Could There Be an Obligation for a Person to Kill Himself? (Column 471)
Without a court ruling there is no halakhic status of someone liable to death
The piece opens by arguing that the two scenarios only look similar. As long as a court has not imposed a death sentence, even someone who personally knows he sinned intentionally is not halakhically treated as liable to death, and therefore has neither an obligation and probably not even permission to commit suicide. The rabbi points to the struggle over renewing semikha in Tzfat: the very need for an authorized court in order to flog those liable to karet and release them from karet shows that punishment exists only through a valid judicial institution, not through the sinner's own knowledge about himself. From there he turns to the harder question: what happens once there was already a verdict, but no one can carry it out.
Why Zimri may treat Pinhas as a pursuer even though Pinhas acts for a mitzvah
In the sugya of Zimri and Pinhas, the Gemara says that had Zimri killed Pinhas, he would not have been executed for it, because Pinhas counts as a pursuer. The rabbi stresses how sharp this is: Pinhas is acting for a mitzvah, yet from Zimri's perspective he still has the status of a pursuer. Against the question raised by Kli Chemdah — after all, Zimri could simply stop sinning and save himself, which should look like the rule that one can save the victim by injuring a limb instead — the answer is that Zimri is not obligated to stop his sin in order to save Pinhas. This does not mean the sin is permitted; it means only that this is a matter between Zimri and God, and Pinhas cannot demand that Zimri change his conduct in order to save Pinhas's life. Therefore, as far as Zimri is concerned, Pinhas is still a pursuer. The rabbi adds that this likely creates at most permission or exemption, not a duty, and certainly does not obligate a third party to defend Zimri's right to keep sinning.
The משנה למלך builds a hierarchy between permission, right, and mitzvah in the law of pursuit
From there the piece turns to the משנה למלך, who asks whether an inadvertent killer who kills the blood avenger, or a pursuer who kills the rescuer, is judged like Zimri. His conclusion is that the issue depends on the status of the person coming to kill him: if that person acts only by permission, like Pinhas and in his view also the blood avenger, then the one who kills him is exempt; if that person acts by virtue of a mitzvah, like a rescuer who comes to stop a pursuer, then the killer is liable. The rabbi notes that the doubt regarding the blood avenger is not simple, because one might view him not merely as someone with permission but as someone with a vested right. Even so, the משנה למלך sketches a hierarchy here: the ordinary pursuer, one who cohabits with an Aramean woman, the blood avenger, the rescuer, and finally the court agent — and each stands in a different legal position regarding whether he may be killed.
Why a court agent is not considered a pursuer at all
The central point of the piece is that a court agent is different from all the earlier examples. The rabbi suggests that the משנה למלך did not even raise a doubt about him, because here there is not only a mitzvah imposed on someone else, but a public duty to execute the person who was sentenced, and the court and its agent act in the name of the whole public. Since the condemned person himself is part of that public, the duty applies to him too in a certain sense, and therefore the agent is not a pursuer with respect to him and he may not defend himself against the agent. This is stronger than the case of an ordinary rescuer: there each individual is commanded to save on his own account, whereas here the agent represents the entire public order, which includes the condemned person himself.
The conclusion on self-killing after a sentence: in principle yes, in practice not always
From this the rabbi offers a principled answer to the original question. Once there was a valid death sentence, there is reason to say that the duty to execute the condemned person applies to him as well, and therefore he is at least obligated not to sabotage the carrying out of the sentence. Still, he qualifies this: if the sentence was issued and then semikha ceased and there is no longer any system that carries out capital punishment, the public duty itself may lapse in practice, and then he no longer has an obligation to kill himself; at most one could discuss whether some permission remains. The midrash about Yakum Ish Tzerorot, who imposed upon himself the four court death penalties, is likewise not proof for an ordinary rule, because it may have been an exceptional act meant to produce a public or educational effect.
What this implies for escape from punishment: Socrates versus halakha
Finally, the piece examines what this means for escaping punishment. In Crito, Socrates refuses to flee even from a sentence he regarded as wrong, because he saw himself as bound by the laws of the city; the rabbi suggests understanding this in a way similar to his argument here, as though the duty to uphold the law applies also to the person whom the law condemns. But, in his view, halakha does not accept a fully Socratic position. The story of Shimon ben Shetach's son, who asked that a mistaken sentence not be revoked so as not to undermine public trust in the legal system, is presented as an exceptional conduct for a pressing circumstance and beyond the letter of the law, not as a binding rule. Therefore, if a person knows that the sentence against him is false, he may flee and prevent its execution; self-sacrifice for the sake of the system's stability may sometimes be a special permission, not a general duty.
The closing note: without conceptual groundwork, the legal discussion remains incomplete
The piece ends with a methodological point: a discussion of escape from custody or of obedience to law cannot rest only on secondary sources. One has to clarify the primary sources and the conceptual foundation — what civic and halakhic commitment to law really means, and in what sense a person is bound even by the carrying out of the sentence imposed on himself.
A few months ago I was asked, in the Q&A, about a person who committed an offense that carries the death penalty: is he obligated—or perhaps permitted—to commit suicide? The discussion broadened considerably, and I would like here to lay out the picture in greater detail.
A distinction between two questions
One can pose this question in two different situations:
- When there is a court (beit din) that has handed down his sentence, ostensibly the question does not arise: the court will execute him. Still, one can ask whether he may flee, or—if the court did not carry out the sentence—whether he is obligated or permitted to do so himself. A hypothetical that illustrates this is a case in which the court sentenced someone to death, and then semikhah ceased and the courts were abolished. He now has a valid death sentence upon him but no one to carry it out. In such a case, is there permission or an obligation for the person to kill himself?
- When he committed an offense warranting death but the court did not sentence him—for example, because there were no valid witnesses or the warning (hatra’ah) was lacking (though he himself knows he was fully intentional). A more likely scenario is in our times, when there are no ordained courts (semukhim) able to adjudicate capital cases. Suppose someone today committed an offense carrying the death penalty, and for the sake of discussion assume there even were witnesses and a warning, but there is no ordained court that can try him. May he, or perhaps must he, kill himself?
Below I will focus on the first question, but first a remark about the second.
Permission to kill oneself without a court ruling
These two questions look similar, but there is a decisive difference between them. The accepted halakhic principle is that as long as a court has not sentenced you to death, you are not liable to death. Even if you desecrated Shabbat with valid witnesses and a warning, and you yourself know that you were fully intentional, as long as the court has not handed down its ruling, you do not bear a liability of death. If so, then certainly you have no obligation—and likely not even permission—to kill yourself.
This principle is presented clearly in Gilyon HaShas, Makkot 5a (s.v. “Tos. s.v. ve-khen etc.”)[1], and I will not delve into it here. I will only note that this was the background to the attempt to renew semikhah in Safed in the sixteenth century (as described by Maharalbah, the chief opponent of renewing semikhah, in his “Kuntres HaSemikhah” at the end of his responsa). The primary argument of the initiators was the need to lash those who had converted under the Inquisition, thereby exempting them from karet, in light of the Mishnah in Makkot 23a:
All those liable to karet who were flogged are exempted from their karet, as it is said, “Your brother shall be dishonored before your eyes”; once he has been flogged, he is as your brother—these are the words of Rabbi Ḥananiah ben Gamliel.
In any event, it was clear to them that without ordained courts administering lashes, the offenders were not exempted from karet. Lashes of halakhic import are only those administered by a court after its ruling.
So much for the second question. We remain with the first: when a court did rule and for some reason cannot or does not wish to carry out the ruling, is there an obligation upon the person to put himself to death? To that end, I will begin with a short discussion of the doctrine of the rodef (“pursuer”).
A ‘reversed’ pursuer
The Gemara in Sanhedrin 82a discusses the rule “One who has relations with an Aramean woman—zealots may strike him,” and in that context brings the following dictum:
It was also stated: Rabbah bar bar Ḥana said in the name of Rabbi Yoḥanan: One who comes to ask [whether to act]—we do not instruct him. Moreover, if Zimri separated and Pinḥas killed him, Pinḥas would be liable for him; but if the roles were reversed and Zimri killed Pinḥas, he would not be liable for him, for [Pinḥas] is a pursuer.
The Gemara says that if Zimri had killed Pinḥas, he would be exempt, for Pinḥas has the status of a rodef. This is a significant novelty: although Pinḥas performed a mitzvah, and God Himself praises him for it and grants him His covenant of peace, he nevertheless has the status of a pursuer, and the pursued (the sinner and adulterer) has the right to defend himself against him. I will note that the language of the Gemara implies an exemption from punishment (“he is not executed for him”) rather than an outright permission.
Rabbi Meir Dan Plotsky, in his Kli Ḥemda at the end of Parashat Balak, sharpens this novelty further. There is a well-known limitation in the laws of the pursuer: the rule of “he could save [the victim] by one of his limbs.” The law of the pursuer applies when I see Reuven pursuing Shimon to kill him. In that case, I am obligated to kill Reuven to save Shimon. Of course, Shimon, the pursued, may (and perhaps must?) kill him as well. But if Shimon can be saved in another way—i.e., without killing the pursuer—there is no permission to kill him. For example, if I can injure one of his limbs so that the pursuer remains alive but the pursuit ceases, I have no permission to kill him. This is the rule of “he could save him by one of his limbs.” In the Kli Ḥemda there, he asks: why was Zimri permitted to kill Pinḥas by the law of the pursuer—after all, he could stop sinning, and then Pinḥas would not kill him. In other words, he could save himself without killing Pinḥas, and we have seen that in such a case there is no permission to kill the pursuer. He brings a fascinating answer (in the name of the Rebbe of Ger): Zimri indeed could stop sinning and thereby save himself, but he does not owe it to Pinḥas to stop sinning. A person has the right to continue sinning if he so chooses, and if Pinḥas threatens to kill him, Pinḥas has the status of a pursuer and Zimri is permitted to preempt him and kill him.
It is important to stress that Zimri’s “right” to sin does not mean he is not committing an offense, or that God will not call him to account. The argument is that this is a matter between him and God and does not concern Pinḥas. I will frame it this way: in a regular pursuer case, when I come to kill the pursuer, he can claim against me that I have no right to kill him because I can injure his leg, and that suffices to save the pursued. He is, in effect, arguing that I must injure his leg to save a life and am forbidden to kill him. But in Zimri’s case, if and when he turned to kill Pinḥas, Pinḥas cannot demand of him to stop sinning to save Pinḥas’s life. If Zimri decides not to stop sinning, that is his affair alone and not Pinḥas’s, and therefore Pinḥas’s threat confers upon him the status of a pursuer. The fact that he could stop sinning does not transform the situation into one of “he could save him by one of his limbs.”
In the past I compared this to a case where someone demands a shekel from me on pain of death. May I kill him? Certainly. Why? After all, I could give him a shekel and be saved! Is the prevention of the loss of a single shekel worth a human life?! The answer is that I have a right to my shekel and am not obligated to give it to him. Therefore he cannot demand that I hand over the shekel in order to save his life (so that I need not kill him). I am entitled to keep my shekel and not give it to him, and if he threatens me—that confers upon him the status of a pursuer. The novelty of the Kli Ḥemda is that the right to sin—although it is a forbidden act—at the legal level is similar to the right to keep my shekel and not give it up.
In passing I will note that, unlike the regular pursuer law, it is quite clear that other people are not obligated to kill Pinḥas as a pursuer—though perhaps they would have permission to do so. Even regarding Zimri, it is very likely that the Gemara speaks only of permission and not of obligation. If so, this is a special pursuer law: there is permission to kill the pursuer but no obligation. It is possible that this peculiarity stems from Zimri’s ability to stop sinning. There is certainly no obligation to kill the pursuer where killing him is not necessary to save the pursued. Even if he has a “right” to sin, I am certainly not obligated to defend that right. Moreover, since Zimri had the option to stop sinning, it may be that others would even be forbidden to kill Pinḥas. The novelty is that although there is a way to be saved without killing Pinḥas, the pursuer law still applies and there is permission to continue sinning and not to use that option. But that is, of course, insufficient to create an obligation to kill Pinḥas.
The Mishneh LaMelekh’s questions
The Mishneh LaMelekh (Hil. Rotzeaḥ 1:14) discusses, in light of this Gemara, several similar cases:
“One who sees a pursuer after his fellow to kill him… and he could save [him] but did not save—he has neglected a positive commandment… I was uncertain about an inadvertent killer with respect to whom the blood-avenger has permission to kill him: if the killer exerted himself and killed the blood-avenger, is he executed for him? It seems that he is not executed, and support for my words is [from the case of] Zimri, about whom we say (Sanhedrin 82a), ‘If the roles were reversed and Zimri killed Pinḥas, he is not executed for him’; and I still do not have a conclusive proof of this.”
He is unsure whether an inadvertent killer may kill his blood-avenger as a pursuer, similar to Zimri’s status. Note that regarding the inadvertent killer, the halakha is that the blood-avenger is not obligated to kill him: it is permission, or perhaps merely an exemption from punishment (see Rambam, Hil. Rotzeaḥ 5:9–10). It is therefore unclear what the Mishneh LaMelekh’s uncertainty is. If Pinḥas, who is fulfilling “zealots strike him”—which is certainly not merely permission but a mitzvah, or at least a matter of value—and even so Zimri may kill him under the pursuer rule, then all the more so with the blood-avenger, where there is no mitzvah and perhaps not even permission; there it would seem obvious that there is permission to kill him as a pursuer. What, then, is the source of the doubt expressed at the end of the Mishneh LaMelekh’s words?
Indeed, in the commentary Zayit Raʿanan to Yalkut Shimoni (Masei, §2988) it is written that there is a special scriptural decree that forbids the killer from killing the blood-avenger. He brings a source from the verse “and the blood-avenger finds him” (Num. 35:27): to exclude “[if] he—the killer—finds the blood-avenger.” This is a rather dubious derashah, and it seems more likely that it arises from the very permission the Torah gives the blood-avenger to kill him. In other words, the blood-avenger possesses a right to kill the killer, not merely permission; once it is a conferred right, there is no permission to infringe it, and therefore the pursuer rule does not apply here.
Afterward, the Mishneh LaMelekh is also uncertain about a pursuer who kills the rescuer:
“I was also uncertain about a pursuer after his fellow to kill him, and likewise a pursuer after a forbidden relation, where one may save [the victim] even by taking [the pursuer’s] life: if the pursuer exerted himself and killed the rescuer, is he executed for him? It seems that in these cases he is executed, for only regarding Zimri—where Pinḥas had no mitzvah but merely permission—do we say: ‘If the roles were reversed and Zimri killed Pinḥas, he is not executed’; but a pursuer after his fellow or after a forbidden relation—since there is a mitzvah to save [the victim], as our master [Rambam] wrote—if the pursuer killed the rescuer, he is executed for him. So too it may be deduced from the words of Rivo [the Ravyah] in Meisharim (n. 31, part 2): ‘If the adulterer turned and killed the zealot, even at the time of the act, he is not executed, for the zealot was [legally] a pursuer, since he is not obligated to kill him—he has only permission.’ Thus he made the matter depend on the fact that he is not obligated to kill him but only has permission. And the inadvertent killer is like the one who had relations with an Aramean woman, for the blood-avenger has permission to kill him, not a mitzvah—consider this carefully.”
Here he concludes that the criterion is whether the would-be killer is acting under permission or obligation (a mitzvah). If it is only permission—then when the target kills him, he is exempt; but if it is a mitzvah—then he is liable.
A court agent as a pursuer
When I studied these words of the Mishneh LaMelekh, I wondered why he does not raise the same question regarding a court’s agent. The very same question would seem to arise regarding a condemned man who wants to kill the court agent who has come to execute him—treating him as a pursuer. According to his conclusion the law is clear: the court agent is performing a mitzvah, and therefore the condemned person who kills him is executed. But it is not clear to me why, at the stage of the question, the Mishneh LaMelekh did not see fit to raise it also with respect to the court agent. It seems to me that it was obvious to the Mishneh LaMelekh already at the question stage that a court agent certainly does not have the status of a pursuer. This is before the permission/mitzvah criterion that appears in his conclusion.
Why was this so obvious to him? It seems the explanation lies in the obligation upon the court and its agent to execute those liable to death. The obligation to kill one who has been sentenced to death is upon the entire public. The court is the public’s agent for this purpose, charged with carrying that public obligation into practice. The court agent is the agent of the court and, through it, the agent of the entire public. If so, the obligation to kill one who has been sentenced to death rests upon the entire public, which includes each individual—and in particular the condemned man himself (for he too is part of the public). Even if he is not obligated to kill himself—perhaps because that is an excessive demand, or because a private person is not supposed to kill him in place of the court (for reasons of legal and social order)—he is certainly at least expected to cooperate and allow the authorized institutions (the court and its agents) to carry out this task. It seems to me that this is why it was obvious to the Mishneh LaMelekh from the outset that the court agent cannot have the status of a pursuer. The reason is not that the agent is performing a mitzvah (for the permission/mitzvah distinction appears only in his resolution), but that the one obligated in this mitzvah includes the condemned man himself. By contrast, the blood-avenger is not the public’s agent, and neither is Pinḥas (there is no obligation upon the public to kill the one who had relations with an Aramean woman); thus in those cases there is room for doubt. As noted, his conclusion is that when it is a mitzvah, there too the pursuer rule does not apply.
In light of this, we should consider briefly the regular pursuer case. We saw that the Mishneh LaMelekh makes the rescuer’s immunity depend on the fact that he is fulfilling a mitzvah. But according to my approach, we could say more: the obligation to save the pursued rests upon the entire public, and therefore the obligation to kill the pursuer rests upon him as well. It is therefore clear that he has no permission to kill the rescuer, for the rescuer is acting also as his agent—much like the court agent (and I argued that this is how to understand the Mishneh LaMelekh himself, as this was my explanation for why he had no doubt about the court agent). Not for nothing do some sources view the pursuer law as carrying out a death sentence upon a murderer (see Afikei Yam, vol. 2, §40).
However, upon further reflection there is a distinction to be drawn. The obligation to save is an obligation upon each individual separately, and therefore it is difficult to say that the rescuer is acting as the pursuer’s agent. The rescuer acts on his own behalf. By contrast, in the case of the court agent, we saw that he acts as the agent of the entire public, which includes the condemned man; therefore there it was obvious from the outset that the pursuer rule cannot apply to the court agent.
A hierarchy of ‘pursuers’
The upshot of our analysis is that there is a hierarchy among different “pursuer” cases regarding permission to kill them (or at least regarding exemption from punishment for killing them):
- A regular pursuer is committing a transgression. Such a person may—and must—be killed.
- Regarding the one who had relations with an Aramean woman—the rule that zealots may strike him is not an obligation but a permission (or a value). Thus a special novelty of the Gemara is required to say that even here the pursuer law applies and there is permission to kill him.
- Regarding the blood-avenger—this is a right he has to kill the inadvertent killer, and therefore it is not exactly like the Aramean case, which is mere permission. Still, the Mishneh LaMelekh’s conclusion is that they are analogous, and one who kills the blood-avenger is exempt under the pursuer law.
- If there is an obligation upon a specific individual (and not upon the entire public) to kill so-and-so, then so-and-so cannot preempt and kill that individual (for the obligation that he die is not upon himself, but upon that individual). It is hard to think of such a case, but if with the blood-avenger it had been a mitzvah to kill the inadvertent killer, that would have been such an obligation.
- Regarding the rescuer—the obligation upon each individual (but not a public obligation) is to kill the pursuer; therefore here, clearly, the pursuer rule does not apply, and one who kills the rescuer is executed for it. This is the Mishneh LaMelekh’s novelty.
- Regarding the court agent—this is an obligation upon the public (which includes the condemned man). Here, the pursuer rule does not apply even without the Mishneh LaMelekh’s criterion. Hence he does not even entertain doubt in this case.
Is there an obligation upon one liable to death to kill himself?
Recall that our discussion concerns whether there is an obligation or permission for a person liable to death to kill himself. We have now seen that, in principle, yes: the obligation to kill him rests upon the entire public and, in particular, upon himself. Usually the court will fulfill this obligation, and therefore the question does not arise. But it does arise when we ask whether the condemned may kill the court agent as a pursuer. We saw that this agent is also his own agent, since the obligation to kill him rests upon him as well; thus the agent does not have the status of a pursuer.
I will note that I am dealing here only with the first question above—that is, where there was a court ruling that obligated him to death. This is the place to note that in the case where the court ruled and then semikhah and the courts ceased, so that the condemned bears a death sentence but there is no one to carry it out, it seems that even according to my reasoning he is not obligated to kill himself. After all, capital punishments are no longer practiced in fact, and just as the public is not obligated to execute him, so too he, in particular, is not obligated to do so.
[One could perhaps discuss whether there would be permission for anyone—and for him himself—to kill him in place of the court, similar to what we find concerning a seducer to idolatry (Deut. 13:10): “Your hand shall be first upon him to put him to death, and afterward the hand of all the people” (see also Mishnah, Makkot 1:10).]
Such an act appears in Bereishit Rabbah, parashah 65, §22 (my thanks to Y.D. who brought this example in the above thread):
“And there arose a man ‘Tzerorot’; he was the sister’s son of R. Yose ben Yoʿezer, the man of Tzeridah, and he was riding a horse on Shabbat. He passed before the gallows on his way to be executed. He said to him: ‘See my horse, which my master causes me to ride; and see your horse, which your Master makes you ride [i.e., you are led to execution].’ He said to him: ‘If thus it is for those who anger Him, how much more so for those who do His will!’ He said to him: ‘Has a person done His will more than you?’ He said to him: ‘And if thus it is for those who do His will, how much more so for those who anger Him!’ The matter entered him like the venom of a serpent. He went and fulfilled upon himself the four modes of capital punishment of the court—stoning, burning, decapitation, and strangulation. What did he do? He brought a beam and fixed it in the ground and tied a cord to it, and arranged wood and surrounded them with a wall of stones and made a bonfire before it, and he stuck the sword in the middle, and kindled the fire beneath the wood beneath the stones, and he hung himself from the beam and was strangled. The fire came forward; the cord snapped; he fell into the fire; the sword came before him; and the wall collapsed upon him, and he was burned. R. Yose ben Yoʿezer of Tzeridah dozed and saw his bier flying in the air. He said: ‘In a brief hour he has preceded me to the Garden of Eden.’”
We see that a person who killed himself when he was liable to death merits the Garden of Eden. It may be, however, that there it was a special decision due to the specific circumstances in which the killing was needed. For example, perhaps there was concern that the public would disparage the prohibition of Shabbat or disbelieve that these infractions carry the death penalty, and therefore the man “Tzerorot” decided to act. Something similar appears in the famous midrash that the wood-gatherer [on Shabbat] intended for the sake of Heaven (see Tosafot, s.v. “afilu,” Bava Batra 119b). If so, we cannot derive from here that a person is obligated, or even permitted, to kill himself in ordinary circumstances.
Socratic implications
Another implication of this analysis concerns the condemned person’s permission to escape his punishment. In Plato’s dialogue Crito, we find the well-known story of Socrates, who was sentenced to death by his fellow citizens for impiety and for corrupting the youth (he would arouse doubts among the populace regarding fundamental principles). While he sat in prison awaiting execution, his disciples tried to convince him to flee and save his life. This was a punishment that, in his view, was certainly unjust and undeserved, and yet Socrates refused. He said that the law had sentenced him to death, and he must cooperate and allow them to carry out the sentence.[2]
Socrates explains there that as a citizen he is party to a social contract of obligation to the law. However, even if one is obligated to the law, this does not explain why one should sacrifice his life unnecessarily. There is no reason why the obligation to the law should not yield to the value of life. It seems that his implicit assumption was stronger: the obligation to uphold the law rests upon the entire public, and in particular upon him as a citizen of Athens. Therefore, the obligation to kill him rests upon him as well, and thus he is forbidden to frustrate the execution of that law by escaping.[3] Once the law has sentenced him to death, the value of his life lapses—also in his own view. If I am correct in this interpretation, then the logic is quite similar to what I presented above.
In Bavli Ḥagigah 16b we find a similar story about Shimon ben Shetaḥ and Yehuda ben Tabbai (the third “pair” of leaders):
“Who is the tanna of that which the sages taught? Rabbi Yehuda ben Tabbai said: ‘May I see consolation [i.e., may I die] if I did not execute a conspiring witness, to remove from the hearts of the Sadducees who would say: Conspiring witnesses are not executed until the defendant has been executed.’ Shimon ben Shetaḥ said to him: ‘May I see consolation if you did not spill innocent blood, for the sages said: Conspiring witnesses are not executed until both [witnesses] are found to be conspirers; and they are not flogged until both are conspirers; and they do not pay money until both are conspirers.’ Immediately Yehuda ben Tabbai accepted upon himself not to teach halakhah except in the presence of Shimon ben Shetaḥ. All the days of Yehuda ben Tabbai he would prostrate himself upon the grave of that executed man, and a voice would be heard. The people thought it was the voice of the executed man; he said to them: ‘It is my voice. Know that tomorrow he will die and no voice will be heard.’ Rav Aḥa son of Rava said to Rav Ashi: ‘But perhaps he appeased him [the executed man], or the case was brought again for judgment?’”
The continuation appears in Yerushalmi Sanhedrin 6:3:
“Shimon ben Shetaḥ’s hands were hot [to execute justice]. A group of scoffers came and said: ‘Let us give counsel—let us testify about his son, and he will execute him.’ They testified against him, and his sentence was concluded. When he went out to be executed, they said: ‘Master, we are liars—his father is seeking to reverse [the verdict].’ He said to him: ‘Father, if you seek to bring deliverance through your hands, make me as a threshold [and carry out the sentence].’”
Those scoffers knew that Shimon ben Shetaḥ was “hot” to carry out the law. They decided to testify falsely against his son, and indeed his sentence was concluded. When he was taken out to be executed, it became clear that the testimony was false, and Shimon ben Shetaḥ thought to annul the sentence. His son asked him to carry it out nonetheless, so as not to undermine the credibility of the halakhic judicial system. This appears to be a truly Socratic act.
But upon further reflection, it is not exactly like Socrates’s deed. There is no statement here that an erroneous ruling is binding and must be carried out. In the Talmud it is presented as conduct beyond the letter of the law due to a time of need (concern for undermining the judicial system). By Socrates’s lights, he should request to be executed in any case, regardless of the circumstances, because that is the formal law even if substantively it is clearly wrong and unjust.[4] Moreover, since these are special circumstances, it is clear that Shimon ben Shetaḥ’s son was not obligated to do this. It was a permission, not an obligation—unlike Socrates.
The conclusion is that the Socratic approach is not truly accepted in halakhah. If it is clear to me that the sentence passed upon me is false, I am certainly permitted to flee and prevent its execution. My obligation is to uphold the law when it is truly the law. But there is no obligation to sacrifice one’s life to uphold an incorrect ruling—unless special circumstances prevail that justify such self-sacrifice. And even then, it is likely a permission rather than an obligation.
A closing remark
In passing I will note that in the thread above there was a link to an article by Shai O. Wozner, “The Offense of Escape from Custody,” which discusses this matter at length. I commented there that, as far as I saw, he does not bring primary sources and lacks conceptual analysis; he relies mainly on secondary sources. In my opinion he should have discussed it in light of the story of Shimon ben Shetaḥ’s son, the story in Bereishit Rabbah cited above, the inference from the Mishneh LaMelekh mentioned above, and more, and of course also addressed the fundamental theoretical basis of this matter—namely, the basic legal obligation upon every citizen to uphold and carry out the law, and in particular the law that sentences him himself (to death, prison, etc.).[5]
[1] He does leave the Tosafot there in need of clarification; it would seem that Tosafot did not accept this principle.
[2] See an interesting discussion here regarding truth versus the value of life in Plato and in Galileo.
[3] Of course one can further analyze, for this obligation itself could be said to yield to the value of life. It seems to me that this obligation overrides the value of life; otherwise the citizens themselves would also not be supposed to execute him.
[4] See my article on scriptural decrees (gezerat ha-katuv), where I noted a similar situation when a person is executed because his witnesses were later disqualified as close relatives. I argued there that a court that would execute him by virtue of a scriptural decree is a court unworthy of adjudication. On disqualification of relatives, see also my “Kuntres HaMigo.” See Ali Tamar on that Yerushalmi sugya, who noted that this is the message here; he wrote similarly regarding the stories of Achan mentioned earlier there and of Zechariah ben HaKatzav. See also Yafeh Mareh to the Yerushalmi there.
[5] This is another example of the importance of first-order halakhic analysis over second-order analysis. See also the end of Column 469 on this point.
Discussion
Such an obligation would mean that a “righteous” person who murdered would kill himself, while a wicked person would not. And thus the number of wicked people in the world would increase.
Not correct. I wrote that there it was under special circumstances. At most, your comment strengthens the claim that this is not the normal mode of conduct.
Thank you.
A question: if a court became convinced that a person had repented, is it still obligated to execute him?
One can question whether by killing oneself one can fulfill the obligation of a court-imposed death sentence at all, even when the verdict has already been rendered and the Sanhedrin is in its place.
For death at the hands of others is a harsher punishment, and one who kills himself has not received the disgrace of death at the hands of others, which is (perhaps) part of the law of execution.
As an aside—we see that in countries where the death penalty is practiced, the authorities make efforts to prevent the condemned person from committing suicide and “erasing himself” from the punishment. Even in Israel they guarded Eichmann 24 hours a day lest, Heaven forbid, he kill himself. Because the disgrace of being put to death against one’s will by others is greater.
And who knows whether one who destroys himself fulfills at all “and the hand of all the people shall be against him at the end, and you shall remove the evil from your midst,” when he himself is the evil being removed from among others.
With God’s help, 1 Iyar 5782
On a similar subject, Muslim halakhic decisors disputed the question of whether a woman may be a “shahida.” Sheikh Yusuf Qaradawi ruled that she may, whereas Sheikh Ahmed Yassin determined that a woman may not be a shahida unless she has committed a grave offense for which one is liable to death; then she may atone for her sin through martyrdom in a mandatory war.
Regards, Shams Razal, Qubbat al-Najma
In my humble opinion, even as a “shahida” a woman must preserve her “the dignity of the king’s daughter is inward,” and if she wishes to blow herself up—she should do so inside her home…
A. The Gemara about Zimri and the Mishneh LaMelekh about the blood-avenger deal with a punishment such that if the pursued turns around and kills the pursuer, he is not executed; but it is quite possible that they are forbidden to turn around, and only there is no punishment—like one who violates one of the three cardinal sins because of danger to life, where it is forbidden but he is not punished. Therefore, it would seem prima facie that in halakhah too, one who kills an agent of the court is not executed for it, like anyone who violates one of the three cardinal sins because of danger to his life. From the formulations in the Tur, it was not entirely clear to me whether you tie the punishment to the prohibition; could you please clarify? And do you think (not only according to the Mishneh LaMelekh) that one who kills an agent of the court is indeed executed for it more than one who commits a forbidden sexual act under danger to life, and why?
B. The reasoning about the shekel can be understood from the standpoint of a categorical-consequentialist imperative: it is obvious that the general rule must be permission to kill over the shekel, for otherwise the repair of the world is nullified, and there is no doubt that this is how a good and upright supreme legislator would legislate. But regarding Zimri, it makes neither sense nor scent that Zimri has to move his hands in a certain way so as to save himself specifically by striking one of Pinchas’s limbs, but is not obligated to move his body in another way so as to withdraw. If you connect the two, that means that you view the matter of the shekel as something deontological in itself even without connection to the consequentialism hidden in the general rule, and that is also how you understand the territorial considerations you defined elsewhere (in my view, that is wickedness). The difficulty from the Gemara about Zimri can be resolved in other ways (and if there is no resolution, then it remains difficult, no more).
C. A marginal point, but I didn’t understand something regarding ordination in order to administer lashes and exempt those liable to karet. Surely it is clear that most, or at least some, of the karet offenses were committed without warning and witnesses; rather, at most, the offenders now present themselves as wicked for past deeds and now wish to repent. If so, there is no Torah-level liability to lashes and also no obligation on the court (or: permission) to administer lashes, and yet that would help exempt from karet—but only if the judges are ordained? What is the logic of that combination?
D. Zimri is committing an offense, and if he withdrew and Pinchas killed him, Pinchas would be executed for it. But a pursuer is not at this moment committing an offense; rather, we infer from what is in his heart that he is pursuing in order to kill. But if the pursuer has decided not to kill, then in truth he is like Zimri after withdrawal, except that the rescuer who kills him is exempt, because according to his knowledge it is his duty to kill.
In such a case, if the pursuer knows that he has decided to desist but has no way to make this clear to the rescuer, may he turn around and kill the rescuer? And if he did turn around, what is his status? [Prima facie it is obvious that if the rescuer is mistaken about the facts and thinks there is pursuit, whereas the “pursuer” came with the knife only to perform emergency surgery, and the rescuer comes to save, then the “pursuer” is certainly permitted to defend himself and kill him.]
If he is exempt, then ostensibly any pursuer who turned around would be exempt by claiming that he had decided in his heart to desist from killing and was only continuing the pursuit. [Even if you answer that such a pursuer who changed his mind is forbidden to kill the rescuer, who from his perspective is rescuing justly and as a mitzvah, and if he killed the rescuer he is liable for it; or that in any event he is not believed at all in the claim “I withdrew in my heart”—one could say by way of pilpul that this is the initial assumption in the Mishneh LaMelekh: that a pursuer who turned around is exempt, whereas a condemned person who turned around is liable, and thereby we find a distinction between one who rescues the pursued and an agent of the court sent to kill.]
A. I noted the distinction between the transgression and the punishment. But by logic it seems obvious that in the case of an agent of the court this is also a transgression and there is also punishment. It is ordinary murder, and he is not considered coerced.
B. Indeed, correct. I do not see this as a consequentialist consideration (or not only consequentialist). I also think that such a consideration is not enough to generate the law of Zimri.
C. Indeed, I wondered about this in the past. Perhaps there were some who had indeed transgressed with witnesses and warning, or they thought that if the people acted intentionally they could be flogged even without warning (warning was only given in order to distinguish between inadvertence and intent; a scholar does not require warning). And perhaps one can even administer lashes in order to exempt from karet even to someone who is not liable to lashes as a punishment.
D. I don’t know. There is reason to think that if he is misleading the rescuer, it is unreasonable that we would allow him to kill him. Of course, if the rescuer makes an irrational decision not arising from the circumstances, then it is permitted and required to kill him. He is an ordinary pursuer, even if acting in good faith (like a minor pursuer).
A. What is the difference between someone whom a gentile coerced to worship idolatry (or to kill a certain person) on pain of being killed, and he transgressed and worshiped, about whom Maimonides wrote that he is exempt from punishment even though he is forbidden to worship—and someone who kills an agent of the court, who according to you is liable to punishment since he is forbidden to kill?
I got up and encouraged myself to look in the treatise on ordination to see whether they contemplated administering lashes without warning, and behold, the treatise is exceedingly long, as far as a cannon shot, but I leafed through here and there, read a little and understood a little, and I am summarizing the (small) part of the discussion between Maharalbach and Mahar”i Beirav that touches on the matter of lashes without warning, from what I found.
1. The Ralbach argued that even if ordination were to take effect, it would not help for lashes when there are no witnesses and warning (and this is apparently the vast majority of cases): “their agreement will not avail to attain their purpose,” because there is no warning; and he explains this in three ways, “all of them true”:
A. Without warning there is no punishment of lashes upon him at all, only karet, and therefore lashes cannot exempt him.
B. Even if lashes would exempt, the court is not permitted to administer lashes without witnesses and warning; and even if a person may waive the suffering of his body and be flogged at his own request, he has no credibility to declare himself wicked, so they will not flog him, and one must not do something that appears as though they believe him to make himself wicked—especially since there is concern he may die, and this he cannot waive.
C. Since he comes on his own and the matter depends on his own will, the shame is lessened, because one ashamed by himself is not like one ashamed by others; and thus “your brother is degraded before your eyes” is lacking, and therefore it is not certain that he is exempted from karet.
2. R. Jacob Beirav argued that admittedly when one comes by way of repentance there is no coercion by the court, but it is an a fortiori argument (and even Ralbach sensed the force of the a fortiori): if with witnesses and warning one is exempted from karet through lashes, then all the more so without witnesses and warning one is exempted from karet through lashes. He brings proof from the Geonim and from the Rama that lashes are administered by way of repentance to lighten the sin (and from the Geonim it implies even without ordained judges). And he sharpens the point that if he merely confesses the transgression but does not desire punishment by way of repentance, then he is not flogged.
3. Ralbach held to his view that the a fortiori is refutable because of those three points.
4. Mahar”i Beirav said that lashes were not the purpose of ordination but one of its very smallest branches, and he rejected Ralbach’s words.
A. It seems, as I understand him, that even without warning there is an abstract liability to lashes, except that it cannot be actualized, and it exempts from karet—and this is by force of the above a fortiori, that it cannot be that one who acted intentionally with warning has a green track for exemption from karet while those lighter than him do not.
B. The court can indeed administer lashes by way of repentance according to custom and the Geonim, and the Rif cited the laws of ordination and lashes, even though he cites only what is practiced nowadays; this implies that in the Rif’s view one can administer lashes and one can renew ordination.
C. I did not find that R. Jacob Beirav answered Ralbach’s reasoning that one ashamed by himself lacks “your brother is degraded before your eyes” (this reminds me of your reasoning, Rabbi Michi, that a person cannot make himself wicked and thereby invalidate a relative, because “punishment” has to come from outside), though perhaps I missed it.
5. (I got tired).
[My personal impression at the moment is mixed. On the one hand, by my tiny intuitive feel for the ways of the Gemara, Ralbach seems right. But the logic is apparently on Mahar”i Beirav’s side, and he seems to have brought a tremendous proof from the Geonim, and according to him this was the practice of all the sages of Spain and of all the sages of Israel in our time, to administer lashes by way of repentance. Except that I did not find that R. Jacob Beirav explained whether and why ordination helps more than lashes in a laymen’s court when one comes by way of repentance.]
1) If I understood correctly, your conclusion is that indeed a person may kill himself when a court has ruled that he is liable to death. Right?
But what about the prohibition of suicide?
2) You argue that the condemned person may kill himself and may not kill the court’s agent because “the obligation to kill him rests on the whole public and in particular on him as well.” Prima facie I disagree. One could say that he has no obligation to carry out the execution, only a responsibility that it take place. So perhaps it is true that he may not kill the agent, but he also may not kill himself.
3) How can it be understood that someone who is fulfilling God’s will should have the status of a pursuer?!? That seems absurd on logical grounds, no?
And I thought to explain it on the basis of what you conceptualized as “halakhic territory,” in which one can say that even considerations of God’s will cannot infringe the territory. Does that seem right to you?
With God’s help, the Festival of Freedom, 5782
To Alexander of Macedon’s question, “What should a man do and live?” the people of the Negev replied: “Let him kill himself” (Tamid 32a). A person need not kill himself in order that his sins be atoned for. His test is his ability to “kill himself” by restraining his desires and lowering his pride.
It is very easy for a person to give up his life in a heroic act. It is much harder for a person to live a steady life of self-control and restraint. Sometimes it is very hard to part from habits and powerful desires, but when one succeeds in this one merits a long and happy life.
Not for nothing is the symbol of freedom the simple matzah, “the bread of affliction,” made of flour and water and kneaded plainly. The willingness to make do with little—it is that which circumcises a person from becoming enslaved to nonsense that will only get him into serious trouble.
Regards, Hillel Feiner-Gluskinos
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… “What should a man do and live?”, they replied…
I wrote the explanation in the post. Since the obligation to kill him rests on himself as well.
I think the lashes administered by the Geonim without a court were not the 39 lashes of the court, but rather afflictions that atone, like the lashes practiced by the German Pietists.
Regarding lashes that exempt from karet, I have long wondered whether this is an independent law that lashes are administered in order to exempt from karet (in which case one can administer lashes even without liability under the law of lashes), or whether one who receives lashes because of a liability to lashes is thereby exempted from karet. Prima facie the understanding is the latter, but there are places that imply the former.
By the way, a person does not need to declare himself wicked. If they saw him apostatize, there is testimony that he is wicked. And regarding his having acted intentionally, they may testify that he is at least a Torah scholar who knows that one may not worship idolatry and apostatize. Therefore the claim that he has made himself wicked seems to me very weak.
I did not understand how this relates to punishment when he is coerced because of danger to life. Maimonides’ language (Foundations of the Torah 5:5): “because he transgressed under coercion, etc., the court does not put him to death, even if he killed under coercion.”
1-2. What about the prohibition of murder? How can the court execute him? Clearly, once there is a death verdict there is no prohibition of murder, and by the same token no prohibition of suicide either. But in any case, I did not say that such a person may or must kill himself. What I said is that he may not kill the court’s agent who comes to kill him. As for the question whether he may kill himself, that is not clear.
3. Absolutely. In my articles on territorial considerations, this was one of the examples.
I explained. The obligation to kill himself rests on him as well, and therefore he is not coerced. It is not like the obligation to give up one’s life for the three cardinal sins, where the obligation is to surrender one’s life and not to kill oneself.
By the way, it may perhaps be that there is a prohibition against killing the court’s agent but no punishment. But my view inclines to there being punishment as well, as above.
I still do not understand how and why you connect between what a person is obligated to do and the question whether he is considered coerced with regard to punishments. (Prima facie this is not similar to the laws of menstrual cycles that you brought elsewhere—where if one violated the decree to keep away and then failed by drawing near, he has no coercion exemption regarding the Torah prohibition.) What is the connection between the two issues?
Simple commonsense reasoning. If a person is obligated to kill himself, it is unreasonable that he should be considered coerced and be allowed to kill the one whom he himself sent on the mission. When we tell a person to kill himself, we are telling him that his life has no value and must disappear from the world. Consequently, he is not coerced when his life is threatened.
Prima facie one can challenge the reasoning that the condemned person himself has a commandment to kill himself, for then it would follow that the son grants his father the merit of a mitzvah 🙂 One may further discuss that one who killed his relative accidentally could become the blood-avenger who kills himself. In any case, to my “layman’s view,” it seems far-fetched that a person should be charged with being an “agent of the court” to flog or kill himself.
Regards, Otiphron Nepishtim Halevik
And perhaps for that reason the Torah did not allow punishment on the basis of a relative’s testimony or a person’s own testimony: the Torah did not impose upon a person something that is in direct frontal contradiction to his natural feeling. One exception was the Levites, who were commanded, “Each man kill his brother, his companion, and his relative”; but this appears to be because of the gravity of the sin of the Golden Calf, which was liable to bring a decree of destruction upon the entire nation, and the killing of relatives was intended to save the whole people.
Regards, A.H.
With God’s help, Independence Day 5782
Since the halakhic force of Independence Day derives from the law of “Purim,” that one should celebrate the day when the public was saved from death to life, it occurred to me that among the mitzvot of the day is also to conduct “Purim-Torah” inquiries, and therefore it seems to me that this is the place and the time to raise an inquiry on the matter of “a person’s obligation to apply to himself the law of ‘they are lowered and not raised.’”
And the reasoning is according to the one who says that a person is obligated on the practical plane to observe the laws of the Talmud, but is not obligated to accept the beliefs and opinions of Hazal. According to this approach, there is room to say that a person may choose not to believe in providence, the coming of the Messiah, and the resurrection of the dead; but since according to Talmudic law it is a commandment to apply to people with such views the law of “they are lowered and not raised”—it would appear that he is obligated to apply to himself the law of “they are lowered and not raised” 🙂
It requires great practical consideration, and one who is stringent not to apply to himself the law of “they are lowered”—it seems to me he has what to rely on 🙂
Regards, Shealtiel Chayyf Blau-Weiss Hakechloni
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And the reasoning is according to the one who says that a person is obligated to observe on the practical plane the laws of the Talmud, but…
Precisely that layman’s intuition led me to distinguish between the obligation actually to kill oneself and the obligation not to prevent the act from being carried out by an agent of the court.
And of course also not to drink from his own wine, obviously.
With God’s help, 19 Omer 5782
Regarding touching his own wine, one of the rabbis of the Budapest community, Rabbi Prof. Abraham Naphtali Zvi Roth (later rabbi of the state of Hesse), already discussed this in connection with a question from the Jewish hospital in Budapest whether it is permitted to serve wine to a hospitalized person who publicly desecrates Shabbat. Rabbi Roth replied that the purpose of the prohibition of the wine of a public Shabbat desecrator is that people separate from him, and therefore he is not obligated to separate from himself.
According to this reasoning, one may say that the condemned person himself cannot fulfill the mitzvah of “you shall remove the evil from your midst” by killing himself, for he will continue to be connected to himself in life and in death. Only others who remain alive can separate from him by killing him.
There is only one way in which the sinner can remove the evil from within himself, and that is through repentance. And according to the local rabbi’s view that complete repentance exempts even from a court-imposed death sentence—it may be said that the condemned person himself, who knows that he has repented with all his heart, is thereby exempt from the death penalty, and only the court and its agents, who were not convinced of the sincerity of his repentance, are obligated to continue carrying out the sentence; but he himself, knowing that he has repented with all his heart, may not carry out the sentence on himself.
As for the prohibition against preventing the court’s agent from carrying out the sentence: this derives from a person’s general duty to fulfill “and you shall do all that they instruct you,” and included in a person’s duty to accept the discipline of the court is the duty not to interfere with or delay the court’s agent.
Regards, Shealtiel Chaim Blau-Weiss Hakechloni
Nice. I did not know that. I myself once wrote this very argument as a basis to permit drinking one’s own wine. Since he has already passed away, I will bless in his name and thereby discharge him of the obligation: Blessed is He who directed him to my broader view.
Since Rabbi Abraham Naphtali Zvi (Ernst) Roth fled from Hungary to Germany during the revolt of 1956, it may be assumed that his responsum to the Jewish hospital in Budapest regarding giving wine to a public Shabbat desecrator was written before 1956—that is to say: before you were born.
Some of his writings appear in the catalog of the National Library, available online, where his life dates are listed (1908-19919). He was married to the sister of my father, Prof. David Shmuel Levinger of blessed memory, who perished in the Holocaust, and in a second marriage he wed a convert of German origin, whom he met while serving as rabbi of the Frankfurt am Main community and of the state of Hesse. After his passing, his rich Torah library was transferred to Mossad HaRav Kook.
Regards, Chashbah
On the Din website, Rabbi Shmuel Baruch Ganot answered the question “A Jew who does not keep Shabbat—may he drink wine that he himself touched?” Among other things he cited Rabbi Moshe Feinstein’s opinion that the prohibition on drinking wine touched by a public Shabbat desecrator is based on custom, and we do not find a custom not to let him drink wine that he himself touched. Rabbi Nissim Karelitz likewise wrote that since the prohibition of a public Shabbat desecrator’s touching wine is a penalty meant to distance him, it is not relevant to obligate him to distance himself from himself. But Rabbi Yosef Klopt, head of the rabbinical court in Haifa, held that “we do not distinguish,” and it is forbidden even regarding his own wine.
Regards, Chashbah
I did not understand why one needs the Mishneh LaMelekh’s novelty to say that it is forbidden for someone to kill the rescuer. It seems obvious, since the rescuer comes to kill the pursuer in order to protect the pursued, and if someone kills the rescuer under the law of pursuer, then he is also indirectly killing the pursued; and from the outset this whole case is about protecting the pursued.
There is no contradiction. The rescuer has permission to kill in order to save the pursued. But it may be that at the same time the pursuer has permission to kill the rescuer in order to save himself. Pinchas too has permission to strike Zimri under the rule “zealots strike him,” and Zimri has permission to defend himself.
Very enlightening, thank you very much!
1. At the beginning of the post it was explained that, on the one hand, liability to death comes only after a court ruling; there is no liability to death without a court. But on the other hand, once there is a court ruling you argue that the condemned person is obligated to cooperate with the court. Prima facie this is difficult, because it implies that liability to death is a behavioral rule instructing the defendant how to act; if so, why do we need to wait for a court ruling in order to make him liable to death? It is like a borrower who borrowed money: he has a behavioral rule to repay the loan, and that rule (the law, the halakhah) applies even without a court. To be sure, I can agree that in order to carry out and actualize the death liability (that is, to kill the condemned person), one needs a court (because of institutional and social considerations, otherwise every person would take the law into his own hands), but on your view it would still follow that he has a metaphysical status of being liable to death (in your terminology: there would be no legal imposition of death liability upon him, but he would nevertheless be liable to death). And prima facie this is not so; from the halakhic sources the impression is that the person is not liable at all before the verdict—nothing whatsoever rests upon him!
A practical implication that emerges from your view (that being liable to death includes a behavioral rule requiring the person to cooperate and allow the court to carry out its sentence) is that a person who committed an offense must turn himself in to the law-enforcement authorities so that they may punish him. But we have neither seen nor heard this. It seems better to say that liability to death is a rule of adjudication instructing the court how to rule, and it imposes no behavioral rule at all on the defendant. It is not because he was convicted in court that he has a duty to cooperate. That is the naturalistic fallacy.
2. What bothers you or prevents you from understanding the criminal laws as rules addressed to the court and instructing it how to punish the offender, while this does not mean that the defendant is obligated to bear his punishment? Moreover, analytically the concept of punishment does not include an obligation upon the punished person to accept his punishment willingly and with a glad heart.
3. You explained that according to the Mishneh LaMelekh it is obvious that the court’s agent would not have the status of a pursuer, since he is the agent of the whole public, and in particular of the condemned person, and therefore the condemned person also must ensure that he will indeed be liable to death. But this is a rather dubious leap: the court is the agent of the public as a society (a social-juridical arrangement), not as an aggregate of individuals, and it is entirely possible that on the one hand the court must fulfill its mission and carry out the execution of the condemned person, while on the other hand the condemned person may flee or try to save himself.
4. You explained that it could be that the blood-avenger has a right to kill the killer, and therefore he would not have the status of a pursuer. First, the leap from the Torah’s permission for the blood-avenger to kill the killer to the claim that he has a right to kill him does not seem plausible. Second, the killer too has a right to defend his life, and from his point of view the blood-avenger has the status of a pursuer! Who says that the blood-avenger’s right of vengeance overrides the accidental killer’s right to defend himself? The proof is that if there truly is no permission to infringe the blood-avenger’s right, why are there cities of refuge? Rather, perforce we see that the killer too has a right to defend himself, and from that point of view, from his perspective, the blood-avenger has the status of a pursuer.
5. At the end you wrote: “If it is clear to me that the ruling issued against me is false, then surely I may flee and prevent its execution.” But why? You already explained that the court and the legal system have formal authority, and even if I do not agree with the ruling I am obligated to comply with it.
1. You assume a great many assumptions, and I do not know from where you drew them. Liability to death exists only after a court ruling, and after the ruling the obligation rests on him too. Why does the claim that the obligation exists only after the ruling mean that it does not rest on him too? I do not see the connection. I also do not understand why you assume that he has no duty to turn himself in. It is entirely plausible that he does, though I can perhaps understand someone who argues that he does not. But I would not build any objection on that.
2. Every court acts in the name of the public. It is a public institution and not merely a collection of people. Why should those people be tasked with killing a person if there is no obligation to kill him? There is certainly no obligation to accept the punishment joyfully and with a glad heart; he is obligated to be punished.
3. That seems very forced to me. The public is the totality of the individuals. Otherwise no individual has any obligation, so how will the public obligation be fulfilled? Think about the commandment of Hakhel. It is an obligation on the public, but each individual is exempt from it. So how is it to be fulfilled? I explained here in the past that for this reason women too are obligated, even though it is time-bound, because the obligation is on the public. And I also explained how it is possible that the commandment is fulfilled by the public and yet there can still be a person who neglected it (one who did not come to Jerusalem). See post 254.
4. Possible, and the opposite is also possible. I did not state this definitively. But the cities of refuge prove nothing. It may be that he has the right to defend himself within the cities of refuge, but not to kill the avenger.
5. Because I know that the court erred, and therefore its ruling is mistaken and invalid.
1. Regarding this, you wrote in the post: “The accepted rule in halakhah is that as long as a court has not sentenced you to death, you are not liable to death.” And I did not understand: prima facie I would say that a person who desecrated Shabbat, for example, is inherently liable to death (the offense entails the liability), except that only the court can impose it—meaning, only the court can bring into effect the liability that already rests on the offender. The court merely uncovers the death liability; it does not create it. Am I mistaken here?
5. I did not understand your answer. The court has formal authority, and so we are obligated to accept what it rules even if we do not agree.
1. You are definitely mistaken. That is exactly what I wrote.
5. When a court errs manifestly, the ruling is not considered a ruling at all and therefore is not binding. This emerges from the sugya regarding a judge’s obligation to pay when he erred. If he erred in an explicit mishnah, the ruling does not exist at all, as opposed to an error in legal judgment. Therefore the absurd result follows that in an error regarding an explicit mishnah he is exempt from paying, while in an error in legal judgment he is obligated.
1. Could you point me to where I can look into this principle?
Many have discussed it. A foundational source is Rabbi Akiva Eiger in his glosses to the Talmud, Makkot 5a (though Tosafot there seems different). See also the later authorities there who debated his words.
Does the law of pursuer also apply to a deaf-mute / imbecile / minor (or more generally to a pursuer lacking awareness)? That is, may the pursued kill him?
Or even: does it apply to someone who has awareness but no criminal intent, such as a soldier who fires at his fellow thinking he was one of the enemy—does he have the status of a pursuer?
Of course, the question is being asked in the extreme case where the pursued has no other option but to kill the pursuer in order to save himself.
Definitely yes. The amoraim disputed this in the Gemara regarding a minor pursuer, and the halakhah rules that he has the status of a pursuer. This is also seen in the Mishnah about a woman having difficulty giving birth in Ohalot.
Fine from the halakhic perspective. But what do you think from the moral perspective? What is the justification for preferring the life of the attacked person over the life of the attacker?
And a more general question:
One must be killed rather than transgress murder because of “Who says your blood is redder?”
In a case where indeed one blood is redder—such as a righteous person versus a wicked person—is it permitted to prefer the life of the righteous person?
Because the attacker must bear the consequences of his actions even if he is not culpable for them. Certainly more than another person who ought not suffer because of him.
Only when the gap is extreme. Usually the decisors write that human life has infinite value, and therefore it is impossible to create a hierarchy. Even between temporary life and full life (though here there were those who wanted to prefer full life). For example, I argued that one who is brain-dead certainly should be killed in order to save another person for a full life, even on the view that brain death is not death. See my article on harvesting and transplanting organs.
According to the Rosh, only Zimri was allowed to kill Pinchas, but others were not:
“But another person would be executed for killing him, because he is not a full pursuer, since he acts with authorization. And only to Zimri was it given to save himself at the cost of Pinchas’s life, but not to any other person. For every person was given permission to kill Zimri; therefore he has no permission to save him at the cost of Pinchas’s life.”
In Klei Chemdah there he brought such views, but for a different reason. Some of the Rishonim hold that the obligation to save by injuring one of his limbs applies only to a third-party rescuer, not to the pursued himself.
The Rosh’s reasoning is very sensible even on my approach, if only because only Zimri can decide to continue sinning and defend himself against Pinchas.
You have brought an anecdote that proves the opposite.
At first you said straightforwardly that in a case where there is no court ruling, it is not defined at all that the person is liable to death; only the ruling obligates him.
But in the end you brought the story of Yakum Ish Tzerorot, where there certainly was no court ruling, and if one can learn from that, then one can also learn regarding anyone who committed an offense that makes him liable to death, that he may or should kill himself.