The Status of a Fetus in Halacha (Part VII)

To briefly review, the Rambam associates the fetus with a rodef when explaining why one is allowed to sacrifice a fetus in order to save the life of its mother. Thus, to explain the reasoning of the Rambam, we are now exploring the sugya of “rodef” and why one is allowed to kill a rodef.

Previously, we suggested three main approaches for why one is allowed to kill a rodef; we will now analyze these three approaches in greater depth:

Saving the Rodef from the Aveirah

Both Rashi and the Yad Ramah (both in Sanhedrin 73a) explicitly state that the reason we kill the rodef is to save the rodef from violating the aveirah or murder.

A) Potential proofs for this opinion

There are several potential proofs for this shitah. One potential proof is the fact that the Mishna says that “we save them by killing the rodef.” It is very possible that the word “save” is referring to the rodef, and we are saving him from the aveirah of murder.

Of course, this is not such a strong proof, because this can just easily be referring to the nirdaf (the one being pursued as well.

However, we could defend our initial premise by pointing out that the end of the Mishna states, regarding the potential violation of Shabbos or avodah zara, that we do not save them (“ain matzilin osan bi’nafshan”); and in these cases, there is no nirdaf. (These are aveiros bein adam la’Makom: between one and Hashem.) Thus, in these cases, when the Mishna says “save,” it is clearly referring to the person who is about to violate the aveirah, namely, the “rodef” of each case.

Nevertheless, we can reject this proof as well. The Mishna is split into two separate parts. Thus, it is possible that the beginning of the Mishna is referring to saving the nirdaf (the recipient of the aveirah), while the end of the Mishna is referring to saving the perpetrator (the rodef – who is about to violate the aveirah of avodah zara and chillul Shabbos).

This could also be the underlying distinction between the first and second half of the Mishna. When someone is a rodef and is about to hurt another person, we intervene to save the victim. However, when the rodef is trying to violate Shabbos or avodah zara, since there is no human victim, we do not intervene to kill the rodef merely to prevent the aveirah from taking place.

B) The underlying logic of this approach

The underlying logic for this approach might be as follows: while life is infinitely valuable, there are some aveiros that are so severe and spiritually damaging that it would be better to die without violating it than to live and have violate it. And even though one would be chayiv missah if they successfully killed someone, and would then receive the death penalty as the onesh (punishment) for this aveirah, it is far better to die beforehand, and not have violated this aveirah, than to have perpetrated such a heinous crime and receive the death penalty as a kaparah (atonement).

Normally, we use the pasuk of “V’chai bahem” (which means that you should live by the mitzvos (and not die by them)) to teach us that we can violate any aveirah to save our life. However, the Gemara (Sanhedrin 74a) teaches us that there are three main exceptions to this rule: murder, idolatry, and adultery. Among the explanations given for why murder is on this list is that murder is such a terrible aveirah that it is better to die without having committed such a terrible sin, than to live having done so.

As such, we are actually doing a chesed for the rodef by preventing him from spiritually destroying himself. The rodef now gets to die without the blemish of murder tainting his soul.

The Rodef Is Chayav Missah

Asserting that the rodef is chayav missah for attempting to kill someone is a truly fascinating approach, given that the rodef has not actually committed the act of murder yet. Thus, we convicting him for an act that he is trying to perform, not one he has already succeeded in performing. Why is this the case? There are two main explanations we can suggest:

A) It is as if he has already killed him

According to this explanation, we would essentially be fast forwarding the “natural course” of events in order to see the natural outcome of the rodef’s current act. We are therefore able to define the rodef’s act as if it already completed (most probably for the sake of saving the nirdaf), and consequently, we can now execute the rodef.

Indeed, the Gemara (Sanhedrin 74a) states that when a rodef breaks keilim while chasing the nirdaf, he is pattur (exempt) from paying back the monetary damage because he is “mischayav bi’nafsho,” meaning, already liable for the much worse aveirah of murder. This sounds like the Gemara is using the concept of kim le b’d’rabah minei – that when one is chayav for multiple onshim, they receive only the most severe of them. Thus, since he is chayav missah (for murder), he is not chayav to pay for the monetary damage.

However, we can reject this proof for the following reasons:

We can also interpret this Gemara (Sanhedrin 74a) to mean the following: the chiyuv missah is a result of the fact that you have to save the rodef from violating the aveirah or save the nirdaf from being killed. Thus, the rodef receives a din missah, but not because we view it as if he actually violated the issur of retzicha.

The fact that we are supposed to wound the rodef first, if possible, seems to imply that the rodef is not chayav missah; because if he was chayav missah, shouldn’t killing him should be our first option? However, this is not such a strong rejection, because we could argue that the only time he is really chayav missah is when the only way we can stop him is by killing him. Furthermore, it is a tremendous chidush that the nirdaf or third-party bystanders are allowed to become vigilantes and carry out the law themselves. Normally, even if someone is chayav missah, only beis din can enforce that din and execute the person. Thus, it makes sense that one would only be allowed to kill the rodef if killing him was the only means of preventing the act of murder.

The “rishus ha’gavra” (evil status of the rodef) is the michayav (source of his status)

Rav Yosef Dov Soloveichik suggested this approach, and he explained as follows:

Normally, the reason one becomes chayav missah is for the illicit act (the ma’asah aveirah) that they did. Thus, a rotzeach is chayav missah for the act of killing someone, just like a ganav is punished for the act of stealing. Even if this person was previously a tzaddik, the act itself is what creates the chiyuv missah and his new status that goes along with it.

However, in certain cases, it’s not the act that creates his status, but the person he has become; or more specifically, the person he currently is at the time the act is still being done. This principle can explain an entire host of topics that seem to fall into this same category, including:

Ben Sorer U’Morer: The actions of the Ben Sorer U’Morer have started him down a path of no return, and turned him into a rasha.

Eideim Zomimim: when witnesses are caught to be lying (because other witnesses testified that these witnesses were in a different place at the time of their testimony), they are not chayav for succeeding; they are only chayav in beis din (shel matah) when they do not succeed. It is the attempt to attack the system of emes and beis din itself that creates their status, and that status creates the chiyuv.

Rodef: The same is true of a rodef. Yes, he did not yet kill anyone. But he is trying to kill someone, and that reveals that he has become an evil personal – at least at the current moment – and that warrants the death penalty.

And therefore, if we can maim the rodef instead of killing him, should we? Yes.

And if he fails to kill to the nirdaf, is he still chayav missah post facto? No.

But within the boundaries of time that he is still in the midst of trying to kill the nirdaf, the rodef receives this unique din gavra, and is thus chayav missah.

Saving the Nirdaf

Many of the Rishonim and Achronim, including the Rambam (Hilchos Rotzeach 1:6), Yad Ramah (Sanhedrin 73a), and Minchas Chinuch (Mitzvah 295-296) seem to suggest that the only reason we are allowed to kill the rodef is to save the nirdaf (the victim being pursued). Defending this shitah is quite easy, as the Mishna reads beautifully according to this opinion. The Mishna would read as follows: “And these are the people who you can save (namely, the nirdaf) by taking their lives (namely, the rodef).

And yet, once we begin to break this down and analyze it, this shitah seems to be a very strange and unique. After all, the Gemara explicitly says that one is not allowed to kill someone in order to save a life (Sanhedrin 74a). If so, what changes in the case of a rodef, where both the nirdaf and an onlooking third party are now allowed to kill the rodef to save the nirdaf’s

A major part of explaining this approach requires us to first understand why the Torah does not allow us to kill someone else in order to save a life. (We will discuss this at greater length in a future column.) There are three opinions mentioned in the Rishonim:

Chumras ha’aveirah: the aveirah is so severe. (Ramban)

You cannot play G-d and choose whose life is more valuable, even if there is one that is indeed more valuable. (Tosafos)

Similarly: all life is infinitely valuable, and therefore equally valuable, and therefore you cannot play G-d and choose whose life is more valuable.

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