By Aviad Hacohen
One smile from a freed hostage is worth more than a thousand words.
Yet joy and hope are tinged with sorrow — and concern. Alongside them, we carry a tense anticipation for the continuation of this process, a yearning and prayer for the return home of all other hostages and captives, both the living and the dead. Our care extends to the well-being of our soldiers who remain on guard, to residents living along confrontation lines, and to those displaced from their homes. We are haunted by fears of what those released murderers, along with their accomplices, might yet do to us.
The combination of boundless joy with sorrow and concern has accompanied the world of Torah since its earliest days.
The verse, “Serve the Lord with fear and rejoice with trembling” (Psalms 2:11) was interpreted by some of the sages of the Talmud (Yoma 4a and its parallel in Berakhot 30b) not merely as a description of a given state or as a “good piece of advice,” but as an obligation:
“Rabbi Mattia ben Harash said: The verse was stated only to inspire awe in him [Moses, before ascending Mount Sinai to receive the Torah], so that the Torah would be given with dread, trembling, and quaking, as it is said, ‘Serve the Lord with fear and rejoice with trembling.’ What is the meaning of ‘and rejoice with trembling’? Rav Adda bar Mattana said in the name of Rav: In the place of rejoicing, there must also be trembling.”
Rejoicing and joy can blind the eye, obscuring reality; hence, they require heightened caution.
The issue of redeeming captives has preoccupied the Jewish people in general — and Israeli society in particular — for many years. In recent generations, due to contemporary events, some Torah sages have been compelled to examine this issue from the perspective of the sources of Jewish law. Each offered their perspective, some saying one thing and others another.
One of the central sources cited to support the approach emphasizing “not at any cost” is based on a tannaitic halakhah (Mishnah Gittin 4:6) included among other laws instituted “for the sake of societal order” (mipnei tikkun ha-olam):
“We do not redeem captives for more than their value, for the sake of societal order; nor do we aid captives in escaping, for the sake of societal order. Rabban Shimon ben Gamliel says: for the benefit of the captives.”
Indeed, the Mishnah does not specify which “captives” are being referred to or the circumstances of their captivity. Was it a single individual taken hostage for ransom, or does this include prisoners of war as well? Even the Talmud, which expands on the Mishnah’s discussion, does not provide definitive guidance on this matter.
Some commentators and halakhic authorities adhered to the latter interpretation and, based on this perspective, argued that even today, it is absolutely forbidden to succumb to captors’ demands, even at the cost of endangering the captives. They contended that acquiescing to such demands would only incentivize further efforts to take more hostages.
As is often the case with contemporary issues, where the realities being addressed differ entirely from those known to earlier sages and the sources they engaged with, a halakhic authority’s position frequently first emerges from their political or security worldview and only later finds grounding in the sources. Consequently, halakhic authorities often arrive at diametrically opposed conclusions, despite all relying on the same corpus of Jewish legal texts.
At times, efforts to draw conclusions from halakhot recorded in the ancient Mishnah for application to today’s circumstances risk oversimplification or outright anachronism. In this context, the reality of “redeeming captives” in our times is fundamentally different. Today, we are not dealing with “private” captivity — a partisan act of professional robbers or even combatants — but with citizens and soldiers of a sovereign state. The considerations of such a state — particularly as it is bound by the laws of war under international law and broader macro-level concerns — may, and arguably must, differ entirely from those faced by the formulators of the original halakhic principles.
One of the key sources on this issue is found in Maimonides’ “Mishneh Torah.”
Although Maimonides was unparalleled — not only in his generation but for generations to come — in his inclusion of a section titled “Laws of Kings and Their Wars” within his monumental work, he does not address the aforementioned halakhah in that section. Rather, he places it in “Laws of Gifts to the Poor” (chapter 8, laws 10–12), within the Book of Judges, which is dedicated to public judicial systems (judges, courts and kings).
Thus, “the Great Eagle” teaches us in “Mishneh Torah”:
“Redeeming captives takes precedence over feeding the poor or clothing them. There is no greater mitzvah than redeeming captives, for the captive is included among the hungry, the thirsty, and the naked, and they are in danger of their lives. One who averts their eyes from redeeming them violates the commandments ‘Do not harden your heart or shut your hand’ (Deuteronomy 15:7), ‘Do not stand idly by the blood of your neighbor’ (Leviticus 19:16), and ‘You shall not rule over them with crushing labor before your eyes’ (Leviticus 25:53) and neglects the mitzvot ‘You shall surely open your hand to them’ (Deuteronomy 15:8), ‘Your brother shall live with you’ (Leviticus 25:36), ‘Love your neighbor as yourself’ (Leviticus 19:18), ‘Rescue those taken to death’ (Proverbs 24:11), and many similar commandments. There is no mitzvah greater than redeeming captives.
“However, we do not redeem captives for more than their value for the sake of societal order (tikkun ha-olam), so that enemies will not pursue further captives. Nor do we assist captives in escaping for the sake of societal order, so that the enemies will not impose heavier burdens on them or increase their security measures.”
The placement of this law specifically within “Laws of Gifts to the Poor” and in the context of charity, rather than in “Laws of Kings and Their Wars,” as well as the array of verses Maimonides cites to support his argument — most of which pertain to the mitzvah of charity rather than the laws of warfare — suggests that, at least from Maimonides’ perspective, the “enemy” mentioned here is not necessarily a foreign army. Instead, it refers to a wicked individual, a scoundrel who kidnaps people for financial extortion. Accordingly, this law does not necessarily yield direct conclusions regarding its application to the laws of war. While the reasoning behind the halakhah may bear relevance to the laws of war, it cannot be automatically or identically applied “one-to-one” to captives — whether civilians or soldiers — taken during a state’s conflict with its enemies.
As in other cases, paying attention to the placement of the law in Maimonides’ writings is of utmost importance. It can illuminate not only his understanding of the Talmudic discussion but also its implications, boundaries and limitations.
Aviad Hacohen serves as the President of Sha’arei Mishpat Academic College and previously held the position of dean at its law school. Professor Hacohen’s extensive academic research encompasses Mishpat Ivri, human rights, criminal law, civil law, and their intersections with Jewish law.
