Bava Kamma 038

1:
Sometimes we ask ourselves why this tractate goes into such detail regarding the adventures of an ox. We must remember two things: cattle were a very important – and expensive – commodity in the economy of mishnaic times, and the tractate is no doubt describing everyday occurrences. But we must also bear in mind that often a ruling of the Mishnah can disclose to us an important principle of halakhic jurisprudence.

2:
There are certain elements in the text of our mishnah that are missing and that are required for a proper understanding of the ruling. Two separate scenarios are described in our mishnah and the difference between them is not just the identity of the attacker. Here is a description of each scenario according to the further information provided by the Gemara.

3:
In the first scenario an ox attacks a cow. When the incident is discovered the cow is found with a dead calf lying next to her, but it is not possible to ascertain whether the calf was born (or possibly was aborted) before the ox attacked the cow or it was the ox's attack that caused the cow to deliver prematurely.

4:
In the second scenario a cow attacks an ox. When the incident is discovered the cow is missing but a live calf, newly born, is found where she was lying. It is not possible to ascertain whether the calf was born before the cow attacked the ox or afterwards.

5:
We have here an example of where accepted halakhah does not follow the ruling of the mishnah at all! Rabbi, when he compiled his Mishnah, preferred one opinion and set it down, but later the sages preferred another ruling. The reason for their preference is because the ruling of our mishnah contradicts an overriding principle of halakhic jurisprudence, one which we have met before in detail. The Gemara [BK 46a] reads as follows:

To be continued.

Avraham Hasson has a question concerning BK036. He writes:

In our mishnah an ox that gores must be killed but only a Bet Din can hand down the sentence, even if ultimately it will die of ritual slaughter. How can the "law of the pursuer" be put into the hands of any man to render judgement and execute it? Is the life of a human being cheaper than the life of an ox, which is property? And, to my chagrin, how cheap is human life that a man can murder his spouse together with his children just because she has decided to leave him. There are many other examples.

I respond:

For a description of the law of the pursuer see Sanhedrin 113, explanation 4. The law of the pursuer is very problematic. Basically it is based on an incident in the Torah in which a man takes the law into his own hands, kills the malfeasants in flagrante delicto and is praised by God for his deed. The story is told in the Torah [Numbers 25:1-12]:

The sages expand the story in order to make some halakhic sense of it: thus we have a situation in which Moses is sitting in judgement when suddenly Zimri [Number 25:14] bursts in dragging after him Kozbi [a Midianite woman, Numbers 25:15] by her hair. He screams at Moses:

However, can this act of zealotry on the part of Pinḥas serve as a model? The sages in the Gemara turn halakhic summersaults in order to limit the possibility of 'the law of the pursuer' as much as possible, despite the praise heaped on Pinḥas by the Torah itself. They rule that if the would-be assailant asks a court whether the deed should be done or no they must respond that he may not kill the malfeasant. Not only that, but if the attacker ignores the opinion of the court he has become a murderer; and if the victim turns on his attacker (who is acting to defend the law) and kills him he is held to be guiltless, because his life was being threatened.

Thus we see that the sages held that the life, even of a sinner caught in the act of sinning, is not hefker. Certainly this is the case where the perceived sin is political (even when the pretext is disguised in religious terms, as in the case of Yigal Amir, who murdered Prime Minister Rabin in 1995).

In his question Avraham also raises a second point: how is it possible that human life is held so cheap that a man can bring himself to murder his wife and his own children. I have no answer to that question. But I am constantly reminded of what the prophet Jeremiah has to say about the human psyche: