legal ones. The constitutional formula “Congress shall make no law abridging freedom of speech, or of the press” may sound like a simple prohibition. But the underlying idea is much more complicated.
There is of course considerable controversy about what, more precisely, this amendment covers. What is striking, however, and more relevant for present purposes, is the breadth and complexity of the area of agreement. Presented with a range of examples of governmental regulation of expression, people who understand freedom of expression will agree on a wide range of judgments about which of these involve violations of the First Amendment and which do not. These cases are sufficiently varied that it would be difficult to explain our convergent judgments as applications of any statable rule. How, then, do we arrive at these judgments? We do so, I believe, by appeal to a shared sense of what the point of freedom of expression is and how it is supposed to work: why restrictions on governmental power to regulate expression are necessary, what threats they are supposed to rule out, and what it is that they are trying to promote
V. How and Why to Get Rid of Rules
Scanlon, Thomas. (1998). What We Owe Each Other. Ch 5
[T]he general authorization or prohibition of a class of actions can have significance that goes beyond the consequences of the actions that are performed or not performed as a result. This can be seen both from the point of view of agents and from that of the people who may be affected by these actions. As agents, if we know that we must stand ready to perform actions of a certain kind should they be required, or that we cannot count on being able to perform acts of another kind should we want to, because they are forbidden, these things have important effects on our planning and on the organization of our lives whether or not any occasions of the relevant sort ever actually present themselves. If, for example, I lived in a desert area and were obligated to provide food for strangers in need who came by my house, then I would have to take account of this possibility in my shopping and consumption, whether or not anyone ever asked me for this kind of help; and if I am not entitled to photocopy articles at will when they turn out to be useful in my course, then I have reason to order a more inclusive anthology to begin with, even though this may prove to have been unnecessary. The same is true from the point of view of those affected by actions. Our need for privacy, for example, is not met simply because, as a matter of fact, other people do not listen in on our phone calls and go through our personal files. In order to have the benefits of privacy we need to have assurance that this will not happen, and this is something that general acceptance of a principle can provide.
רַבִּי שִׁמְעוֹן בֶּן מְנַסְיָא אוֹמֵר וְשָׁמְרוּ בְנֵי יִשְׂרָאֵל אֶת הַשַּׁבָּת אָמְרָה תּוֹרָה חַלֵּל עָלָיו שַׁבָּת אַחַת כְּדֵי שֶׁיִּשְׁמוֹר שַׁבָּתוֹת הַרְבֵּה.
אָמַר רַב יְהוּדָה אָמַר שְׁמוּאֵל אִי הֲוַאי הָתָם הֲוָה אָמֵינָא דִּידִי עֲדִיפָא מִדִּידְהוּ וְחַי בָּהֶם וְלֹא שֶׁיָּמוּת בָּהֶם
Rabbi Shimon ben Menasya said: It is stated: “And the children of Israel shall keep Shabbat, to observe Shabbat” (Exodus 31:16).The Torah said: Desecrate one Shabbat on his behalf so he will observe many Shabbatot.
Rav Yehuda said that Shmuel said: If I would have been there among those Sages who debated this question, I would have said that my proof is preferable to theirs, as it states: “You shall keep My statutes and My ordinances, which a person shall do and live by them” (Leviticus 18:5), and not that he should die by them. In all circumstances, one must take care not to die as a result of fulfilling the mitzvot.
Mati Goldstein commander of the Jewish ZAKA rescue-mission to 2010 Haiti earthquake (https://www.ynetnews.com/articles/0,7340,L-3835327,00.html)
"We did everything to save lives, despite Shabbat. People asked, 'Why are you here? There are no Jews here', but we are here because the Torah orders us to save lives… We are desecrating Shabbat with pride…"
(28) In the previous chapter, we established that piku’ach nefesh (saving a life) overrides the restrictions of Shabbat. We now explore whether one must attempt to minimize desecration of Shabbat in such situations. In technical terms, this discussion is called hutrah or dechuyah. Hutrah (literally, “permitted”) means that, due to the life-threatening circumstances, the acts are not viewed as desecration of Shabbat at all. Dechuyah (literally, “superceded”) means that the acts are always viewed as fundamentally prohibited, but they are permitted to the extent that they must be done to save a life.
(29) Talmudic Background
(30) The Gemara never explicitly discusses whether violating Shabbat to save a life is hutrah or dechuyah, but the terms hutrah and dechuyah do appear in the Gemara in other contexts. Although the Talmud does not address piku’ach nefesh explicitly, four sources implicitly address this issue in the context of Shabbat, with two sources seeming to support each possibility.
(31) The Gemara (Shabbat 128b) rules that one may light a lamp on Shabbat in a room where a blind woman is giving birth if the blind woman requests that a lamp be lit. Although she will not directly benefit from the light, the Gemara explains that kindling the lamp soothes her mind. Many argue that this source demonstrates that piku’ach nefesh is hutrah. Otherwise, such a violation of Shabbat would not be permissible, for it does not directly contribute towards saving her life.
(32) Moreover, the Gemara (Yoma 84b) states that when Shabbat must be violated, gedolei Yisrael (literally, “big ones of the Jews”) should perform the act, rather than a non-Jew or a Jewish minor. If piku’ach nefesh were dechuyah, asking a child or a non-Jew to violate Shabbat would appear to be preferable, since their desecration of Shabbat is far less severe than that of an adult Jew. Thus, piku’ach nefesh seems to be hutrah. However, those who maintain that it is merely dechuyah counter that ideally it would be preferable to request from a non-Jew to violate Shabbat instead of a Jew, but this behavior would lead people to mistakenly believe that Jews may not violate Shabbat even for piku’ach nefesh. Such a mistake would likely lead to deaths in situations where no non-Jew is available, as the Jews present would not realize that they should violate Shabbat in order to save the endangered person. Chazal therefore commanded Jews to violate Shabbat in all life-threatening emergencies, even when a non-Jew could save the life and spare the Jews from desecrating Shabbat.
(33) In contrast to the last two sources, the Gemara elsewhere (Shabbat 128b) teaches that whenever possible, one should violate Shabbat in case of emergency by using a shinui (a deviation from the normal way of doing something, which is only rabbinically forbidden). This qualification implies that saving a life on Shabbat is dechuyah, so one must try to lower the prohibited act to a rabbinic prohibition.
(34) Furthermore, the Gemara (Menachot 64a) presents a scenario where one has two options for how to act in a life-threatening situation, and he must choose the option that entails the least possible desecration of Shabbat. In the Gemara’s case, two dates have been prescribed as a remedy for a critically ill individual. These dates could be obtained either by cutting one date from each of two branches or by cutting one branch that holds three dates. The Gemara concludes that one should cut the lone branch containing three dates in order to reduce the number of prohibited acts of pruning (ketzirah). This source implies that even while aiding a dangerously ill person, we must limit Shabbat violations as much as possible.
(35) The Rishonim
(36) The Rosh (Yoma 8:14) cites a dispute that appears to highlight the difference between hutrah and dechuyah. In the case that arose, a dangerously ill person needed to eat meat on Shabbat, but no kosher meat was available. Either he could eat non-kosher meat, which happened to be readily available, or another Jew could violate the laws of Shabbat by slaughtering a kosher animal for him.
(37) The Rosh quotes some Rishonim who deem it preferable to eat the non-kosher meat, for eating non-kosher meat entails a less severe prohibition (a regular Biblical negative commandment) than desecrating Shabbat (a capital offense). Their position implies that even when acting to save a life, the act of slaughtering is merely dechuyah, so its severity must be weighed against alternative methods of saving the sick individual.
(38) However, the Maharam of Rothenburg (cited by the Rosh) writes that it is preferable to slaughter the animal for the ailing person on Shabbat. He compares slaughtering an animal for a sick person to cooking or lighting a fire on Yom Tov (festivals). Just as cooking and lighting a fire constitute melachot (prohibited activities on Shabbat and Yom Tov), yet the Torah completely permits them under most circumstances on Yom Tov - “like on a weekday” - so, too, the act of slaughtering constitutes a melachah but “any melachah done for a dangerously ill individual on Shabbat is as if it is being done during the week.”
, כמו דאיתא (בגמ')[רות רבה פרשה ג',ב'] שאמר ליה קיסר לר' יהושע בן חנניא גם אני יכול לעשות תורה כמשה וגזר שלא יבערו אש ג' ימים ובתוך כן ראה עשן יוצא מבית אחד והשיב לו הקיסר כי שר אחד חלה והוכרח להתיר לו. והאמנם כי גם אצלינו הדין ע"פ תורתנו הקדושה כי פקוח נפש דוחה שבת, אך החילוק כי המחלל שבת ע"פ פקוח נפש אינו מתנגד לתוה"ק, כי גם זאת נצטוינו שפקוח נפש ידחה שבת. וכן בכל מקום שהוא עת לעשות לה' נרמז הציוי של הפרו תורתך ולכן התורה כוללת כל הרפתקאות שיעברו, ואורה מקיף כל האופנים וכל ההתהוות שאפשר להתהוות, וזה אין בכח שום אדם לעשות, וזה שמפרש בזוה"ק על לא תעשה לך פסל היינו במצות עשה, וכל תמונה הוא במצות ל"ת, כי לא נגלה לאדם שום דבר עד תכליתו.
