The Status of a Fetus in Halacha: What is the Definition of Life? (Part 9)

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:

 4. Killing the Rodef with Sayif (execution by the sword)

The Mishnah (Sanhedrin 9:1) states that a murder receives his death penalty via Sayif (execution via sword).

The Ran[1], as well as the Mei'ri, suggest that when one is trying to kill a rodef, they should try their best to kill him through Sayif, as this is the correct missah that he deserves. However, the Ran continues to say that if this is not possible, you can kill the rodef with any other means possible in order to save the nirdaf.

At first glance, it appears as if the Ran is taking the opinion that a rodef is chayiv missah because it is as if he already performed the act of the murder. After all, why else would he think you need to execute the rodef with the specific missah one receives for having already performed a murder?

However, the actual wording of the Ran is that a "stam missah" (standard death penalty) is performed through sayif; thus, one could argue that even if the reason we kill the rodef is either to prevent the rodef from violating the aveirah of murder or to save the nirdaf (or as a "din rishus ha'gavrah" and a punishment for the attempted murder), this would still qualify as a standard "stam chiyuv missah" and would therefore require sayif as the ideal mechanism of carrying it out.

 5. Treifa

The Halacha is that if one kills a treifa (loosely defined as one who will die within the upcoming year because of a physical problem), they are not chayiv missah. There are several possible reasons for this:

1. It is not considered murder.
2. It is considered murder, but it is a less severe (chamur) form of murder (since they were going to die anyways).

Thus, the question becomes as follows: if a rodef is attempting to kill a treifa, would we allowed to kill the rodef in order to save the treifa?

One can likely argue both ways, regardless of how we understand the sugya of rodef:

No: The Din of Rodef Does Not Apply

1) Chayiv Missah

If the reason we can kill a rodef is that the rodef is chayiv missah because we view it as if he already performed the act of murder, then a person is not chayiv missah for killing a treifa; as such, the rodef would not be chayiv missah.

And if the heter to kill a rodef is a din in rishus ha'gavra, this might not apply when the actual aveirah is not as severe.

2) Saving the Rodef from the Aveirah

If the din of rodef is to save rodef from the aveirah of murder, perhaps there is no aveirah of murder by a treifah; and even if there is an aveirah of retzichah, perhaps it is still only a less severe form of the issur, and thus is wouldn't satisfy the requirement needed in order to allow us to kill a rodef.

3) Saving the Nirdaf

If the din of rodef is saving the life of the nirdaf, perhaps a treifa is not deemed enough of a life to allow us to kill a rodef. (Perhaps only a “full life” warrants the heter to kill a rodef in order to save a nirdaf.)

Yes: The Din of Rodef Does Apply

1) Chayiv Missah

It would be very unlikely that this din applies if the din of rodef is that we view it as if he already performed the act of murder. However, if the din is rishus ha'gavra and we kill him for attempting to murder, we might be able to suggest that as long as there is an evil act being done, even if it is not the type of act that would normally warrant a chiyuv missah, it might satisfy the requirement of the din rodef.

2) Saving the Rodef from the Aveirah

It is possible that as long as there is a aveirah of murder being committed, this might be enough to qualify as a din rodef; even if the murder is not severe enough to warrant a chiyuv missah.

3) Saving the Nirdaf

There is still a chiyuv to save the life of a treifa. The question, however, is whether the life of a treifa is enough of a “life” to justify the unique din of killing a rodef in order to save the nirdaf. Thus, the more we value every second of life, the more likely we are to suggest that the normal din of hatzalas ha'nirdaf can apply to a treifa as well.

6. Katan (Under the Age of 13)

The Gemara (Sanhedri 72b) states that a katan (minor) can be considered a rodef, just like a gadol.

תלמוד בבלי מסכת סנהדרין דף עב עמוד ב

קטן הרודף ניתן להצילו בנפשו

If a minor was pursuing another person in order to kill him, the pursued party may be saved with the pursuer’s life.

The question arises: a katan is not chayiv missah if he kills someone. As such, how does this fit in with our analysis of the din of rodef?

The main question to address is why a katan is not chayiv missah for killing someone. Assumedly, it is because he does not have the required level of da'as (intellectual awareness) to create the type of ma’asah aveirah necessary to receive the death penalty. Thus, when it comes to the din of rodef, we would either need to say that da'as in not required to qualify as a rodef, or that even a katan has enough da'as to qualify as a rodef.[2]

Let us analyze this in greater depth and see how this fits into our previous discussion of the din of rodef:

1) Chayiv Missah

Rashi[3] suggests that there is a special din by rodef where we consider the katan to be as if he is a gadol. Thus, while the katan is involved in the act of redifus (pursuit), and he still has the status of a rodef, he would have the din missah on him. However, in Beis Din (a court of law), a katan would not be chayiv missah for murder.

The main questions to address are:

1. Why is a katan is not chayiv missah for killing someone?
2. What changes by the din of rodef?

Assumedly, a katan is not chayiv missah for killing someone because he does not have the required level of da'as (intellectual awareness). Thus, when it comes to the din of rodef, we would either need to say that:

1. Da'as in not required by a rodef. (Rodef is a special din/category) One explanation for this is to suggest that a katan who kills someone still violates the issur of murder, but the pittur in Beis Din is only from the onesh (punishment/consequence) in Beis Din (of being chayiv missah), not from violating the aveirah itself. Thus, for the din of rodef, we consider it as if he already performed the murder, and this would be enough of a din missah to allow us to kill the rodef, even though it wouldn't allow us to convict the katan in court.
2. Even a katan has enough da'as to qualify as a rodef; by engaging in this type of act, the katan shows that he has at least some form of da'as. However, in a court of law, we require a higher level of da'as in order to convict someone.[4]

2) Saving the Rodef from the Aveirah

Again, if we take Rashi's approach that we treat the katan like a gadol while he has the status of a rodef, then the katan would be violating the issur of murder if he succeeded in his act, even if he wouldn't be convicted in Beis Din for it.

And even without Rashi's chiddush, just because a katan is not chayiv missah in Beis Din when he commits an act of murder does not necessarily mean that he doesn't violate the issur or retzichah when committing murder. Thus, in general, there could be a pittur from onesh by a katan without escaping the actual aveirah of retzichah. If that is the case, then to save the katan from violating the aveirah of murder, we would be able to implelent the din of rodef and take his life.

However, if a katan doesn't even violate the issur of retzichah when he kills someone (since a katan doesn’t have da'as – or least not the same level of da'as as a gadol), then this would not justify killing the katan. And even if the issur is less severe than the normal issur of retzichah, this might also would not justify killing the katan, since the aveirah is less severe, and the normal din of rodef might therefore not apply.

3) Saving the Nirdaf

If the din of rodef is about saving the nirdaf, then would be the easiest approach to explain: even if a katan is not chayiv missah for killing someone, there would still be a chiyuv to save the life of the nirdaf. Thus, this would be easy to explain, as the din should not change whether the rodef is a katan or a gadol.

However, if the only reason we allow one to "kill the rodef to save the nirdaf" is because of the rishus ha’gavra of the rodef and the fact that he is engaged in an evil act of attempted murder (and perhaps this itself creates the chiyuv missah on the rodef), then this might not be as applicable by a katan, since he might not have da'as (or at least not the same level of da'as as a gadol).

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

[1] חידושי הר"ן מסכת סנהדרין דף עב עמוד א 

מתניתין הבא במחתרת נידון על שם סופו. איידי דתנא דבן סורר ומורה נידון על שם סופו תנא הבא במחתרת נידון על שם סופו אף על גב דדיניה דבא במחתרת נידון כהלכתו בסייף בסתם מיתה אלא דאם אינו יכול להמיתו בסייף יכול להמיתו באיזה מיתה שירצה וכדאיתא בגמרא. ואיידי דקתני בא במחתרת דהוי חיובו משום רודף ומצילין אותו בנפשו תנא ואלו שמצילין אותן בנפשם ובתר האי פירקא הדר למידריה ותני ואלו הן הנשרפין

[2] If the latter is the case, then we would need to say that in a court of law, we require a higher level of da'as in order to convict someone of being chayiv missah for murder.

[3] רש"י מסכת סנהדרין דף עב עמוד ב

ניתן להצילו בנפשו - כדילפינן לקמן (סנהדרין דף עג.) רוצח ניתן להצילו בנפשו והאי אע"ג דקטן הוא ולאו בר קבולי התראה הוא לגבי רדיפה דינו כגדול

[4] A third option is that a katan gains the full status of a bar da'as while he is still a rodef, but the moment the act of redifus ends, he reverts back to being a katan and loses this status. Thus, only while in the act of being a rodef can we kill the katan, because only while still in the act itself does he have the status of a bar da'as.