Our Parashah includes the description of what is surely the most famous ‘kidnapping’ in history: The snatching of Yosef by his brothers, and his subsequent sale to the Egypt-bound group of Ishmaelites. It was this fateful episode that led to the descent of our entire nation to Egypt, the exile and hardships it went on to experience, and, ultimately, the miraculous redemption in the hands of God.
We will take the opportunity to dwell on the halachic aspects of captors and captives, and, in particular, the delicate questions of how to react to captors’ demands for ransoms in exchange for freeing their prisoner.
Throughout the generations, both halachic and historical literature reveal how Jews, in their various countries of exile, suffered greatly from bandits, who found a way to make easy income by capturing Jews and demanding exorbitant ransom money. At certain times, this ploy for making money was employed not only by vagabond anarchists, but even by state machinery. State coffers could be filled by fabricating legal cases against Jews, in order to demand money for their release.
Today, the question of redeeming captives remains tragic, difficult, and very delicate. Instead of money, the demand of modern kidnappers, namely terrorist groups who capture soldiers or civilians, is the release of terrorists.
This, of course, presents a terrible dilemma to decision-makers: The life and freedom of every Jew is priceless, but practically, how much should we be prepared to pay? Is the release of murderers, who are most likely to return to their previous ‘occupation’, justified halachically? In this article we will try and discuss this question.
Paying More than the Captive’s Value
The Gemara teaches that the mitzvah of redeeming captives from their captivity is a “great mitzvah,” a term reserved for only a number of mitzvos. Based on its unique importance, the redemption of captives is given first priority when allocating charity money. In the words of Shulchan Aruch (Yoreh De’ah 252:1), “No mitzvah is as great as the redemption of captives.”
The Gemara also highlights the dire plight of the captive, who finds himself at the mercy of his captors, who are liable to torture him, place him through unspoken suffering, and even kill him. Shulchan Aruch (252:3) thus writes that he who is able to redeem a captive, yet fails to do so, is considered to be a murderer.
Nevertheless, the Mishnah (Gittin 45a) teaches that captives should not redeem for any price: “Captives are not redeemed for more than their value.” The reason for this is discussed by the Gemara, which mentions two possible reasons. One is that it would prove too weighty a load on the community. According to this reason, a private individual is permitted to redeem his own family or loved ones, even for great sums of money.
Another suggested reason, is that payment of large sums of money would encourage captors to continue in their evil ways, taking as many captives as possible, for the purpose of making quick and easy riches. According to this rationale, even a private individual would not be permitted to use his personal wealth in order to pay exorbitant sums for the release of his relatives.
Exceptions to the Rule
The Rishonim mention a number of exceptions to this rule. One example, as Tosafos (Gittin 45a) writes, is based on a Gemara which obligates a husband to ransom his wife (on the first occasion that she is taken captive) for a great sum of money. As Tosafos explains, the reason for this is that a person’s wife is considered his own self, and regarding to a person’s own self, no limitation was made on the size of the ransom he may pay.
Tosafos also cite an anecdote mentioned in the Gemara (Gittin 58a), which describes how one of the Tanaim ransomed a child—in whom he saw tremendous potential—for “any sum that [the captors] demand.” According to one explanation offered by Tosafos, the reason why this was permitted was because of the great potential that the child displayed. Indeed, the child grew up to be the great Rabbi Yishmael ben Elisha. As Ramban writes, money is a replaceable commodity, but Torah scholars are irreplaceable. When it comes to Torah scholars, any sum of money is legitimate to procure their release.
According to another explanation of Tosafos, it was permitted to ransom the child for a great sum because the conditions at the time of the Destruction were so dire, that encouragement of the threatening non-Jews could make matters no worse than they already were.
Elsewhere, Tosafos (Gittin 58a) write another reason for this. An exorbitant ransom may be paid when there is an imminent danger to the captive’s life. Ramban disagrees with this explanation, claiming that all cases of captivity involve a danger to the captive’s life, yet ransoming for exorbitant sums remains prohibited. However, as we will see below, a number of halachic authorities do adopt the explanation given by Tosafos.
A number of Rishonim, including Rambam, who is followed by Shulchan Aruch (252:4), rule that the rationale behind the above mentioned prohibition is because we are concerned lest we encourage captors to continue their ways. Shulchan Aruch also rules a number of the exceptions cited above: A person is permitted to redeem himself for large sums, and it is likewise permitted to ransom a Torah scholar, or somebody who is destined (we believe) to become a Torah scholar, for sums beyond his value.
Yam Shel Shlomo (Gittin, chap. 5, no. 66) rules that the rationale behind the prohibition of ransoming for exorbitant sums is the immediate strain this places on the community. Based on this rationale, he explains the custom of a number of communities to actually pay disproportionate ransoms. The reason for this is that the community has a right to ignore and overlook the strain and difficulty of raising the necessary funds.
Yam Shel Shomo adds that in circumstances that present immediate danger to the captive’s life, it is permitted (and obligatory) to ransom a captive even for disproportionate sums. Significantly, he also adds (no. 72) that this is the accepted custom.
Based on his outlook on the issue, Yam Shel Shomo questions the legendary behavior of Maharam of Ruttenburg, who refused to allow his community to ransom him from captivity, and ultimately died in the hands of his captors. His status as a leading Torah scholar should surely have been reason enough to permit his ransoming, even at a great expense. In addition, the captivity endangered his life, and this should also have been a reason to allow for his ransoming, even for disproportionate sums.
What is a Person’s Value?
We have seen that it is forbidden, in principle, to ransom a person for more than his value. What, however, is a person’s value?
In times of old, the definition of a person’s value could be calculated with relative ease, based on the slave market. Maharam of Lublin writes (no. 15) that it is prohibited to ransom a person for more than his value on the slave market. In the absence of a local slave market, the value of a person can be ascertained by comparison to a slave market elsewhere.
Today, however, there are virtually no slave markets anywhere, and the question of how to estimate a person’s value must be raised. Addressing the question of why it is customary to ransom captives for more than their value, without discerning between elderly or young, Radvaz (vol. 1, no. 40) explains that a person’s value should not be determined in the slave market, but rather according to the norm for ransoming captives. In other words, Jewish captives should not be ransomed for a higher sum than equivalent non-Jewish captives. It is interesting to note that Radvaz ends stating the fact of Jews being willing to spend far more than non-Jews on ransoming their captives, and greatly praises this quality.
Nowadays, even the yardstick given by Radvaz is hard to employ, in view of the scarcity of monetary ransoms demanded in today’s world. Because of this difficulty, Rav Shaul Israeli (Chavas Binyanim, shaar 2, no. 15) wrote that today any sum of money would be considered more than the value of the captive, and one should not pay anything as ransom money for a captive.
This opinion, however, comes over as being somewhat extreme, and it would seem more likely that each case must be judged according to individual circumstances, the general rule being that one should not pay (much) more than non-Jews would for the freedom of non-Jewish captives.
Freeing Terrorists: The Danger Element
In the State of Israel today, the ransom that captors are demanding in exchange for captives is not financial, but human. The demand for the freeing of terrorists from Israeli prisons introduces a new, hitherto unexplored element into the question of redeeming captives. Is it permitted to free dangerous prisoners, who are in all likelihood waiting to return to their murderous practices, for the sake of releasing Jewish captives?
One approach to this question is to view it as entering a state of potential danger for the sake of alleviating an immediate, definite danger to the captive’s life. Halachic authorities dispute the halachah of saving another’s life at the expense of placing oneself in a state of potential danger: Some (Hagaos Maimonios, Rotzeach 1:15) maintain that one is obligated to do so, while others (Sema, no. 426) maintain that one is not obligated to do so. Indeed, Radvaz (vol. 3, no. 627) goes so far as to label such a rescue as an act of folly. Freeing terrorists would also seem to fit the category of exchanging a definite danger for a potential danger, which would invoke the dispute of authorities mentioned above.
Nevertheless, we find an explicit ruling in the words of Gilyon Maharsha (Yoreh De’ah 157), who writes that “if somebody is taken captive, and it is known that if he is redeemed, another will be taken in his stead, it is forbidden to redeem him… however, if there is a doubt as to whether the other will be taken captive, we do not abandon the definite captive because of the doubt.” In other words, we should not refrain from redeeming somebody in certain danger because of a potential danger in the future.
This ruling, whereby a possible danger for the future does not defer a certain danger at the present, is also given by Rabbi Ovadya Yosef (Yabia Omer, vol. 10, no. 6).
Freeing Terrorists: Too High a Price?
An additional way in which to analyze the question is by comparison with the halachah whereby one may not pay too high a price for redeeming captives. Is the freeing of terrorists too high a price? Does this not encourage terrorist groups to take more captives, thus causing the release of more imprisoned terrorists?
Addressing this issue, we find an interesting ruling in the writings of Rabbi Shaul Israeli (Chavas Binyanim, loc. cit.). In his opinion, “Soldiers that are sent to military service by the State, for the defense of the people, do so under a non-written yet plainly obvious agreement that the State will do all that is in its powers (within reason) to redeem them in case they fall into captivity… This is an obligation that the State accepts upon itself in exchange for the military service, and therefore, it is considered as though the State is redeeming itself, and the restriction of paying more than the captive’s value does not apply. “
According to Rabbi Israeli, the redemption of soldiers from captivity is comparable to a person’s redemption of himself, or of his wife, which, as we saw above, is not bound by the restriction of too high a price. In this light, Rabbi Israeli rules that the State must be ready to free terrorists, for the sake of returning captured soldiers, for no price (within reason) is too great.
There is room, however, to question the comparison between a person’s redemption of his own self, which Chazal did not wish to restrain, and the redemption of a single person by the entire community—and in this case, by the entire country. The rationale, though perhaps plausible, is certainly arguable.
Rabbi Ovadyah Yosef (op. cit.) relies on a different approach in tackling the question of “At what price?” He quotes a number of halachic authorities who rule that in cases where a captive’s life is in tangible danger, it is permitted to redeem him at any price. As we saw above, this is the opinion of Tosafos and Yam Shel Shlomo, to which Rabbi Yosef adds a number of poskim (see also Pischei Teshuvah 252:4). Based on this principle, he concludes that it is permitted to release terrorists for the sake of redeeming Jewish captives, whose presence in the claws of terrorist organization is certainly an imminent danger to their lives.
It is important to note that it will sometimes be necessary to consider additional, extra-halachic factors, in weighing the difficult decision of freeing prisoners for the sake of redeeming captives. One such factor is the national morale, which can have far-reaching consequences; another is national honor, which borders on the issue of chilul Hashem; a third issue is the motivation of high-school graduates for military service, a matter not to be taken lightly in the State of Israel. These factors have a place in the halachic debate, because their ramifications can be far reaching, even if we cannot point to them in a concrete sense.
We end with a prayer: May we speedily see “sons returning to their borders,” and may the difficult and tragic halachic debates we have raised never enter the realm of real-life application.