The Divrei Torah in this section have been translated by Rav Reuven Ungar, Director of Alumni Affairs
By: Rav Yoel Amital
"And Pinchas, the son of Elazar, the son of Aharon the Priest saw, and he rose from the community and took a spear in his hand" (Bamidbar, 25:7).
The gemara relates the view of Rav Chisda, that an indiviudal who consults with a Jewish court of law (Beit Din), is not instructed to perform a zealous action. Raba bar Chana, in the name of Rabi Yochanan, agrees to this principle. Furthermore- if Zimri had desisted from his forbidden action, and Pinchas had proceeded to kill him, Pinchas would have been guilty of murder.
An individual is permitted to avenge the death of his relative from the person who committed the premeditated murder. The Mishneh LaMelech (in Hilchot Rotzeach, 1:15) engages the following scenario: The perpetrator of the non-premeditated death overpowers the avenger and kills him. Is he liable for murder? The Mishnah LeMelech opines "and it appears that he is not punished for this, as Chazal have mentioned that if Zimri would have killed Pinchas, he would not have been put to death".
Likewise, the Mishneh LaMelech, investigates the case of an individual who pursues with intent to kill (rodeph) or to commit a sexual crime (where a bystander is permitted to kill the would-be perpetrator). Would the would-be perpetrator be culpable of murder if he overpowered and killed the bystander?
The Mishneh LaMelech responds that in such a case, the would-be perpetrator would be guilty. Zimri would have been innocent of killing Pinchas, for Pinchas endeavored to commit an action that was of a non-obligatory nature. Saving the life of an innocent bystander is a mitzvah; thus the rodeph would be culpable for killing the bystander who attempted to prevent the performance of the murder or of the sexual crime.
It is possible that there are distinctions between a bystander who kills the rodeph and between the intended target himself, who kills the rodeph. The Rambam (Hilchot Rotzeach, Chapter 1) states that one must warn the rodeph (hatra'ah) of the forbidden nature of what he is about to commit, and of the punishment for the crime. Is the intended target required to warm the rodeph? The Mishneh LaMelech (at the end of Hilchot Chovel u'Mazik) quotes the Rivash (Siman 238) that the intended target is exempt from warning the rodeph (Rav Ovadia Yosef deals with this issue at length in Yabia Omer IV, Choshen Mishpat, Siman 5).
In Parshat Vayishlach, Yaakov Avinu was concerned that he would have been forced to kill members of the camp of Eisav. This is difficult to comprehend, for he was being pursued and was warranted in liquidating the rodphim. The Re'em explains that perhaps certain individuals from the regiment of Eisav intended to kill other members of the family of Yaakov. In such a situation, a bystander must endeavor (if possible) to prevent the murder by wounding the rodeph in one of his limbs (whereas the intended target is not bound by such restrictions). Yaakov feared that he would kill, rather than wound, such pursuers.
Rabi Akiva Eiger (in Derush veChidush, Ketubot 33a) marshals the view of Rav Shlomo Eiger who brings a proof to this thesis. The Shulchan Aruch (Choshen Misphat 380:3) rules that a rodeph who destroyed vessels during his pursuit of the intended victim is exempt from compensating the owner for the financial loss of his vessels. This stems from the halacha of kim ley bederaba miney; an individual is not punished with death and financial compensation for one action. The Shulchan Aruch did not differentiate between the ability of wounding the rodeph (which would remove the permission to kill the rodeph thus necessitating the rodeph to compensate the owner of the vessels) and when it is not an option. Thus, the intended target is not required to search for an alternative method to prevent his own death by murder. He is empowered to kill the rodeph; subsequently the rodeph is exempt for the breaking of the vessels.
The question arises if the necessity of warning the would-be perpetrator is similar to the possibility of wounding the rodeph in a limb? Is this halacha waived for the intended target?
In regards to saving ones own life by wounding the rodeph, Rashi (Masechet Sanhedrin 57a) and the Nimukie Yosef (Bava Kama 16a on the Rif) opine that the intended target himself is required to pursue this option- if viable- rather than killing the rodeph. The Achronim quote the gemara in Masechet Sanhedrin (49a) that justifies Yoav for killing Avner. Avner was guilty of murdering Asael; despite the fact that Asael was pursing Avner with intent to kill. Yoav insisted that Avner should have wounded Asael, rather than killing him (Avner was a proficient warrior). Thus, the option of wounding the rodeph is incumbent upon the intended target as well.
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