Could There Be an Obligation for a Person to Kill Himself? (Column 471)
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.