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Monday, June 13, 2016

Execution Prior to Committing the Crime M. Sanhedrin 8:7 (part 1) — #41

MISHNAH: These are [the people] whom we save at the cost of their lives: One who pursues another to kill him, or [who pursues] a male or a betrothed young woman. But one who pursues an animal, or who who desecrates shabbat, or one who worships idols — we do not save these  [people] at the cost of their lives.

(Note: Mishnah, with a capital “M,” refers to the first redaction of “Oral Torah,” was set down at the end of the second century of the Common Era, commissioned by the leader of the Jewish community, R. Yehudah ha-Nasi because he and his circle of scholars feared that the traditions would be lost if they were not written down. Mishnah is composed of a large and organized collection of oral teachings, each called a mishnah, written with a lower case “m.” Hence “mishnah"  refers to the individual teaching, and “Mishnah” to the entire compilation.)

This week we will explore a mishnah from tractate Sanhedrin, and next week we will consider a selection from the Gemara’s discussion of this mishnah. The previous mishnah and the one prior to it dealt with cases of people who could be executed prior to committing a din nefesh (capital crime)  due to expectations of what they would do in the future. M. Sanhedrin 8:5 concerns the famous case of a ben sorer u’moreh (the rebellious son) and 8:6 concerns a burglar who tunnels into a house.

In mishnah 8:7 we are told of two categories of people engaged in violating the law: Those in the first category may be preemptively killed (“save at the cost of their lives”)—before they commit the crime they are intent upon, and actively in pursuit of, committing. Those in the second category may not be killed unless and until they actually commit the crime.

A question immediately jumps to mind: When Mishnah says, “These are [the people] whom we save at the cost of their lives…”, it is clear that “their” refers to the would-be criminals, but who is the “whom” to whom Mishnah refers? In other words: Whom does preemptive killing save? The Hebrew here is ambiguous and therefore conjecture is necessary. One possibility, supported by Rambam (R. Moses Maimonides, 12th century) and R. Menachem Meiri (13th c), is that we kill the pursuer to “save” the life of the intended victim. A second possibility, proffered by Rashi (R. Shlomo Yitzhak, 11th century), is that Mishnah permits us to kill the pursuer in order to “save” him from the crime the pursuer is intent to commit. Killing the would-be criminal thereby “saves” him from the guilt and sin of committing a din nefesh, which would result in his execution and severe consequences for the world-to-come.

Let us turn to examine and compare the content of the two categories, which in turn will shed light on the question: Who is saved? In the first category (pre-emptive killing) we have one who pursues another in order commit murder, or someone who pursues either a male or a female with the intent to rape. In the second category are people who commit bestiality, desecrate the sabbath, and worship idols. As unpleasant as it is to consider much of this, there is a significant difference between the two categories: In the first category, the crime, if not prevented, would kill  or deeply wound and humiliate the victim. The second category includes prohibitions for which Torah stipulates punishment by karet (communal expulsion) or execution, but these are victimless crimes (from a human standpoint). Rashi’s understanding of who is saved can be understand in light of this distinction. For him, Mishnah permits killing the would-be criminal to save the intended victim from death, or from becoming the victim of a painful and humiliating violation, but he holds that Mishnah does not permit preemptively killing someone whose crime will not harm another human being.

The discussion in the Gemara will address a question that naturally arises: May one simply take it upon themselves to kill another person they believe about to commit murder or rape? No, the Rabbis will say, there are several other steps that must be taken, beginning with issuing a warning in the hope of interrupting the commission of the crime. Tune in next week.


  1. Do you agree with Rashi or Rambam concerning who the mishnah believes is “saved” by proactively killing someone who intends to commit a capital crime? Why?
  2. Exodus 22:16-17 and Deuteronomy 22:28-29 do not consider rape of an unmarried woman a din nefesh (punishable by execution). Deuteronomy goes on to say, “But if the man comes upon the betrothed girl in the open country, and the man lies with her by force, only the man who lay with her shall die, but you shall do nothing to the girl. The girl did not incur the death penalty, for this case is like that of a man attacking another and murdering him.” (Dt. 22:25-26). Does the distinction between the unmarried woman and the betrothed (effectively, married) woman who is raped have validity in your mind?
  3. The recent case of the Stanford University student who was sentenced to six months for rape has stirred up strong feelings. Does this mishnah influence your thinking about that case?

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