Injury to Bystanders and the Meaning of "יהיה אסון"/2

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

Exegetical Approaches

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Fetus

If 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":

Both Woman and Fetus

The Torah contrasts an incident in which neither the pregnant woman nor her child suffer an "אָסוֹן", with a case in which one or the other did.

Sources:Karaites, Cassuto, Modern scholars

The case – "וְכִי יִנָּצוּ אֲנָשִׁים וְנָגְפוּ אִשָּׁה הָרָה" – Cassuto explains that the Torah describes a brawl between two men during which one man meant to hit the other, but accidentally struck a pregnant lady instead.

"וְיָצְאוּ יְלָדֶיהָ" – According to these sources, this phrase refers to a premature birth, not to a miscarriage.  It might be equivalent to the similar phrase in Bereshit 38, "זֶה יָצָא"‎, which refers to a live birth.

Definition of "אָסוֹן" – This position could understand the word in one of two ways:

• Death – Y. Hadassi the Karaite and Cassuto understand the word 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.

Relationship between the phrases "וְיָצְאוּ יְלָדֶיהָ" and "וְלֹא יִהְיֶה אָסוֹן" – According to this position, these two phrases reinforce each other, with both stressing how the victims were not unduly harmed.³

Why pay a monetary fine? If both mother and fetus survive intact, it is not clear why there should be a monetary fine at all:

• The Karaites suggest that the attacker is paying for the woman's suffering ("צער") or embarrassment ("בושת"), rather than bodily damage.⁴ 
• Cassuto, in contrast, suggests that though no one died, there might have been other damage to the victims which needs compensation.⁵

Status of unborn fetus – This position views the fetus as having its own independent status, equivalent to any other person, as Y. Hadassi the Karaite writes, "אפילו העובר אשר במעיים כי גם הוא אדם".  As such, causing his death constitutes murder.

Biblical parallels – "אֹתוֹ וְאֶת בְּנוֹ" – The Karaites understand the prohibition in Vayikra 22 to kill an animal "with its son" to refer to a pregnant animal; this is worse than killing a lone animal since both mother and fetus have independent status.

נתכוון להרוג את זה והרג את זה – These sources disagree regarding the penalty of one who meant to kill one person but killed another:

• 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.  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

The Torah distinguishes between cases in which someone causes a fetus who is not fully formed to be aborted and one in which a fully formed fetus is aborted.

Sources:SeptuagintShemot 21:22-23About the Septuagint, PhiloOn Special Laws 3:86-87On Special Laws 3:108-109on special laws 3:117-118About Philo

The case – "וְכִי יִנָּצוּ אֲנָשִׁים וְנָגְפוּ אִשָּׁה הָרָה" – The Septuagint apparently understands that that the man accidentally hit the woman instead of his foe, while Philo, instead, assumes that he attacked the pregnant woman intentionally.  [It is possible that the case is one in which the woman is related to one of the quarreling men and had tried to intervene.]

"וְיָצְאוּ יְלָדֶיהָ" – These sources understand this to mean that the woman miscarried her infant.

Definition of "אָסוֹן" – These sources understand the word to mean "formed".  Such a meaning is difficult to sustain by the other appearances of the word in Bereshit 42 and 44, which speak of Binyamin suffering an "אָסוֹן". ‎Indeed, there the Septuagint translates it to mean "sickness."⁷

Relationship between the phrases "וְיָצְאוּ יְלָדֶיהָ" and "וְלֹא/ יִהְיֶה אָסוֹן" – 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.

Status of unborn fetus – These sources distinguish the status of a full fashioned fetus from one which is still unformed.  Killing the latter necessitates only a monetary fine, while killing the former is a capital offense.  Philo explains "for such a creature as that is a man"; once the baby is formed it has full human status and killing it constitutes murder.⁸

Biblical parallels – "אֹתוֹ וְאֶת בְּנוֹ" – According to Philo, this verse prohibits killing and sacrificing a pregnant animal, proving that 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.

נתכוון להרוג את זה והרג את זה

• According to the Septuagint, 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. ElsewhereOn Special Laws 3:86-87About Philo, though, Philo asserts that even if one intends to kill another but in the end the other survives, he is nonetheless considered a murderer.  As such,

Woman

Man

¹ This could work with the only other appearances of the word, in Bereshit 42 and 44, where Yaakov is loathe to send Binyamin to Egypt lest an "אָסוֹן" occur to him.  Yaakov's comparison to Yosef, whom he believed to be dead, suggests that he feared that Binyamin, too, might die.

² Such an understanding would suggest that when Yaakov fears that Binyamin will suffer an "אָסוֹן" he is worried not only about potential death, but any tragedy that might harm him.

³ See below that most of the other positions read the two terms as standing in contrast to one another.

⁴ R. D"Z Hoffmann questions why the Torah would need to present a unique case so as to teach these laws, as they are included in the previous laws of verses 18-19. These sources might answer that in fact the Torah really brought the case only for its second half, when the bystander is actually harmed, since that law is not previously covered and not necessarily self-evident.

⁵ This is consistent with his understanding that the phrase "וְלֹא יִהְיֶה אָסוֹן" means that no one died.  Those who read it to mean that there was no physical injury, however, would have to explain like the Karaites, that the fine compensates for the woman's suffering or embarrassment.

⁶ See "עַיִן תַּחַת עַיִן" – An Eye for an Eye for elaboration.

⁷ Though it is possible for a word to take on more than one meaning, this term is quite rare, making it more unlikely that two of the five occurrences would mean one thing while the other three meant something else.

⁸ See also Josephus, Against ApionAgainst ApionAbout Josephus who declares that a woman who aborts her child is considered a murderer.