The Status of a Fetus in Halacha: What is the Definition of Life? (Part 10)

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 and begun exploring several important nafka minos regarding these three approaches. We will now continue, suggesting several more important nafka minos:

7. Hasra'ah (Warning the Rodef)

The Gemara (Sanhedrin 72b) continues by stating that a rodef does not require hasra'ah (forwarning).

תלמוד בבלי מסכת סנהדרין דף עב עמוד ב

אמר רב הונא: קטן הרודף ניתן להצילו בנפשו. קסבר: רודף אינו צריך התראה, לא שנא גדול ולא שנא קטן

Rav Huna says: If a minor was pursuing another person in order to kill him, the pursued party may be saved with the pursuer’s life. The Gemara explains: Rav Huna maintains that a pursuer, in general, does not require forewarning, and there is no difference with regard to this matter between an adult and a minor.

There is a general principle that when one sees someone in the act of violating an aveirah, the witness should warn them before the aveirah takes place. Why then, by the case of rodef, does the Gemara say that hasra'ah is not required? On a simple level, this could mean that one still has to give hasra'ah, but if this is not possible or if the rodef refuses to accept the warning, then one can still kill the rodef. This seems to be how the Rambam (Rotzeach 1:7) understands the Gemara; the Rambam states that even though one needs to warn the rodef, if the rodef refuses to accept or acknowledge the warning, you are still allowed to take action against him.

רמב"ם הלכות רוצח ושמירת הנפש פרק א הלכה ז

כֵּיצַד. אִם הִזְהִירוּהוּ וַהֲרֵי הוּא רוֹדֵף אַחֲרָיו אַף עַל פִּי שֶׁלֹּא קִבֵּל עָלָיו הַתְרָאָה כֵּיוָן שֶׁעֲדַיִן הוּא רוֹדֵף הֲרֵי זֶה נֶהֱרָג. וְאִם יְכוֹלִים לְהַצִּילוֹ בְּאֵיבָר מֵאֵיבְרֵי הָרוֹדֵף כְּגוֹן שֶׁיַּכּוּ אוֹתוֹ בְּחֵץ אוֹ בְּאֶבֶן אוֹ בְּסַיִף וְיִקְטְעוּ אֶת יָדוֹ אוֹ יִשְׁבְּרוּ אֶת רַגְלוֹ אוֹ יְסַמּוּ אֶת עֵינוֹ עוֹשִׂין. וְאִם [אֵינָן] יְכוֹלִין לְכַוֵּן וּלְהַצִּילוֹ אֶלָּא אִם כֵּן הֲרָגוּהוּ לַרוֹדֵף הֲרֵי אֵלּוּ הוֹרְגִין אוֹתוֹ אַף עַל פִּי שֶׁעֲדַיִן לֹא הָרַג שֶׁנֶּאֱמַר (דברים כה יב) "וְקַצֹּתָה אֶת כַּפָּהּ לֹא תָחוֹס עֵינֶךָ":

What is implied? If the rodef was warned and continues to pursue his intended victim, even though he did not acknowledge the warning, since he continues his pursuit he should be killed…

However, the simple understanding of the Gemara is that one does not even need to warn the rodef in the first place. Yet, how can this even be a possibility? Why would it ever be permissible to kill a rodef without warning him first?

In order to explain this, we need to first understand the possible reasons why hasra'ah is normally required:

1. Deterrent

On the most basic level, hasra'ah can serve a deterrent, attempting to persuade the potential avaryan (sinner) from violating the aveirah. When someone warns him, there is a hope that he will rethink his decision, recalibrate, and withhold from sinning.

2. A Requirement for Beis Din's Conviction

On a slightly more fundamental level, hasra'ah provides important information for Beis Din. When the avaryan comes to court and is prosecuted, he might say: "I didn't know this was wrong." In such a case, the witnesses and judges in Beis Din would have no way of proving that the avaryan acted b'meizid (with intention). Thus, hasra'ah ensures that Beis Din knows that the avaryan acted on purpose, because we now know that he heard the warning and performed the act anyways; he therefore has any excuses.

3. A Qualifying/Worsening of the Action

For Beis Din to convict someone, there is a certain threshold that must be passed – a certain type of act needs to be performed and a certain quality aveirah needs to be violated. Thus, when someone is warned about the terrible nature of an aveirah and they perform the act anyways, it emphasizes the intensity of their aveirah and their rejection of Hashem's will; thus, the hasra’ah turns the aveirah into a much more intentional and evil act: by hearing the warning and performing the aveirah anyways, it is now seen as a direct rebellion against Hashem.

4. A Fundamental Part of "Eidus" (Testimony)

It could be that the din of hasra'ah is not for the avaryan or for Beis Din, but only for the eidim (witnesses). When eidim come to testify in court, they become part of the story of the aveirah; what gives them the right to be a part of this case and testify that someone violated an aveirah? Is seeing the aveirah occur enough? Perhaps not. Thus, it is possible that hasra'ah is not only serving as a deterrent, a revelation that the act was done b'meizid, and creating the intensity of the aveirah itself, but that the witnesses who gave the hasra'ah become a major part of the story, as their hasra'ah created the qualitative nature of the aveirah.[1] Thus, their hasra'ah turns them into eidim and connects them to the story taking place, giving them the ability and responsibility to come to Beis Din to testify.

Why Wouldn’t a Rodef Require Hasra’ah? 

The question now becomes: why wouldn't a rodef require hasra'ah? According to the Rambam, this means that simply sharing a verbal warning is enough to qualify as hasra'ah, and one doesn't need to wait for the rodef to accept or acknowledge it. However, according to the simple understanding of the Gemara, that hasra'ah is not required at all in the case of rodef, how are we to explain this?

As expected, this would depend on how we understand the din of rodef:

1) Chayiv Missah

If the reason a rodef is chayiv missah is because we consider it as if he already performed the act of murder or because of the rishus ha’gavra, then we could suggest as follows:

1. Deterrent

If the purpose of hasra'ah is to create a deterrent, then this might not be applicable, since a rodef is either considered "as if he already performed the act" or the din of rodef is the rishus ha'gavra and not the actual act of murder.

2. A Requirement for Beis Din's Conviction

If hasra'ah is only a requirement so that Beis Din knows that the avaryan violated the aveirah with intent, then since Beis Din is not involved in the case of a rodef (the din of rodef is a vigilante oriented din), this would not be applicable. That is, unless we think that one who kills a rodef is acting as a shliach (representative) of Beis Din. If that were the case, we would need to explain it as follows:

Even if one who kills a rodef is acting as a shliach of Beis Din, we can say that the rules are different once the case is not going through the normal process of Beis Din.

Additionally, we can argue that killing someone is so obviously wrong that perhaps it doesn't require warning and clarification. Since everyone knows that murder is wrong, one cannot claim that they did not know it was an aveirah.

3. A Qualifying/Worsening of the Action

If hasra'ah is about creating a certain quality of aveirah that is punishable in court, then one could argue that a rodef already violates this without hasra'ah; alternatively, we could suggest that we don't need this type of qualitative act for the din of rodef.

4. A Part of "Eidus" (Testimony)

Since the rodef is not being brought to Beis Din, we do not need eidim. Thus, there would be no requirement for hasra'ah.

2) Saving the Rodef from the Aveirah

If the reason a rodef is chayiv missah is because we want to save the rodef from the aveirah of murder, then we could suggest as follows:

1. Deterrent

If the purpose of hasra'ah is to create a deterrent, then it would make perfect sense to warn the rodef, as the only reason we kill the rodef to begin with is to save him from the aveirah. As such, why wouldn’t we need to warn the rodef? We would have to suggest that the only reason not to give the rodef hasra'ah is if we are afraid that it would waste time, and that unless we acted as quickly as possible, he would end up violating the aveirah. Thus, with no time to spare, we don't have the time or leisure to warn the rodef.

2. A Requirement for Beis Din's Conviction

Again, if hasra'ah is only a requirement so that Beis Din knows that the avaryan violated the aveirah with intent, then since Beis Din is not involved in the case of a rodef (the din of rodef is a vigilante oriented din), this would not be applicable. 

3. A Qualifying/Worsening of the Action

If hasra'ah is about creating a certain quality of aveirah that is punishable in court, then one could argue that a rodef already violates this without hasra'ah; alternatively, we could suggest that we don't need this type of qualitative act for the din of rodef.

4. A Part of "Eidus" (Testimony)

Since the rodef is not being brought to Beis Din, we do not need eidim. Thus, there would be no requirement for hasra'ah.

3) Saving the Nirdaf

Regardless of which approach we take regarding the need for hasra'ah, if the entire din of killing the rodef is about saving the life of the nirdaf, then it makes sense that hasra'ah would not be required. The reason is simple: because time is of the essence and every second wasted might cost the nirdaf his life.

However, if the only reason we are allowed to kill the rodef to save the nirdaf is because of the rishus ha'gavra and the din of being chayiv missah, then perhaps we would need to use some of the above svaras to explain why hasra'ah still would not be required in the case of a rodef.

In our next article, we will continue to analyze this fascinating halachic topic.

[1] Their hasra’ah created the type of aveirah that can be seen as a direct rebellion against Hashem.