JUSTICE - No. 65

23 Fall 2020 14. Emergency Regulations (Detainment Deliberations), 5780-2020; Minister of Justice Amir Ohana signed a notice regarding the application of the Courts and Enforcement Bureau Regulations (Legal Procedures and Special Emergency Situation) 5751-1991. 15. RabbiYaakov de Castro’s words are quoted in Birkai Yosef , Hoshen Mishpat, siman 5, sub-siman 9 [Hebrew]. 16. Babylonian Talmud, Bava Kama 60b, Soncino trans. Although the wording appears to suggest a legal norm (“keep your feet inside”), it seems that this is a provision of an ethical/moral nature, and not a legal duty that can be enforced and whose violation is subject to sanctions. Similarly, the verses quoted suggest a kind of“asmakhta,” a suggestion for the guideline, rather than an actual legal source. 17. Regarding the“story”as a legal source in Jewish law, see Menachem Elon, J EWISH L AW , chap. 23 (Bernard Auerbach & Melvin J. Sykes, trans., JPS Philadelphia, Jerusalem, 1994). 18. See also the work of the Maharshal (Poland, 16th century) Yam Shel Shlomo, Bava Kama, chap. 6, siman 26, dealing with the Talmud text and stating that from the outset it is appropriate to flee, but this is not the case after the spreading of the disease and “especially after the pestilence has taken hold, there is greater danger to those who flee from the non-Jews than from the pestilence when, due to our many transgressions it is known, but at the outset it is good to flee.”His words carry a clear reference to the persecution of Jews and the antisemitic charges that they were“spreading the pestilence.” distinguish between sources dealing with an epidemic on a theoretical, academic level and sources relating to an epidemic in a particular time and specific circumstances. We also note the distinction between the substantive and the procedural aspects of the discussions. With respect to the procedural aspect, as with the orders and guidelines issued in Israel in 2020 during the coronavirus pandemic, 14 it has been long established in Jewish law that during an epidemic, a legal proceeding may be delayed if it does not involve an urgent matter. Rabbi Yaakov de Castro, a 16 th century Egyptian scholar, wrote: “It is to be determined and ruled not to schedule a date to appear before the rabbinic court during a time that there is concern of an epidemic in the city, and if a proceeding has been scheduled the party is not required to appear.” 15 The Obligation to Quarantine Oneself As early as the period of the Tanaim, the sages of the Mishnaic period [10-220 CE], we note a person’s moral or legal duty to remain at home during an epidemic. As we see in the“Baraita”: Our Rabbis taught: When there is an epidemic in the town keep your feet inside [the house], as stated, “And none of you shall go out at the door of his house until the morning” [Exodus 12:20]. It further says, “Come, my people, enter thou into thy chambers and shut thy doors about thee” [Isaiah 26:20]. It again says: “The sword without, the terror within shall destroy” [Deuteronomy 32:25]. 16 The discussion in the Talmud states that the instruction to shut oneself in one’s house at a time of a raging epidemic applies both during daytime and at night. Even at a time when those inside the house feel terror, when there is“terror within,” it is preferable to stay home and not go outside, because“the sword will destroy [more] without.” And the Talmud recounts a story of Rava, 17 who during times when an epidemic was raging used to keep the windows of the house shut, as it is written: “for death has come up into our windows” (Jeremiah 9:20). 18 This approach is the focal point of tort law in Jewish law and reflects a basic difference between it and contemporary law. In modern legal systems, there is generally no explicit prohibition against doing damage, unless there is a provision of a duty of compensation or imposition of criminal liability on the malfeasor, after and due to the occurrence of the damage. This is not the case in Jewish law, which applies a prohibition and duty of advance warning to a person who has the potential to cause damage. According to Ba’alei Hatosfot (France, 12 th century),“a person must take more care not to cause harm to others than not to be harmed himself” (Tosfot, Bava Kama 23a, first word“ulechayev”; Bava Kama 27b, beginning word“h”g amai”). Indeed, because of this, some of the later commentators distinguished between various kinds of diseases, and some commentators also considered psychological aspects of the epidemic. For example, RabbiYosef Haim, one of the great scholars of Babylonia (Iraq) in the 19 th century and author of “BenYisrael Chai,”wrote: Know that … in the case of cholera… it is good for him to flee, and [to] quarantine