Difference between revisions of "Injury to Bystanders and the Meaning of "יהיה אסון"/2"
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<point><b>Why pay a monetary fine?</b> If both mother and fetus survive intact, it is not clear why there should be a monetary fine at all:<br/> | <point><b>Why pay a monetary fine?</b> If both mother and fetus survive intact, it is not clear why there should be a monetary fine at all:<br/> | ||
<ul> | <ul> | ||
− | <li>The | + | <li>The attacker might be paying for the woman's suffering ("צער") or embarrassment ("בושת"), rather than bodily damage.<fn>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.</fn> </li> |
<li>Cassuto, in contrast, suggests that though no one died, there might have been other damage to the victims which needs compensation.<fn>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.</fn></li> | <li>Cassuto, in contrast, suggests that though no one died, there might have been other damage to the victims which needs compensation.<fn>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.</fn></li> | ||
</ul></point> | </ul></point> | ||
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<ul> | <ul> | ||
<li><b>Death </b>– 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.</li> | <li><b>Death </b>– 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.</li> | ||
− | <li><b>Monetary fine</b> – 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.<fn>See <a href=""עַיִן תַּחַת עַיִן" – An Eye for an Eye" data-aht="page">"עַיִן תַּחַת עַיִן" – An Eye for an Eye</a> for elaboration.</fn>  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.<fn> | + | <li><b>Monetary fine</b> – 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.<fn>See <a href=""עַיִן תַּחַת עַיִן" – An Eye for an Eye" data-aht="page">"עַיִן תַּחַת עַיִן" – An Eye for an Eye</a> for elaboration.</fn>  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.<fn>As such, according to him, there is really no difference between the first and second scenarios, since in both he assumes that the assailant is paying a monetary fine for damages. This leads one to wonder why the verse needed to use the unique (and misleading) language of giving a "soul for a soul" rather than putting both scenarios together under the punishment of "עָנוֹשׁ יֵעָנֵשׁ כַּאֲשֶׁר יָשִׁית עָלָיו בַּעַל הָאִשָּׁה".  <br/>He might suggest that the Torah wanted to highlight how the payment is really in lieu of giving a life for a life.  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.</fn>  </li> |
</ul></point> | </ul></point> | ||
</opinion> | </opinion> |
Version as of 16:00, 4 February 2016
Injury to Bystanders and the Meaning of "וְלֹא יִהְיֶה אָסוֹן"
Exegetical Approaches
Fetus
A fetus is considered an independent being and thus causing it an "אָסוֹן" incurs the same punishment as would doing so to an adult. 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
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.12
Woman
A fetus is not considered on equal footing with an adult. Thus, only when an "אָסוֹן" befalls the pregnant woman, and not her fetus, is the attacker fully culpable, meriting the punishment of "וְנָתַתָּה נֶפֶשׁ תַּחַת נָפֶשׁ" (you shall give a soul for a soul). If only the fetus is killed, a lesser 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.13
- "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.14 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 Sanhedrin15 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 capital punishment discussed in the passage refers only in a case where there is an "אָסוֹן" and one of the assailants is killed. If he is not hurt, and only the fetus dies, only a monetary payment is necessary. The Torah does not speak of the fate of the mother at all.