Injury to Bystanders and the Meaning of "יהיה אסון"/1/en

Injury to Bystanders and the Meaning of "וְלֹא יִהְיֶה אָסוֹן"

Introduction

This topic has not yet undergone editorial review

A Brawl, Bystander, and Baby

Bereshit 21:22-23 describes a scenario in which two men fight with one another and strike a pregnant bystander in the course of their skirmish.  This subdivides into two possible cases – either no tragedy occurs ("וְלֹא יִהְיֶה אָסוֹן") or a tragedy does occur ("וְאִם אָסוֹן יִהְיֶה") :

EN/HEע/E

(כב) וְכִי יִנָּצוּ אֲנָשִׁים וְנָגְפוּ אִשָּׁה הָרָה וְיָצְאוּ יְלָדֶיהָ וְלֹא יִהְיֶה אָסוֹן עָנוֹשׁ יֵעָנֵשׁ כַּאֲשֶׁר יָשִׁית עָלָיו בַּעַל הָאִשָּׁה וְנָתַן בִּפְלִלִים.

(כג) וְאִם אָסוֹן יִהְיֶה וְנָתַתָּה נֶפֶשׁ תַּחַת נָפֶשׁ.

(22) And if men strive together, and hurt a woman with child, so that her fruit depart, and yet no harm follow, he shall be surely fined, according as the woman's husband shall lay upon him; and he shall pay as the judges determine. (23) But if any harm follow, then thou shalt give life for life.

The verses abound with difficult and ambiguous terms, leaving both the two situations described and the accompanying legal principles rulings open to multiple interpretations:

• "וְנָגְפוּ אִשָּׁה הָרָה" – Was the the blow to the woman accidental, originally intended for one of the combatants, or was it intentionally aimed at her?  Additionally, was she directly struck or did one of the men who was struck collide into her?
• "וְיָצְאוּ יְלָדֶיהָ" – This phrase is not found elsewhere in Tanakh.  Does it refer to a miscarriage, or only to a premature birth?
• "וְלֹא יִהְיֶה אָסוֹן" – What does the word "אָסוֹן" mean?  This word appears in only two contexts (here and in Bereshit 42-44), making its precise definition difficult to ascertain.  Though it clearly refers to a negative consequence, does the term include only death or also other types of harm or injury?  Moreover, to which of the characters is there no "אָסוֹן" – the fighting men, the woman, or the fetus?
• "כַּאֲשֶׁר יָשִׁית עָלָיו בַּעַל הָאִשָּׁה" – This verse suggests that, in the first scenario described (when there is no "אָסוֹן"), the husband sets the terms of the monetary fine.  Why is it his decision, and how does this relate to the following clause, "וְנָתַן בִּפְלִלִים" which suggests that the courts play a role?
• "וְאִם אָסוֹן יִהְיֶה" – Is the subject of the "אָסוֹן" in this verse the same as in the previous verse?  What action incurs the punishment of "וְנָתַתָּה נֶפֶשׁ תַּחַת נָפֶשׁ", that the assailant must "give a soul for a soul"?

The Status of a Fetus

What does the above case say about the status of the fetus?  Is it considered its own independent being, so that harming it incurs the same penalties as would injuring anyone else? Or, is it considered only part of the mother, leading to lesser culpability?  If the fetus is killed, is it a capital offense, or is the culprit only liable for a monetary fine? The answers to these questions depends heavily on how one resolves the textual issues above and whether or not the fetus is the subject of the words "אָסוֹן".

"Intended to Kill One But Killed Another"

The Torah distinguishes between several types of murder, giving different legal rulings for a premeditated, intentional killing and and inadvertent one.  Where on the spectrum does case in which one intends to kill a certain person, but accidentally kills another in his stead, fall?  In such a case is the culprit liable for the death penalty as there was a certain level of intent, or is this closer to a  case of accidental manslaughter, as the dead person was not actively targeted?  What does the case described here, where a pregnant bystander is killed, teach about the law?