Q: Can a halachic issue be decided on the basis of a lottery?
“Those aboard said to one another, ‘Let us cast lots and find out on whose account this misfortune has come upon us.’ They cast lots and the lot fell on Yonah (Yonah 1:7).
The ship Yonah is traveling on is thrown into mortal jeopardy. To determine the cause of this sudden storm the crew cast lots to ascertain who might be the cause of this unnatural phenomenon. While the Sefer Chassidim (no. 701) generally condemns the use of a lottery to render life-and-death decisions, it is clear from what he writes earlier (no. 679) that in an apparently supernatural situation in which one ship is being thrown asunder by the elements whilst the surrounding vessels are unaffected, that a lottery may be employed. Such a lottery should result in the drawing of the same name three times consecutively and be accompanied by fervent prayer that it be guided by G-d’s hand. And rather than simply have the individual walk the plank, they should put him in either an escape boat or provide him a makeshift flotation device in order to afford him a chance at survival. (See also Shayarei Kneses HaGedolah, C.M. 173, who raises the seeming inconsistency in the Sefer Chassidim.)
There is a dispute regarding a related scenario in which bandits order a group of Jews to surrender one of their own to be killed, whether the Jews may cast lots to determine who should be forfeited. The Tiferes L’Moshe, cited in the Pischei Teshuvah (Y.D. 157:13), argues that similar to the story of Yonah (as well as other instances involving the Givonim and Achan) such a lottery would be permissible. The Sdei Chemed (3:60) concurs with this position and substantiates the halachic significance of a lottery from a Talmudic passage (Bava Basra 106b) addressing inheritance law:
It is taught in a baraisa that Rabbi Yosei says: When brothers divide [their father’s estate between them by lottery], once the lot for one of them is drawn, they all acquire (the remainder of the property, and they can no longer retract their decision to divide the estate in this manner). What is the reason for this? Rabbi Elazar said: This is similar to the initial [division of] the Land of Israel. Just as the initial [division was carried out] by [drawing] lots, so too here, by lots.
Thus, it would appear from this Gemara that a lottery can be utilized as a legitimate mechanism for settling disputes and ambiguities. However, there are those, such as the Chadrei Deah (Y.D. ad loc), who do not see such sources as a proof positive for the utilization of lotteries. Indeed, the passage in Bava Basra continues by challenging the extrapolation from the lots drawn during the division of the Land of Israel:
If [this is true,] just as there [the initial division of the Land of Israel was carried out] through a receptacle (bekalpi) [in which lots were placed] and the Urim VeTummim (within the breastplate of the High Priest), so too here, [the division of the father’s estate should be executed only] through a receptacle and the Urim VeTummim? Rav Ashi said: With the satisfaction [that each of the brothers receives from the fact] that they listen to each other [and agree to accept the results of the lottery], they fully transfer [ownership] to each other.
Thus, we can infer from this Gemara that, by default, only a lottery which clearly employs Divine guidance through components such as the Urim VeTummim would be binding. (Moreover, the Sefer Chassidim points out that when it comes to monetary matters a lottery is essentially gambling which throws the entire legitimacy of the agreement into question under the principle known as esmachata lo kanya). If a lottery cannot be used to adjudicate financial matters, how could we entertain the possibility that it could be utilized to determine who we ought to send to their death?
To resolve the conflicting sources regarding the legitimacy of using a lottery as a legal mechanism, we need to investigate what legal effect a lottery would supposedly produce. R. Mordechai Carlebach, based on R. Chaim Soloveitchik (Hilchos Shecheinim 2:11), explains that the point of a lottery is not to effectuate a transference of ownership or to automatically render a verdict (chalos), but to disambiguate or provide a selection (beirur). Therefore, the conclusion of the Gemara in Bava Basra needed to introduce an additional factor to validate the legal acquisition of the property divided amongst the brothers, since a lottery cannot effectuate a legal acquisition.
This framework can also explain how it might be permissible to surrender one individual to bandits by way of a lottery. The Jerusalem Talmud (Terumos 8:20) records a dispute:
It was stated: “A group of people on the road were met by Gentiles who said to them, give us one of you that we may kill him; otherwise we shall kill all of you. Even if all of them are killed they should not hand over a Jewish person. If they designated one, like Sheva ben Bichri, they should hand him over so as not to be killed.” Rebbi Shimon ben Lakish said, “On condition that he be guilty of a capital crime like Sheva ben Bichri”; but Rebbi Yochanan said, even if he is not guilty of a capital crime like Sheva ben Bichri.
According to R. Yochanan, while the group generally may not forfeit one of their own, if the bandits designate a particular individual, it is then they who have chosen him, not the Jews. Likewise, R. Carlebach suggests that if the bandits did not pick a particular person, but the Jews opted to draw lots, their lottery would actually be able to serve as a mechanism for selection. Meaning, that while a lottery cannot serve to render a death penalty or other verdict, it can serve as a tool for providing a selection which ultimately helps arrive at a final decision. Thus, the Jews would not be permitted to physically kill one of their own to spare their lives, but they would be allowed to hand him over those who would.
A Jew is supposed to avoid gambling and living a life of gratuitous exposure to potential peril (see Sanhedrin 24b). Nonetheless, life is full of calculated risks and thus we must make a reasonable effort (hishtadlus) coupled with trust in G-d’s providence (bitachon) to ensure that we live faithful and prosperous lives. To that end the Chavos Yair (no. 61) cautions against the use of lotteries, for it is doubtful whether this method will necessarily be influenced by G-d, like in the case of Yonah and Achan (see Sanhedrin 43b) or left up purely to chance.
This piece has been based on the acclaimed sefer Chavatzeles HaSharon. Note: This article is not intended to dispense practical halachic conclusions. The Torah presented here is but a small extraction from the breadth of the sefer Chavatzeles HaSharon and is not affiliated with the author in any official capacity. Translations are adapted from Sefaria, Chabad.org, Mechon Mamre, and my own.
