Difference between revisions of "Injury to Bystanders and the Meaning of "יהיה אסון"/2"
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<category>Fetus | <category>Fetus | ||
− | <p>If even only the fetus suffers an "אָסוֹן", then the assailant is culpable and must pay a "soul for a soul". This position subdivides regarding how it understands the inverse case, when there is no "אָסוֹן":</p> | + | <p>A fetus is considered an independent being so one who kills incurs teh same punishment as he ould for killing an adult. If even only the fetus suffers an "אָסוֹן", then the assailant is culpable and must pay a "soul for a soul".  This position subdivides regarding how it understands the inverse case, when there is no "אָסוֹן":</p> |
<opinion>Fetus Survived | <opinion>Fetus Survived | ||
<p>The first scenario describes an incident in which neither the pregnant woman nor her child suffer an "אָסוֹן", and the baby is born live.</p> | <p>The first scenario describes an incident in which neither the pregnant woman nor her child suffer an "אָסוֹן", and the baby is born live.</p> | ||
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</opinion> | </opinion> | ||
<opinion>Fetus Was Not Fully Formed | <opinion>Fetus Was Not Fully Formed | ||
− | <p>The first scenario speaks of a case in which a fetus who is not fully formed | + | <p>The first scenario speaks of a case in which a blow to the mother causes her to miscarry a fetus who is not fully formed.</p> |
<mekorot><multilink><a href="SeptuagintShemot21-22-23" data-aht="source">Septuagint</a><a href="SeptuagintShemot21-22-23" data-aht="source">Shemot 21:22-23</a><a href="Septuagint" data-aht="parshan">About the Septuagint</a></multilink>, <multilink><a href="PhiloOnSpecialLaws3-108-109" data-aht="source">Philo</a><a href="PhiloOnSpecialLaws3-86-87" data-aht="source">On Special Laws 3:86-87</a><a href="PhiloOnSpecialLaws3-108-109" data-aht="source">On Special Laws 3:108-109</a><a href="Philoonspeciallaws3-117-118" data-aht="source">on special laws 3:117-118</a><a href="Philo" data-aht="parshan">About Philo</a></multilink></mekorot> | <mekorot><multilink><a href="SeptuagintShemot21-22-23" data-aht="source">Septuagint</a><a href="SeptuagintShemot21-22-23" data-aht="source">Shemot 21:22-23</a><a href="Septuagint" data-aht="parshan">About the Septuagint</a></multilink>, <multilink><a href="PhiloOnSpecialLaws3-108-109" data-aht="source">Philo</a><a href="PhiloOnSpecialLaws3-86-87" data-aht="source">On Special Laws 3:86-87</a><a href="PhiloOnSpecialLaws3-108-109" data-aht="source">On Special Laws 3:108-109</a><a href="Philoonspeciallaws3-117-118" data-aht="source">on special laws 3:117-118</a><a href="Philo" data-aht="parshan">About Philo</a></multilink></mekorot> | ||
<point><b>The case – "וְכִי יִנָּצוּ אֲנָשִׁים וְנָגְפוּ אִשָּׁה הָרָה"</b><ul> | <point><b>The case – "וְכִי יִנָּצוּ אֲנָשִׁים וְנָגְפוּ אִשָּׁה הָרָה"</b><ul> | ||
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</ul></point> | </ul></point> | ||
<point><b>"וְיָצְאוּ יְלָדֶיהָ"</b> – These sources understand this to mean that the woman miscarried her infant.</point> | <point><b>"וְיָצְאוּ יְלָדֶיהָ"</b> – These sources understand this to mean that the woman miscarried her infant.</point> | ||
− | <point><b>Definition of "אָסוֹן"</b> – It is unclear how these sources would translate the word as they only give a general interpretation of the verse,<fn>Some have suggested that the Septuagint is working off a different version of the Hebrew text.  See S. Isser, Two Traditions: The Laws of Exodus 21:22-23 Revisited, CBQ 52: 30-45.</fn> explaining how the culpability relates to the degree to which the baby is formed or unformed when it was aborted.<fn><sup id="reffn7" class="fnRef mceNonEditable"><a href="#fn7" class="ahtNonEditable">7</a></sup></fn> Since they maintain that according to both scenarios the infant died, they would have to ascribe a different definition to the word.  They could | + | <point><b>Definition of "אָסוֹן"</b> – It is unclear how these sources would translate the word as they only give a general interpretation of the verse,<fn>Some have suggested that the Septuagint is working off a different version of the Hebrew text.  See S. Isser, Two Traditions: The Laws of Exodus 21:22-23 Revisited, CBQ 52: 30-45.</fn> explaining how the culpability relates to the degree to which the baby is formed or unformed when it was aborted.<fn><sup id="reffn7" class="fnRef mceNonEditable"><a href="#fn7" class="ahtNonEditable">7</a></sup></fn> Since they maintain that according to both scenarios the infant died, they would have to ascribe a different definition to the word.  They could explain it to mean tragedy,<fn>In Bereshit 42 and 44, the Septuagint translates the word as sickness, but it would be hard to apply that specific definition here.</fn> and the verse would be saying that when the fetus is as of yet unformed, and thus there is no tragedy, there is only a fine, but when it is fully formed and there is a tragedy, then the act is considered a capital crime.</point> |
<point><b>Relationship between the phrases "וְיָצְאוּ יְלָדֶיהָ" and "וְלֹא/ יִהְיֶה אָסוֹן"</b> – These sources read the term "וְיָצְאוּ יְלָדֶיהָ" as a heading which then subdivides into two potential scenarios regarding the stillbirth: either the fetus was not yet formed, or it was fully formed.</point> | <point><b>Relationship between the phrases "וְיָצְאוּ יְלָדֶיהָ" and "וְלֹא/ יִהְיֶה אָסוֹן"</b> – These sources read the term "וְיָצְאוּ יְלָדֶיהָ" as a heading which then subdivides into two potential scenarios regarding the stillbirth: either the fetus was not yet formed, or it was fully formed.</point> | ||
<point><b>Status of unborn fetus</b> – These sources distinguish the status of a fully fashioned fetus from one which is still unformed.  Killing the former is a capital offense, as Philo explains "for such a creature as that is a man". Once the baby is formed it has full human status.<fn><sup id="reffn8" class="fnRef mceNonEditable"><a href="#fn8" class="ahtNonEditable">8</a></sup></fn></point> | <point><b>Status of unborn fetus</b> – These sources distinguish the status of a fully fashioned fetus from one which is still unformed.  Killing the former is a capital offense, as Philo explains "for such a creature as that is a man". Once the baby is formed it has full human status.<fn><sup id="reffn8" class="fnRef mceNonEditable"><a href="#fn8" class="ahtNonEditable">8</a></sup></fn></point> |
Version as of 15:11, 4 February 2016
Injury to Bystanders and the Meaning of "וְלֹא יִהְיֶה אָסוֹן"
Exegetical Approaches
Fetus
A fetus is considered an independent being so one who kills incurs teh same punishment as he ould for killing an adult. If even only the fetus suffers an "אָסוֹן", then the assailant is culpable and must pay a "soul for a soul". This position subdivides regarding how it understands the inverse case, when there is no "אָסוֹן":
Fetus Survived
The first scenario describes an incident in which neither the pregnant woman nor her child suffer an "אָסוֹן", and the baby is born live.
- Death – Y. Hadassi the Karaite and Cassuto understand "אָסוֹן" to refer to death.1 The Torah teaches that if despite the early delivery, neither the mother nor her child die, the assailant only pays a monetary fine. However, if either mother or child dies, he pays a "soul for a soul". According to this read, it is not clear why the Torah then continues with a list of penalties for other bodily injuries (an "eye for an eye" etc.) which are unrelated to the case at hand.
- Injury – Alternatively, it is possible that "אָסוֹן" refers to any injury2 and the Torah is contrasting a case in which neither mother nor child suffered any physical harm from the accidental strike, with a case in which any damage, from loss of a tooth to death, occurred. As such, it is obvious why the Torah does not suffice with mentioning the penalty of "soul for soul" but continues with an "eye for an eye", accounting for a variety of potential injuries.
- Death – The Karaites understand "and you shall give a soul for a soul" literally and punish this crime with death. Apparently, although there is an unintentional aspect to the act, since there is still both intent to kill and a death, the perpetrator is considered no different than any other intentional murderer.
- Monetary fine – Cassuto, in contrast, asserts that the phrase "a soul for a soul" (like the term "an eye for an eye" and those that follow) should not be taken literally and merely means that one must pay the value of the life lost.6 It is possible that he thinks that since the woman was not the target of the strike, the killer should not be viewed with the same severity as a full murderer.7 Alternatively he might maintain that to begin with the fighting men had not been hitting with intent to kill, in which case even if they hit their target they might not be fully culpable and this is not a case of נתכוון להרוג את זה והרג את זה at all.
Fetus Was Not Fully Formed
The first scenario speaks of a case in which a blow to the mother causes her to miscarry a fetus who is not fully formed.
- Unintended target – The Septuagint apparently understands that that the man accidentally hit the woman instead of his foe.
- Intended target – Philo, in contrast, assumes that the assailant attacked the pregnant woman intentionally.8
- "אֹתוֹ וְאֶת בְּנוֹ" – According to Philo, this verse prohibits killing and sacrificing a pregnant animal, since here, too, the Torah views "the animals which are still in the womb as equal to what has just been born". Philo explains that for this reason, too, if a pregnant woman is deserving of capital punishment, one may not execute her until after she gives birth.
- שֹׁפֵךְ דַּם הָאָדָם בָּאָדָם דָּמוֹ יִשָּׁפֵךְ
- According to the Septuagint, this law teaches that one who meant to kill one person but killed another is fully culpable. The fact that the woman missed his intended target does not diminish his guilt and he must give a "soul for a soul".
- According to Philo who assumes that the pregnant woman was struck intentionally, the verse is not speaking of such a case at all, allowing for the possibility that killing an unintended target is not a capital crime.13
Woman
Only when an "אָסוֹן" befalls the pregnant woman and she dies, does the attacker have to pay a "soul for a soul". If she remains unharmed and only the fetus is hurt, only a fine is incurred.
- Yehuda and Tamar – R. Yaakov b. Efraim points to Yehuda's decision to burn the pregnant Tamar as evidence that a fetus is not considered a distinct being. If it had been, Yehuda would not have asked that Tamar be executed until after the child's birth.14
- "אֹתוֹ וְאֶת בְּנוֹ" – These sources assume that this verse is prohibiting the killing of a parent animal and her child rather than a pregnant animal. See Ibn Ezra who asserts that the verse is not even limited to a mother, but refers to a father as well.
- Capital punishment – The first opinion in Mishnah Sanhedrin and the Mekhilta and Rabanan in Bavli Sanhedrin all read "וְנָתַתָּה נֶפֶשׁ תַּחַת נָפֶשׁ" literally to mean that the assailant is killed for killing the woman, despite not having targeted her originally.15 Since the man had intent to kill, this cannot be considered inadvertent murder. Ibn Ezra supports this read by pointing out that had the men just been culpable of a fine, why distinguish the case of the fetus dying from that of the mother if the law is the same? Moreover, why would the Torah use different language for each?
- Monetary compensation – R. Shimon in Mishnah Sanhedrin16 and Rebbbe in the Mekhilta disagree, asserting that "a soul for a soul" is metaphoric and refers only to monetary payment. They equate the language of "giving" (וְנָתַן בִּפְלִלִים) in verse 22 which clearly refers to a fine, and the language of "giving" (נָתַתָּה נֶפֶשׁ) in verse 23, and suggest that one can learn from one case to another.
Man
The punishment of a "soul for a soul" refers to a case in which one of the two fighting men suffered an "אָסוֹן".