Preemptive Killing — BT Sanhedrin 73a (part 2) — #42

The Rabbis taught [in a baraita]: Whence do we know that if someone pursues another to kill him [the one pursued] should be saved at the cost of the [pursuer’s] life? Scripture teaches: Do not stand idly by the blood of your neighbor (Leviticus 19:16). 

 But does [the verse] teach this? We need this [Leviticus 19:16] for what was taught [in a baraita]: Whence do we know that if one sees his fellow drowning in a river, or a wild beast mauling him, or bandits coming upon him, that he is obligated to save him? Scripture teaches: Do not stand idly by the blood of your neighbor. Indeed, this is so.

But whence is it given that one should be saved at the cost of [the pursuer’s] life? From a kal va’chomer from [the case of] a betrothed woman: If Torah says that if the [pursuer] comes only to harm her [but not to kill her], she should be saved at the cost of [the pursuer’s] life, then if one pursues another in order to kill him, how much more so!

INTRODUCTION

Last week, we examined Mishnah Sanhedrin 8:7, which stipulates that one may preemptively kill a person who is in pursuit of another with the intent to kill or rape. This is called the din rodef (the law of the pursuer). It is the backbone for the halakhic right of self-defense, but it goes  further: On daf 72a, in a discussion concerning a thief who breaks into someone’s house, the Rabbis expound on the principle, “The Torah says that if he comes to kill you, you should kill him first.” But does the right to defend oneself extend to defending others? The Talmud says yes, it is not only permissible, but obligatory. Yet the idea that it is appropriate to kill someone who is pursuing another to kill him, but has not yet committed a crime, is not at all obvious, and many people find it disturbing. Gemara reasonably asks: How does Mishnah know this is permissible?

COMMENTARY

The Gemara opens with a baraita (oral teaching from the period of the Mishnah) that asks for a Scriptural source for the mishnah’s claim that if we see someone in pursuit of another with the intent to kill, we are obligated (if we can) to kill the pursuer before he can commit murder. Offering Leviticus 19:16 as a proof text; the baraita reads it, Do not stand idly by the blood of your neighbor, as saying that if you fail to intervene to prevent a murder, you are guilty of standing idly while another bleeds. The obligation to prevent an innocent person from “bleeding” is so great that one must even preemptively kill the attacker.

The Gemara questions the baraita’s interpretation of Leviticus 19:16 because it knows another baraita that uses the very same verse to teach a different legal obligation. Generally, the Rabbis understand each verse to teach one and only one law. In this case, Leviticus 19:16 has already been “claimed” to teach us to save the lives of people who are in mortal danger. This second baraita provides three examples of life-threatening situations: drowning in a river, being mauled by a wild beast, and being attacked by highway robbers. Such cases compel us to “not stand idly by” while another person faces mortal danger; we must do what we can to save the endangered person’s life. The Gemara affirms this second baraita’s application of the verse to life-threatening situations as correct.

Where does that leave us? Without a proof text for the Mishnah’s contention that one is obligated to kill the pursuer before the pursuer commits murder. The Gemara finds a clever work-around using an hermeneutical (interpretive) technique called a kal va’chomer, which is a logical a fortiori argument, also known as an argument from minor to major (or vice versa), or more colloquially as an “all the more so” argument. A common example of a kal va’chomer: If a certain behavior is prohibited on a festival, then it is certainly prohibited on shabbat, because shabbat is on a higher level of holiness than a festival. An example from everyday life: If Robin becomes annoyed with Pat because Pat arrives 15 minutes late for a lunch appointment after calling, it will certainly be the case that Robin will be annoyed if Pat arrives a half hour late without calling. The Rabbis apply the principle of kal va’chomer to the mishnah’s claim about preemptive killing by referencing Mishnah’s law concerning a man who pursues a betrothed woman to rape her. (We discussed this Mishnah in the previous edition of TMT #41.) If Mishnah (which the Gemara terms “Torah” because it is Oral Torah) would have us kill the would-be rapist, whose act would harm the woman but not kill her, then certainly Torah would have us kill the would-be murderer before he kills his victim.

QUESTIONS TO CONSIDER AND DISCUSS

1. The Rabbis are struggling to find biblical grounding for the din rodef, yet in the end, they use the same mishnah that expounded the din rodef. How does this strike you?
2. Is it possible to compare rape and murder and say which is “worse?” What happens when we try to compare one person’s suffering with another’s? Tosafot, a medieval commentary written by Rashi’s sons-in-law and grandsons, raises an objection to the kal va’chomer  reasoning here on surprising grounds: rape is biblically punishable by stoning (considered the most severe execution) while murder is punishable by beheading (a less severe form of execution from the perspective of the Torah). Hence the argument “all the more so” applied to murder from rape is not legitimate. But then Tosafot say that the relative severity of the crimes as deduced from the relative severity of the punishments is not what matters. Rather, both rape and murder cause grievous, irreparable harm to their victims.
3. Israeli Prime Minister Yitzhak Rabin was murdered by an extremist who claimed to be acting in fulfillment of the law of din rodef (see here). Does that make you think the law is reasonable or too dangerous?