Difference between revisions of "Injury to Bystanders and the Meaning of "יהיה אסון"/2"
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</ul></point> | </ul></point> | ||
<point><b>Relationship between the phrases "וְיָצְאוּ יְלָדֶיהָ" and "וְלֹא יִהְיֶה אָסוֹן"</b> – According to this position, these two phrases reinforce each other, with both stressing how the victims were not unduly harmed.<fn>See below that most of the other positions read the two terms as standing in contrast to one another.</fn></point> | <point><b>Relationship between the phrases "וְיָצְאוּ יְלָדֶיהָ" and "וְלֹא יִהְיֶה אָסוֹן"</b> – According to this position, these two phrases reinforce each other, with both stressing how the victims were not unduly harmed.<fn>See below that most of the other positions read the two terms as standing in contrast to one another.</fn></point> | ||
− | <point><b>Why pay a monetary fine?</b> If both mother and fetus survive intact, it is | + | <point><b>Why pay a monetary fine?</b> If both mother and fetus survive intact, it is unclear why there should be a monetary fine at all:<br/> |
<ul> | <ul> | ||
− | <li>According to Aharon b. Eliyahu the | + | <li>According to Aharon b. Eliyahu, the Karaite, the attacker is paying for the woman's suffering ("צער"), rather than for 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 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.</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> | ||
− | <point><b>Status of unborn fetus</b> – This position views the fetus as having its own independent status, equivalent to any other person, as Y. Hadassi the Karaite writes | + | <point><b>Status of unborn fetus</b> – 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.</point> |
<point><b>Biblical parallels</b><ul> | <point><b>Biblical parallels</b><ul> | ||
− | <li><b>"אֹתוֹ וְאֶת בְּנוֹ" </b> –The Karaites understand the prohibition in <a href="Vayikra22-28" data-aht="source">Vayikra 22</a> 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.</li> | + | <li><b>"אֹתוֹ וְאֶת בְּנוֹ" </b> –The Karaites understand the prohibition in <a href="Vayikra22-28" data-aht="source">Vayikra 22</a> 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.</li> |
− | <li><b>"שֹׁפֵךְ דַּם הָאָדָם בָּאָדָם דָּמוֹ יִשָּׁפֵךְ" </b>– This position could read this verse as does R. Yishmael in <multilink><a href="#" data-aht="source">Bavli Sanhedrin</a></multilink>, to mean "one who spills the blood of man [which is] in another man [i.e.a fetus], his blood shall be spilled."</li> | + | <li><b>"שֹׁפֵךְ דַּם הָאָדָם בָּאָדָם דָּמוֹ יִשָּׁפֵךְ" </b>– This position could read this verse as does R. Yishmael in <multilink><a href="#" data-aht="source">Bavli Sanhedrin</a></multilink>, to mean "one who spills the blood of man [which is] in another man [i.e. a fetus], his blood shall be spilled."</li> |
</ul></point> | </ul></point> | ||
<point><b>נתכוון להרוג את זה והרג את זה</b> – These sources disagree regarding the penalty of one who meant to kill one person but killed another:<br/> | <point><b>נתכוון להרוג את זה והרג את זה</b> – These sources disagree regarding the penalty of one who meant to kill one person but killed another:<br/> | ||
<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 | + | <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 which 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 fledged 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 03:50, 5 February 2016
Injury to Bystanders and the Meaning of "יִהְיֶה אָסוֹן"
Exegetical Approaches
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 having independent status. 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.
- 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.
- "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 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.
- 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 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.
- 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.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.
- 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.16
- "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.
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 monetary compensation.