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

Injury to Bystanders and the Meaning of "יִהְיֶה אָסוֹן"

Exegetical Approaches

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Overview

Commentators differ regarding the circumstances of the two scenarios of "וְלֹא יִהְיֶה אָסוֹן" and "וְאִם אָסוֹן יִהְיֶה".  Several commentators assume that the text focuses on the fate of the fetus.  Karaite exegetes assert that the Torah is contrasting a case in which the blow causes only a premature birth with one which results in a miscarriage, while the Septuagint distinguishes between the death of an early term fetus and a viable one.  According to both, the first case incurs a fine while the latter results in death.  Their reading leads to the conclusion that the Torah views at least a viable fetus as having full human status and that one who intends to kill one person but accidentally kills another is nonetheless culpable of murder.

In contrast, Rabbinic literature and most commentators assert that the passage revolves around the fate of the pregnant woman.  Only if she dies is there the full penalty of "a soul for a soul", while the death of her fetus results in only a fine.  Accordingly, they assert that the Torah views even a viable fetus as not yet having the full status of a person.  Within this position, there is disagreement regarding the meaning of "a soul for a soul", and thus regarding the penalty for one who inadvertently kills a non-targeted bystander.  Finally, Rambam assumes that the Torah is contrasting a case in which the combatant is unharmed from his foe's blow while a third party is injured, with a case in which the combatant himself is also killed.  This reading allows him to maintain that, in general, when someone intends to kill but hits the wrong target, capital punishment is not implemented.

To the Fetus

The "אָסוֹן" spoken of in the verses refers to the fate of the fetus.  Since the fetus (at least once it is viable) is considered an independent entity, causing its death (in the "וְאִם אָסוֹן יִהְיֶה" situation) incurs the same punishment as is received for killing an adult.  This approach subdivides regarding the exact circumstances of the opposite case in which there is no "אָסוֹן":

Fetus Survived

The "לֹא יִהְיֶה אָסוֹן" scenario describes an incident in which the baby is born alive, though prematurely.  Since there is no fatality, only monetary compensation is necessary.

Sources:Karaite commentatorsYehuda Hadassi, the Karaite, Eshkol HaKofer 270Aharon b. Eliyahu, the Karaite, Keter Torah Shemot 21, CassutoShemot 21:22-23About Prof. Umberto Cassuto

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 woman 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 phrases in Bereshit 38, "זֶה יָצָא רִאשֹׁנָה ... וְהִנֵּה יָצָא אָחִיו"‎, which refer to the births of viable children.

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

• Death – The Karaite commentator, Y. Hadassi, and Cassuto understand "אָסוֹן" to refer to death.¹ The Torah teaches that if despite the preterm delivery, neither the mother nor her child die, the assailant only pays a monetary fine.  However, if either the mother or child dies, he pays a "soul for a soul".  According to this reading, 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 limb 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 unclear why there should be a monetary fine at all:

• According to Aharon b. Eliyahu, the Karaite, the attacker is paying for the woman's suffering ("צער"), rather than for 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.
• "שֹׁפֵךְ דַּם הָאָדָם בָּאָדָם דָּמוֹ יִשָּׁפֵךְ" – This position could read this verse as does R. Yishmael in Bavli Sanhedrin, to mean "one who spills the blood of man [which is] in another man [i.e. a fetus], his blood shall be spilled."

"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 which 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 fledged murderer.⁷ 

Unformed Fetus

The "לֹא יִהְיֶה אָסוֹן" scenario speaks of a case in which the fetus was not yet full formed when the blow caused the miscarriage.  Since it was not yet viable, the penalty is only a monetary one.

Sources:SeptuagintShemot 21:22-23About the Septuagint, PhiloThe Special Laws 3:86-87The Special Laws 3:108-109About Philo

The case:  "וְכִי יִנָּצוּ אֲנָשִׁים וְנָגְפוּ אִשָּׁה הָרָה"

• Unintended target – The Septuagint apparently understands 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   It is possible that according to him, the case is one in which the woman is related to one of the quarreling men and intervenes in the skirmish.⁹

"וְיָצְאוּ יְלָדֶיהָ" – These sources understand this phrase to refer to a miscarriage.

Definition of "אָסוֹן" – It is unclear how these sources would translate the word, as they only give a general interpretation of the verse.¹⁰  Since they maintain that, according to both scenarios, the infant died, they would have to ascribe a different definition to the word "אָסוֹן".  According to them it could mean tragedy,¹¹ 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.

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 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.¹²

Biblical parallels

• "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.

"נתכוון להרוג את זה והרג את זה"

• 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 man 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

To the Woman

The text speaks of an "אָסוֹן" that happened to the pregnant woman.  Since even a viable fetus does not have equal status to an already born person, only when an "אָסוֹן" befalls the pregnant woman and she dies, is the attacker fully culpable and deserving of the punishment of "נֶפֶשׁ תַּחַת נָפֶשׁ" ("a soul for a soul").  If only a fetus is killed, a lesser fine is incurred.

Sources:JosephusAntiquities 4:8:33About Josephus, Mekhilta DeRabbi YishmaelNezikin 8About Mekhilta DeRabbi Yishmael Shemot, Bavli SanhedrinSanhedrin 78b-79bAbout the Bavli, Targum Yerushalmi (Yonatan)Shemot 21:22-23About Targum Yerushalmi (Yonatan), RashiShemot 21:22-23About R. Shelomo Yitzchaki, RashbamShemot 21:22-23About R. Shemuel b. Meir, Ibn EzraShemot Long Commentary 21:22-23Shemot Short Commentary 21:22-23About R. Avraham ibn Ezra, R. Yosef Bekhor ShorShemot 21:22-23About R. Yosef Bekhor Shor, ShadalShemot 21:22-23About R. Shemuel David Luzzatto, R. David Zvi HoffmannShemot 21:18About R. David Zvi Hoffmann, and many others

"נתכוון להרוג את זה והרג את זה" – These sources disagree whether one is liable for death in such a case:

• Capital punishment – The first opinion in Mishna Sanhedrin and the Mekhilta and the Rabbis in Bavli Sanhedrin all read "נֶפֶשׁ תַּחַת נָפֶשׁ" literally to mean that the assailant incurs the death penalty 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 Mishna Sanhedrin¹⁵ and R. Yehuda HaNasi 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" ("וְנָתַתָּה נֶפֶשׁ") in verse 23, and suggest that one can learn from one case to another.

Status of unborn fetus – R. Yitzchak in the Mekhilta explains that the fetus is not considered a viable human being, and thus killing it cannot be a capital crime.  R. Yaakov b. Ephraim adds that the fetus and mother are viewed as one being and not two distinct entities. As such, one might view the death of the fetus as an injury to the woman, but not as murder.

Biblical cases

• Yehuda and Tamar – R. Yaakov b. Ephraim points to Yehuda's instructions to burn the pregnant Tamar as evidence that a fetus is not considered a distinct being.  If it had been, Yehuda would have stayed Tamar's execution until after the birth.¹⁶
• "אֹתוֹ וְאֶת בְּנוֹ" – These sources assume that this verse is prohibiting the killing of an animal and her already born 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.

The case:  "וְכִי יִנָּצוּ אֲנָשִׁים וְנָגְפוּ אִשָּׁה הָרָה" – According to this position, the Torah speaks of a fight between two men during which one attempts to strike the other but unintentionally hits a pregnant bystander instead.

"וְיָצְאוּ יְלָדֶיהָ" – These sources maintain that the phrase connotes a miscarriage.

Definition of "אָסוֹן" – These commentators all assert that "אָסוֹן" refers to death.  The Mekhilta writes that even though there is no solid proof for this definition, there is a hint to it from Yaakov's concerns regarding Binyamin, "פֶּן יִקְרָאֶנּוּ אָסוֹן", which it understands to mean "lest he die".

Relationship between the phrases "וְיָצְאוּ יְלָדֶיהָ" and "וְלֹא יִהְיֶה אָסוֹן" – This position reads the two phrases as standing in contrast to one another.  Though the fetus was aborted and died, the mother did not die.

To the Man

The "אָסוֹן" mentioned in the passage relates to the death of one of the combatants, as there is capital punishment only in a case where the intended target is killed.  Violence which causes the death of an unintended bystander is punished only by financial compensation.

Sources:Perhaps Tanna deBei Chizkiyah in Bavli SanhedrinSanhedrin 78b-79bAbout the Bavli,¹⁷ RambamCommentary on the Mishna Ketubot 3:2Hilchot Rotzeach 4:1About R. Moshe b. Maimon

The case:  "וְכִי יִנָּצוּ אֲנָשִׁים וְנָגְפוּ אִשָּׁה הָרָה" – According to Rambam, the assailant hit his combatant, who in turn collided with a pregnant woman. In contrast to most of the other commentators, he does not view this as a case in which an innocent bystander is hit instead of the intended target, but rather one in which both are hit with the same blow.

"וְיָצְאוּ יְלָדֶיהָ" – Rambam asserts that the blow caused a miscarriage.

Definition of "אָסוֹן" – Rambam understands "אָסוֹן" to refer to the death of one of the assailants.

"נתכוון להרוג את זה והרג את זה" – According to Rambam, one who meant to kill one person but killed another is not liable for capital punishment. This position is likely what motivates him to read the case as one which is speaking only about the death of the intended assailant (and fetus), rather than the pregnant lady. One advantage of this reading is that it enables him to maintain the literal understanding of "וְנָתַתָּה נֶפֶשׁ תַּחַת נָפֶשׁ".‎¹⁸

Status of unborn fetus – Like Chazal, Rambam maintains that the unborn fetus does not have the same status as a regular person, and thus his death incurs only a fine.

Purpose of the case – According to Rambam, the Torah would seem not to be teaching anything new in this law, as it has previously been taught that the punishment for intentional killing is death. Thus, he explains that really the Torah is coming to teach the principle of "קם ליה בדרבה מיניה".  If in one action, someone commits two crimes, he is only punished for the more severe one.  Thus, in a case where one of the combatants is killed, the assailant incurs only the death penalty, and is not also required to pay a fine for the death of the fetus.

¹ This could work with the only other instances 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 harm that might befall 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 the law of "נתכוון להרוג את זה והרג את זה" and the consequences of killing a fetus are 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 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".  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.

⁸ See TosafotSanhedrin 79aAbout Ba'alei HaTosafot who also raise this possibility.

⁹ See the similar case in Devarim 25:11 where the identical term "כִּי יִנָּצוּ אֲנָשִׁים" appears and explicitly involves the intervention of a woman.

¹⁰ 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, 990: 30-45.

¹¹ In Bereshit 42 and 44, the Septuagint translates the word as sickness, but it would be hard to apply that specific definition here.

¹² See also Josephus, Against Apion, who states that a woman who aborts her child is considered a murderer.

¹³ ElsewhereThe Special Laws 3:86-87About Philo, though, Philo asserts that even one who only intends to kill but does not succeed, is nonetheless considered a murderer and liable for death.  As such, it is likely that, in principle, Philo would agree that one who targets one and actually kills another is culpable, even if he does not think that this verse is coming to teach that law.

¹⁴ See also Josephus, Ibn Ezra Short Commentary, R"Y Bekhor Shor, and Shadal.

¹⁵ In the Mishna, R. Shimon only states that one who intended to kill a certain person but killed another is exempt. It is the Bavli that adds that he must be reading the verse like R. Yehuda HaNasi.

¹⁶ See Mishna ArakhinArakhin 1:4About the Mishna that codifies this as law; the fact that a woman is pregnant is not enough to stay her execution if she is culpable of a capital crime.

¹⁷ See Tosafot Rosh on Bavli Ketuvot who understands him to be reading the verses in this manner.

¹⁸ Cf. the opinions above who try to reread it as referring to money.  Rambam is more similar to the reading offered by Philo, who also maintains that the case is one of intentional killing and not about hitting the wrong target.