The Status of a Fetus in Halacha: What is the Definition of Life? (Part 11)

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:

8. Kim Leh B'Dirabah Minei

The Gemara (Sanhedrin 74a) states that if a rodef damages property while he is trying to kill the nirdaf, the rodef is not chayiv to pay back the cost of the damage, because “mischayiv b'nafsho hu - he is liable to be killed.”

The exact lashon of the Gemara is as follows:

תלמוד בבלי מסכת סנהדרין דף עד עמוד א

דאמר רבא רודף שהיה רודף אחר חבירו ושיבר את הכלים בין של נרדף ובין של כל אדם פטור מאי טעמא מתחייב בנפשו הוא

As Rava says: If a pursuer was pursuing another to kill him, and during the course of the chase the pursuer broke vessels belonging either to the person being pursued or to anyone else, he is exempt from paying for the broken vessels. What is the reason for this? The reason is that he is liable to be killed.

Why should the fact that the rodef is liable to be killed during his act of attempted murder affect whether or not he is chayiv to pay back the monetary damage he caused? It appears as though the Gemara is referring to the concept of Kim Leh B'Dirabah Minei, the legal concept which states that when one is chayiv for two onshim (punishments), they only receive the worse of the two.

However, there are several things that we need to clarify:

1. How and why does Kim Leh B'Dirabah Minei work?[1]

2. Should the principle of does Kim Leh B'Dirabah Minei apply in the case of a rodef?

• Kim Leh B'Dirabah Minei assumes that the perpetrator is chayiv for the worse punishment; but by the case of rodef, is the rodef chayiv for anything to make him pattur from the chiyuv of paying of money? The Gemara says mischayiv b'nafsho hu - he is liable to be killed. While this is true, is the rodef "allowed to be killed" or is he "chayiv missah"? As we will soon show, this could make a huge difference.

Let us start by trying to understand the concept of Kim Leh B'Dirabah Minei and how the Rishonim approach this halachic concept:

The Different Ways to Understand Kim Leh B'Dirabah Minei

1. Beis Din Can only Be Michayiv One Onesh

On the most basic level, the din of Kim Leh B'Dirabah Minei can be seen as a technical din of Beis Din. It is possible that in any given case, Beis Din only has the ability to give the assailant one onesh (punishment/consequence). Thus, on a fundamental level, both onshim are really there; but on a practical level, Beis Din will only give out one of these two onshim – the more severe one.

2. Beis Din Can only DEFINE the Action in one way

On a more fundamental level, it is possible that Beis Din has to define the action (ma’asah aveirah) in a single way. Thus, Beis Din has to choose whether to define the act as an act deserving the death penalty or an act deserving a monetary payment. As such, the principle of Kim Leh B'Dirabah Minei means that Beis Din should always choos to define the act as the more chamur aveirah (or action), to help the avaryan get the biggest kaparah (atonement).

3. The More Severe Onesh Knocks out the More Kal Onesh

If we introduce the concept of bittul (nullification), it is possible that the more chamur chiyuv is mivatel (knocks out) the lesser chiyuv. Thus, of Kim Leh B'Dirabah Minei means that the more chamur chiyuv is the only one that remains, because it knocks out the lesser chiyuv.

4. The More Chamur (Severe) Onesh is Mikayim (Includes) Both Onshim

It is also possible that when Beis Din gives the assailent the more severe onesh, it is as if he is also receiving the lesser onesh as well. In other words, on a conceptual level, the lighter punishment is included in the more severe punishment.

Applying this the Din of Rodef

The Gemara seems to imply that the din of Kim Leh B'Dirabah Minei applies to a rodef who damages property while trying to kill someone. However, this seems strange for a few reasons:

1. Is the rodef chayiv missah while he is trying to kill the nirdaf?
2. Even if the rodef is chayiv missah, does this status carry over afterwards, when he is no longer has the status of a rodef? (For example, what if the rodef failed to kill the nirdaf? Alternatively, if the nirdaf or a third-party-bystander killed the rodef in order to save the nirdaf, would the rodef's progeny be chayiv to pay for the damages?)

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

1) Chiyuv Missah

If the rodef receives a din of being chayiv missah – either because we consider it as if he already killed the nirdaf, or because the rishus ha'gavra is enough to create a din of chiyuv missah – then the application of  Kim Leh B'Dirabah Minei makes sense.

And if Kim Leh B'Dirabah Minei applies while the chiyuv for the monetary damage was being created, then we could understand why it would apply afterwards, even when the rodef no longer has the status of rodef – because while the chiyuv missah was being created,  Kim Leh Bi'Dirabah Minei would be applied to the chiyuv mamon, and would therefore either knocked it out, affect it, or redefine it (as we discussed above, regarding the different ways of understanding Kim Leh B'Dirabah Minei).

2) Saving the Rodef from the Aveirah

However, if the din of killing a rodef is to save the rodef from the aveirah, then applying Kim Leh B'Dirabah Minei would seem quite difficult and a bit of stretch. We would have to save that from a halachic perspective, we consider it "as if there is a din missah on the rodef." While this din missah is what allows us to kill the rodef, it would also activate the principle Kim Leh B'Dirabah Minei. In other words, it is not that the rodef is "chayiv missah," because he didn't violate the aveirah yet; rather, it is that his act creates a "din missah," and that din missah is enough to activate the principle of Kim Leh B'Dirabah Minei.

3) Hatzalas Ha'Nirdaf

Similarly, if the din of killing a rodef is only because we are trying to save the nirdaf, applying Kim Leh B'Dirabah Minei would be more difficult to explain. We would therefore have to suggest a similar approach to the one above, and assume that once we are trying to save the life of the nirdaf with the life of rodef, a "din missah" is placed on the rodef.

Alternatively, as we previously suggested, it could be that the only reason we are allowed to kill the rodef in order to save the nirdaf is because the rodef has engaged in an act of rishus and has thus forfeited his right to life. As such, this din missah would not only be enough to allow us to kill the rodef, but also be enough to activate the principle of Kim Leh B'Dirabah Minei – even though this is not the same as a normal chiyuv missah which one would only receive for having actually killed the nirdaf.

9. Why Doesn't the Din of Rodef Need to be Performed in Beis Din?

There is a rule in Halacha[2] that all Dinei Nefashos (cases of life and death) need to be performed in front of a Beis Din of 23 judges.[3] If so, then how does the din of rodef get off the ground in the first place?

As always, answering this question will depend on how we understand the din of rodef:

1) Chiyuv Missah

If the rodef receives a din of chiyuv missah, then it is possible that the person who kills the rodef would become a shliach of Beis Din to carry out the din. The Mei'ri[4] states that the din of rodef is a special din which was given over to the people of Klal Yisrael: through this special mechanism of shlichus, any member of Klal Yisrael can enforce the chiyuv missah and kill the rodef.

It is also possible that the din of rodef is a unique form of chiyuv missah which does not require a Beis Din; thus, we would not need the mechanism of shlichus to explain how it could be done outside of Beis Din, as this is a unique din.

2) Saving the Rodef from the Aveirah

If the din of killing a rodef is to save the rodef from the aveirah, then since this is just about the aveirah and not a din in misas Beis Din, there would be no issue.

3) Hatzalas Ha'Nirdaf

If the din of killing a rodef is to save the life of the nirdaf, then again, since this is not a din in misas Beis Din, there would be no issue here as well.

Is There a Difference Between the Nirdaf and a Third-Party Bystander?

When it comes to the din of rodef, there may be several important distinctions between how the nirdaf himself should respond and how an onlooking bystander should respond:

While a bystander might be able to assess the situation a bit more carefully and make a slightly more calculated decision, this might not be the case for the actual nirdaf. Since the nirdaf’s own life is at stake, and a single wrong move might cost him his life, Hashem might not require the nirdaf to take the same level of precaution when responding to the rodef.

Furthermore, while a bystander might only know a small part of the story, and thus not be able to assess the situation with a high level of clarity, the nirdaf might know more of the “whole story,” and therefore have a greater sense of clarity regarding the degree of danger that he is actually in. Thus, while a bystander might be required to go through certain precautions and procedures when approaching this situation, even given its delicate and time-sensitive nature, a nirdaf might not have these same requirements.

As such, it is possible that several leniencies might apply for the nirdaf but not for a third-party bystander:

1. Maiming vs. Killing

According to some Achronim,[5] the requirement to “first maim the rodef and only kill him as a last resort” only applies to a third-party bystander. Thus, when it comes to the nirdaf himself, he does not need to initially try to maim the rodef.

The svara is as follows: since the nirdaf’s own life is at stake, he can do whatever it takes to save his life, and there is no requirement for him to be cautious or hesitant to act. (After all, one wrong move might cost him his life.)

2. Safek vs. Vadai

Even if a bystander would need to be certain that the rodef was going to be able to kill the nirdaf in order to warrant the killing of the rodef, a nirdaf might be able to kill the rodef even in a case of a safek.

3. Requiring Hasra'ah

According to some shitos,[6] even if a rodef does require hasra'ah, this would only be required from a third-party bystander. However, when it comes to the nirdaf himself, they would not require the nirdaf to give the rodef hasra'ah before acting.

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

[1] See Bava Metzia 91a. See also Rashi and Mei’ri there.

[2] Mishnah, Sanhedrin 1:1.

[3] There are other restrictions as well. Some rishonim hold that that Dinei Nefashos can only be performed in Eretz Yisrael (Chinuch 47). The Rambam (Sefer Ha'Mitzvos, Mitzvah 176) holds that it could only be performed while the Beis Ha'Mikdash was still standing. Furthermore, the Ritva (Makkos 7a) holds that it can only be performed when the Sanhedrin Ha'Gedoldah is present in the Lishkas Ha'Gazis, based on the svara that there needs to be a physical anchor for the system of Din within the Beis Ha'Mikdash in order for Din to transpire outside of the area of the Mikdash.

[4] Sanhedrin 73a.

[5] Mishneh L'Melech.

[6] Rivash.