Difference between revisions of "Injury to Bystanders and the Meaning of "יהיה אסון"/2"
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<category>To the Fetus | <category>To the Fetus | ||
− | <p>The "אָסוֹן" spoken of in the verses refers to what happened to the fetus. Since the fetus is considered an independent entity, causing it an "אָסוֹן" incurs the same punishment as | + | <p>The "אָסוֹן" spoken of in the verses refers to what happened to the fetus. Since the fetus is considered an independent entity, causing it an "אָסוֹן" incurs the same punishment as one receives for doing so to an adult.  This approach subdivides regarding the circumstances of the opposite case in which there is no "אָסוֹן":</p> |
<opinion>Fetus Survived | <opinion>Fetus Survived | ||
− | <p>The | + | <p>The "לֹא יִהְיֶה אָסוֹן" scenario describes an incident in which neither the pregnant woman nor her unborn child suffer an "אָסוֹן", and the baby is born alive.  Thus, only monetary compensation is required.</p> |
<mekorot><multilink><a href="YehudaHadassitheKaraiteEshkolHaKofer270" data-aht="source">Karaite commentators</a><a href="YehudaHadassitheKaraiteEshkolHaKofer270" data-aht="source">Yehuda Hadassi, the Karaite, Eshkol HaKofer 270</a><a href="AharonbEliyahutheKaraiteKeterTorahShemot21" data-aht="source">Aharon b. Eliyahu, the Karaite, Keter Torah Shemot 21</a></multilink>, <multilink><a href="UCassutoShemot21-22-23" data-aht="source">Cassuto</a><a href="UCassutoShemot21-22-23" data-aht="source">Shemot 21:22-23</a><a href="Prof. Umberto Cassuto" data-aht="parshan">About Prof. Umberto Cassuto</a></multilink></mekorot> | <mekorot><multilink><a href="YehudaHadassitheKaraiteEshkolHaKofer270" data-aht="source">Karaite commentators</a><a href="YehudaHadassitheKaraiteEshkolHaKofer270" data-aht="source">Yehuda Hadassi, the Karaite, Eshkol HaKofer 270</a><a href="AharonbEliyahutheKaraiteKeterTorahShemot21" data-aht="source">Aharon b. Eliyahu, the Karaite, Keter Torah Shemot 21</a></multilink>, <multilink><a href="UCassutoShemot21-22-23" data-aht="source">Cassuto</a><a href="UCassutoShemot21-22-23" data-aht="source">Shemot 21:22-23</a><a href="Prof. Umberto Cassuto" data-aht="parshan">About Prof. Umberto Cassuto</a></multilink></mekorot> | ||
<point><b>The case – "וְכִי יִנָּצוּ אֲנָשִׁים וְנָגְפוּ אִשָּׁה הָרָה"</b> – 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.</point> | <point><b>The case – "וְכִי יִנָּצוּ אֲנָשִׁים וְנָגְפוּ אִשָּׁה הָרָה"</b> – 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.</point> | ||
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</ul></point> | </ul></point> | ||
</opinion> | </opinion> | ||
− | <opinion>Fetus | + | <opinion>Unformed Fetus |
− | <p>The | + | <p>The "לֹא יִהְיֶה אָסוֹן" scenario speaks of a case in which a blow to the mother causes her to miscarry a fetus which is not yet fully formed.  As such, the penalty is only a monetary one.</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> |
Version as of 02:07, 5 February 2016
Injury to Bystanders and the Meaning of "יִהְיֶה אָסוֹן"
Exegetical Approaches
To the Fetus
The "אָסוֹן" spoken of in the verses refers to what happened to the fetus. Since the fetus is considered an independent entity, causing it an "אָסוֹן" incurs the same punishment as one receives for doing so to an adult. This approach subdivides regarding the circumstances of the opposite case in which there is no "אָסוֹן":
Fetus Survived
The "לֹא יִהְיֶה אָסוֹן" scenario describes an incident in which neither the pregnant woman nor her unborn child suffer an "אָסוֹן", and the baby is born alive. Thus, only monetary compensation is required.
- 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.
- "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."
- 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
Unformed Fetus
The "לֹא יִהְיֶה אָסוֹן" scenario speaks of a case in which a blow to the mother causes her to miscarry a fetus which is not yet fully formed. As such, the penalty is only a monetary one.
- 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 actively involved in the skirmish.9
- "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.
- 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
To the Woman
The text speaks of an "אָסוֹן" that happened to the pregnant woman. Since a fetus is not considered on equal footing with an adult, 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.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 Rabbanan in Bavli Sanhedrin all read "וְנָתַתָּה נֶפֶשׁ תַּחַת נָפֶשׁ" literally to mean that the assailant incurs the death penalty 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.
To the Man
The "אָסוֹן" mentioned in the passage relates to the death of one of the assailants. Only in such a case is there capital punishment. If, on the other hand, 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.