Sanhedrin 113

Tomorrow is the fourth anniversary of the death of Yitzĥak Rabin z"l in whose memory this Mishnah Study Group is held. However, in Israel, the observance has been advanced by one day so as not to inadvertantly infringe on the sanctity of Shabbat. I have held up today's shiur for a few days now because of the timely coincidence of the occasion with the subject matter of this shiur. Inevitably, this day also marks the fourth anniversary of the Rabin Mishnah Study Group. Over the last four years the number of participants has multiplied more than forty-fold. Kudos to Ed Frankel who originally suggested the idea during those dark days of Marĥeshvan 5756.

Hareini lomed/lomedet Mishnah le'ilu'i nishmato shel Yitzĥak ben Rosa u-Neĥemya Rabin
I am studying Mishnah in the memory of Yitzĥak Rabin, son of Rosa and Neĥemya

1:
Despite the fact that its contents have nothing to do with the main theme of this chapter, our present mishnah follows on quite naturally from the previous one. Mishnah six stipulated that the riotous and rebellious son is executed to prevent him from becoming a menace to society even though at present that menace is contained. Mishnah seven noted that the life of a person caught "breaking and entering" into someone else's property at night is forfeit as well, even though they have not yet committed a capital crime. Our present mishnah takes the logic one step further. it mentions three cases where a person's life is forfeit in order to prevent them from committing a crime!

2:
My translation of our mishnah is a little awkward compared with the simplicity of the Hebrew. This is in order to maintain the ambiguity of the original. While the intention of our mishnah is crystal clear its syntax is open to more than one interpretation.

3:
Our mishnah consists of two sections, Reisha and Seifa [first and last sections]. The Reisha enumerates three specific cases in which one human being is threatening another – in one case with murderous intent and in the other two with illicit and violent sexual intentions. Rashi [Western Europe, 11th century CE] understands our mishnah as teaching that in order to prevent these three from actually committing their crime their life is forfeit. Any passer-by may take their life in order to prevent the crime from being committed. Thus Rashi understands the Hebrew as "The following are saved from sinning even at the cost of their life". Rambam [North Africa, 12th century CE], Ovadyah mi-Bertinoro [Italy, 15th century CE] and Yom-Tov Lipmann Heller [Central Europe 17th century CE], the three greatest commentators on the Mishnah, follow Rashi in his interpretation. Certainly, the contents of the Seifa bear out this interpretation. Of course, the other feasible interpretation (and one that seems possibly to be suggested by Me'iri [France, 13th century CE]) is to understand the text as teaching that "The following are saved from assault even at the cost of the assailant's life.

4:
When one person is actively threatening the life of another his own life is forfeit and before he manages to accomplish his threat he may (must) be killed – even by a passer-by. Such a person is termed in Hebrew Rodef [pursuer]. He is, in fact, a potential murderer, except that in this case there may be only one witness and that witness has a chance to prevent the murder taking place. Nevertheless, the would-be murderer, the Rodef, must be warned before his life becomes forfeit and may only be killed if he fails to take heed of the warning. Let us imagine a situation in which Re'uven is threatening Shim'on with a knife. Yehudah, passing by, realizes what is happening and he has a gun. He calls out to Re'uven, "Drop that knife or I'll shoot". From the moment of Yehudah's warning Re'uven's life is in his own hands: if he continues to threaten Shim'on's life in any way Yehudah must save Shim'on's life in any way he can, even by killing Re'uven.

5:
The Gemara [Sanhedrin 73a] suggests (by quoting a Baraita to this effect) that the above-mentioned duty devolves upon Yehudah from a Torah command: "Do not stand idly by your brother's blood" [Leviticus 19:16]. The Gemara understands this as commanding each of us to save another when his or her life is immediately threatened – be that threat by natural causes (such as drowning in a river) or by unnatural causes, as in our case. However, the fact that the assailant's own life becomes forfeit is learned from another law of the Torah: the law of the affianced young woman.

The Torah here expressly "saves" the young woman from (judicial) death while "killing" her assailant. The Gemara applies the logic of "Kal va-Ĥomer" to this law. ("Kal va-Ĥomer" means from a specified law in a less serious situation drawing a logical conclusion as to an unspecified law which may be applicable in a more serious situation.) In our present case, the young woman's assailant does not want to do her to death but "only" to rape her: the Torah specifically states that the assailant is to die and his victim is to be saved from death. In the case of the Rodef, who is not threatening his victim with rape but with murder, is it not logical that the victim's life must be saved even at the cost of the assailant's life?

7:
Our mishnah also mentions the case of the affianced virgin as being one where she must be saved from rape even at the cost of the rapist's life. The Gemara [Sanhedrin 73a] learns this from the same source: the Torah says "there was no one to save her"; thus if someone could save her is it not logical that he should do so in any way he can? If there were no one to save her the assailant's life would be forfeit any way.

8:
Our mishnah makes no distinction between the attempted rape of a woman and the attempted (homosexual) rape of a man: the victim must be saved from his assailant by all possible means. It is very interesting that here the law of homosexual rape is derived directly and logically from heterosexual rape.

9:
Tomorrow marks the fourth anniversary of the death of Prime Minister Yitzĥak Rabin z"l. His murderer, Yigal Amir, claimed that the Prime Minister's life was forfeit because he was a Rodef whose policy of peace posed a threat to the life and safety of every Israeli. It was therefore his (Amir's) duty to dispatch him before it was too late. How far from the true "law of the Rodef his vicious interpretation was (and that of the rabbis who gave him spiritual succour) I leave each one of us to judge. What is clear, however, is that since technically no one "warned" Amir about taking Rabin's life, his own life is not forfeit under rabbinic law.

10:
The Seifa of our mishnah makes very clear that the life of a person about to commit a capital offence is forfeit before the event only where the safety of another human being is threatened. The life of someone who is about to commit some other kind of capital offence is not forfeit. Our mishnah gives the example of Shabbat observance. While Shabbat desecration, by contravening one of the thirty-nine Melakhot (or one of their derivatives) is a capital offence [see Sanhedrin 101] it can only be judged if the perpetrator was warned by two witnesses not to do the deed. He or she may not be judged a Rodef whose life is forfeit simply because he or she is about to desecrate Shabbat or even to commit an act of idolatry – or even to talk peace to the Palestinians!

11:
Thus is concluded our study of Chapter Eight of this tractate.

Orin Rotman writes concerning comment #6 in our last Shiur:

I am curious about your comment connecting the two cases as cases of 'judicial death'. The execution of the rebellious son is only after verdict of the court, but the home invader is killed during the commission of the crime by the homeowner. The latter doesn't appear to be a 'judicial death' but a sanctioned extra-judical death. What if the homeowner's first blow doesn't kill the invader – does the sanction go so far as to allow killing the incapacitated invader, as his life is already 'forfeit"?The sages do not really distinguish between judicial execution and non-judicial execution. They are concerned only with the fact that the Torah makes a person's life forfeit. As the sages see it, what the riotous and rebellious son has in common with the home invader is that neither of them have yet committed a capital crime and yet their lives are forfeit. The home-owner (or anyone else discovering the home invader) is entitled to do anything necessary to prevent the home invader from killing him. The assumption is that the invader would not stop at murder in order to escape apprehension, therefore "when someone threatens your life, kill him first" [Berakhot 58a]. As long as the home owner does not (and cannot) know the invader's intentions he must assume that they are murderous. From the moment it becomes clear to the home owner that no one's life is threatened by the invader the invader's life is inviolate.

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Juan-Carlos Kiel writes on the same topic:

You say: The assumption is that he may be condemned to death by the householder, as it were, "on account of his future", on account of his intended and probable larceny and homicide. In that case the householder, as well as the courts that judged the "rebellious son", would be passing judgement not for fact, but for potential, for intentions. Would they consider themselves as boĥen Klayot to know what are the internal potentials and thoughts of the accused? Isn't this a condition ascribed to non-human judges? Aren't the judges supposed to pass judgement for facts and not for intentions? Or potential actions?

I respond:

It is not the judges who are considered to "know what are internal potentials and thoughts of the accused", but the Torah. In Sanhedrin 111 I wrote:-