Between Guilt and Responsibility (Column 723)

The distinction between guilt and responsibility has been mentioned more than once here on the site. I now think it is worth dedicating a systematic discussion to it, especially in light of the “pursuer” (rodef) topic, where it arises naturally.

A brief discussion of the law of the pursuer (rodef)

The law of the pursuer states that if Reuven is pursuing Shimon to kill him, anyone who sees this is commanded to kill Reuven in order to save Shimon. At first glance, this is obvious and accepted the world over. But within the halakhic framework it is puzzling, because of its relation to the rule that for murder one must be killed rather than transgress (see, for example, in this article and in columns 627, 635, and more). One of the three cardinal sins is murder, about which it is stated that one must give up one’s life rather than transgress; in other words: one may not save oneself at the cost of another’s life. The Talmud’s reasoning is: “Who says your blood is redder? Perhaps this man’s blood is redder.” That is, you cannot prefer your own life over your fellow’s.

In several places I brought the words of Tosafot who wrote that, to the same extent, another’s life is also not preferable to mine. For example, if someone throws me from a roof and I am about to fall on a person lying on the ground—killing him and thereby saving myself (he cushions my fall)—I am not obligated to twist myself aside and die to save him. The reason is that his life is not preferable to mine, and I am not expected to sacrifice my life to save his. The upshot is that in these situations there is a clash between two equal values (the lives of two people), and in such a case the rule is: “sit and do nothing.” When there is a clash between two equal values, we must leave the situation as it is and refrain from action. Therefore, if I am falling, I am not obligated to divert myself to save the other; we should leave the situation as it is. By contrast, if I am threatened to kill the other in order to avoid being killed, again I am forbidden to kill him, for I must cease any active measure and leave the situation as it is.

Let us return now to the law of the pursuer with which I opened. In the columns and article mentioned I noted that there appears to be a contradiction between the law of the pursuer and the prohibition against saving oneself with another’s life. If indeed Reuven’s blood is never redder than Shimon’s, why is it permitted (indeed, obligatory) to kill the pursuer to save the pursued? In what way is the pursued’s blood redder than the pursuer’s? Intuition says there is a clear difference between the two cases, and below I will offer several formulations that propose an explanation. But first, to the Mishnah about the pursuer.

The Mishnah of Rodef

The Mishnah in Sanhedrin 73a discusses the law of a pursuer:

“These are they whom we save with their lives: one who pursues his fellow to kill him; and [one who pursues] a male [for sodomy]; and [one who pursues] a betrothed maiden. But one who pursues an animal [for bestiality], and one who desecrates the Sabbath, and an idolator—we do not save them with their lives.”

Already from the Mishnah’s language, “we save them with their lives,” it emerges that killing the pursuer is to save him, not the pursued. Moreover, the very fact that an idolator and a Sabbath desecrator are listed suggests that the killing in these cases would be to save the offender from sin. For there, there is no pursued person and no other reason to kill the offender. It is true that ultimately, in these cases, we do not kill the offender, and one might say that this is precisely the Mishnah’s novelty: that the killing is not to save the offender himself but to save the pursued; and precisely for this reason, the Sabbath desecrator and idolator are not included in the law of rodef. Still, the Mishnah’s wording and its initial assumption indicate otherwise.

Indeed, Rashi on the Mishnah writes this explicitly:

“These [we save]—from sin. ‘With their lives’—they were given over to be killed by anyone, in order to save them from sin, and this is derived from verses.”

It seems he understood that this is not merely an initial assumption but the Mishnah’s law: the killing is done to save the offender himself. So why, for a Sabbath desecrator or an idolator, is there no such law? Regarding Shabbat, this could be understood, since it is not one of the “be killed rather than transgress” sins, and perhaps for that reason we do not kill the offender. But idol worship does belong to that list (unless the Mishnah follows R. Ishmael who holds there are only two cardinal sins and that there is no “be killed rather than transgress” for idolatry—this is forced; this Mishnah is ruled as law).

But even if we speak of the three cardinal sins, it is still unclear why we should kill the offender. Why not bring him to be judged by a court to punish him accordingly? One might have reasoned that since for these sins the person must give up his life rather than transgress, we say that anyone may kill him to prevent him from sinning. If the sin has already been committed, he should be brought to court; but if it can be prevented in advance and he can be “saved with his life,” then his death is in the hands of anyone. True, for idolatry and Sabbath desecration we are presumably speaking of cases where the sin has already been committed, but it is reasonable that the idea would be to kill them to prevent future transgression. And perhaps precisely for this reason we do not kill them—because the sin was already done.

But the simpler explanation is that in all these cases the killing is to save the life of the pursued or to prevent harm to him, not to save the pursuer from sin. Therefore, in the case of an idolator or Sabbath desecrator, we do not kill him, since there is no pursued to save. This does push against the Mishnah’s language, but from sevara (reason) it seems more plausible. So why did Rashi (and the Mishnah’s plain reading) need to invoke sin at all?

It is reasonable to link this to the question we raised above. Because in a pursuit there is equality between the pursuer’s life and the pursued’s life, we need a justification to kill the pursuer. Saving the pursued is not sufficient justification, since the rule is that we do not harm one person to save another. Preventing the sin offers a natural solution: we kill the pursuer because he is about to commit a sin.

In the next section I will bring several possible explanations of the law of the pursuer and its relation to the rule that a person may not save himself with his fellow’s life.

Possible resolutions

I will list five directions:

1. In a balanced situation, we weigh the costs of the two options before us, and any consideration, however small, can tip the scales. The first option is to kill the pursuer. In doing so, one person (the pursuer) will die, but his act of murder will be prevented; this is preferable to the second option of leaving things as they are. If we leave the situation, one person (the pursued) will die and the sin will be committed. Moreover, if we allow the pursuer to kill the pursued, the court will execute him as punishment. In such a scenario, two people will die rather than one. All the more so it is preferable to choose to kill the pursuer.

Note that according to this explanation, the “sin” consideration only decides the dilemma; it is clearly not sufficient by itself to justify killing a person. We do not kill someone to save him from a sin. On the other hand, it is clear why the Mishnah in Sanhedrin invokes the sin in order to justify killing the pursuer.

2. In similar terms: the pursuer is about to commit a sin, and therefore it is permissible to kill him specifically, since his blood is “less red.”

Here too, saving from sin is not itself a justification to kill a person, but only a criterion in comparing the value of his life with that of the pursued.

According to both explanations, it is clear that without a pursued there is no justification to kill the pursuer (hence, in Sabbath desecration and idolatry, there is no permission to kill the offender).

3. The “who says?” argument rests on the assumption that we do not infringe one person’s rights for another. But if killing the pursuer is not for the pursued, rather for the pursuer himself (to save him from sin), then that argument does not apply. It is not done for someone else.

This obviously assumes that there is indeed justification to kill him to save him from sin. This is the Mishnah in Sanhedrin in its plain sense. Yet it is difficult: why then do we not permit killing in Shabbat desecration and idolatry? I already noted that Shabbat is less severe, but regarding idolatry one might say it is because he already committed the sin.

4. If we allow the pursuer to kill the pursued, he will incur the death penalty in court. That is, in any case he will die in the end. It is thus reasonable to delegate to private individuals the authority to carry out the death penalty now—before the pursuer kills and becomes liable—in order to save the life of the pursued. The pursuer will die anyway.

Note that according to this, killing the pursuer is a judicial punishment and not merely a rescue operation, only that it is carried out by a private person. That is, the conception is that saving the pursuer from sin does justify his execution. If he commits the sin, we will execute him afterward; hence his life is worth less than preventing the sin. Therefore, even before he murders, we kill him to save him from the sin. As stated, his life is worth less.

Saving the pursued is important, but it is not the ground that justifies the killing of the pursuer. It only explains why we do not transfer this to a court but rather impose it on a private individual. The answer is that it is done to save the pursued. Not the killing per se, but the advancement of the punishment and its delegation to a private person. From here it is also clear why, for Shabbat desecration and idolatry, we did not permit it, since there the death penalty—if any—would be in court, and there is no reason to transfer its execution to a private person.

5. I will bring one more explanation, though it does not sit well with the Mishnah in Sanhedrin; nevertheless, it is the most reasonable and accepted. We kill the pursuer because his blood is less red than that of the pursued, for he is the one who created the situation and is responsible (guilty) for it. Indeed, one may not prefer one life over another when both are in the same situation and neither is at fault. But if one of them created the situation, he cannot now claim that his blood is no less red and ask us, in the name of this principle, to let him kill the pursued. That is absurd. Note that here we do not need to invoke sin or punishment at all as part of the justification for the law of a pursuer; and then the question arises how to understand the Mishnah in Sanhedrin, which explicitly invokes punishment both in its wording and in the connections among the cases it addresses, as Rashi also explains.

In short, from the Mishnah it would seem that the last explanation is incorrect, since it does not rely on the issue of sin at all. How to reconcile it with the Mishnah? Before proposing an explanation, we must move to the case of a minor pursuer. The motivation to discuss this is that, with a minor pursuer, there is certainly no sin on the pursuer’s part, for a minor is not obligated in commandments. Of course he is also not liable for the death penalty if he murders, so that consideration also falls away. It will be interesting to examine whether in such a case there is also a law of a pursuer; this can help us form a view on the five proposals above, particularly the last one.

A minor pursuer

It turns out that to consider this question we need not go far. One page before the Mishnah cited, the Gemara (Sanhedrin 72b) discusses the law of a minor pursuer:

Rav Huna said: A minor who is pursuing [to kill] may be saved with his life. He holds that a pursuer does not require prior warning (hatra’ah)—whether adult or minor. Rav Chisda challenged Rav Huna: “If [a fetus] has brought forth its head, we do not touch him, for we do not push aside one life for another.” Why? He is a pursuer! He answered: There it is different, for “from Heaven they pursue her” (it is a natural process). Let us say a source supports him: “A pursuer pursuing his fellow to kill him—say to him: ‘See, he is a Jew, a member of the covenant, and the Torah said ‘He who sheds man’s blood, by man shall his blood be shed’—the Torah said: Save the blood of this one with the blood of that one.’” — That is [only] Rabbi Yose son of Rabbi Yehudah’s view, as it was taught: Rabbi Yose son of Rabbi Yehudah says: A “chaver” (one knowledgeable in law) does not require warning, for warning was given only to distinguish between inadvertent and deliberate [sinners].

Rav Huna claims that even a minor pursuer must be killed. The law of rodef applies also to a minor. This seems to stand in direct contradiction to what we have seen so far, for a minor is neither subject to commandments nor to punishment. The first four explanations do not apply to him. Perhaps one could understand this according to the first explanation: that the minor’s blood is less red—not because he has a sin (he does not), but because he is a minor. But that too is highly forced, since regarding the prohibition of murder there is no difference between minor and adult, young and old. Moreover, the Gemara itself links this to whether a pursuer requires warning, which is indeed tied to sin and especially punishment. One could have tied it to the minor’s “sin,” if we assume that even a minor has a “sin” but is not punished because he is coerced—this is very forced, for the Gemara itself ties it to the case of a fetus; to say that a fetus, even with the head out, has a “sin” but is coerced is far from reasonable.

It seems we must understand Rav Huna according to the fifth explanation. But even that, simply, does not work, since a minor is not a responsible agent; it is hard to hold him accountable for creating the situation. Indeed, Rav Chisda actually rejects Rav Huna’s view from the Mishnah in Ohalot regarding a fetus endangering its mother. From there we see that a pursuer requires warning; otherwise, why not kill the fetus whose head has emerged? Rav Huna rejects this, saying that there it is not a case of pursuit, for “from Heaven they created the situation.” We see explicitly that Rav Huna hinges the law on who created the situation—that is, he follows the fifth explanation.

How, then, will Rav Huna explain attributing responsibility for creating the situation to a minor pursuer? He has no [legal] mind and is not guilty. We are forced to say this is not about guilt but about responsibility. The minor is indeed not guilty, but in practice he is the one who created the situation, and thus the responsibility to resolve it is upon him. Why not say the same about the fetus? Because the fetus did not create the situation—nature (Heaven) did. Note that the distinction between the minor and the fetus whose head has emerged is not based on guilt, but on the factual question: who created the situation. The responsibility to solve the tangle lies upon the one who created it, even if he is not guilty. If a minor takes a weapon, goes into the street, and indiscriminately shoots passersby, we are obligated to kill him. He is not guilty, but neither are they. He created the situation—even without understanding—and therefore the responsibility to address it lies upon him. A fetus whose head has emerged did not create the situation; he was placed into it by Heaven.

Rav Chisda, of course, does not accept this distinction, because in his view the matter depends on sin or punishment. If there is no sin, there is no law of a pursuer; for this purpose it does not matter whether the pursuer is a minor or a fetus whose head has emerged. Neither is guilty, neither bears sin or punishment, and therefore there is no law of a pursuer. For him, guilt is what matters—not responsibility—and that is his dispute with Rav Huna.

Another question: why do we kill the fetus that has not brought forth its head? This is difficult both according to Rav Chisda and according to Rav Huna: according to Rav Chisda, since there is no sin, there should be no law of a pursuer; and according to Rav Huna, since he did not create the situation, there is no responsibility. It seems that for both of them we kill the fetus because the value of his life is less than that of the mother—that is, his blood is less red than hers. This, of course, is aside from the law of a pursuer, which does not apply here. In such a scenario we do save the mother with the fetus’s life, because his blood is less red.

Difficulties in Rav Huna’s view

We are left, of course, to reconcile Rav Huna with the Mishnah. Rav Chisda, who ties the law of a pursuer to sin, fits well with the Mishnah (per the first four explanations, and perhaps the fifth as well, which for him would be tied to guilt rather than responsibility). But Rav Huna, who ties it to responsibility and not to sin or punishment, and as we saw, likely follows the fifth explanation (though in his view what matters is responsibility, not guilt)—how will he support the Mishnah’s words, especially per Rashi, who explicitly wrote that sin is the foundation of the law of a pursuer? How can one apply the law of a pursuer to a minor in light of everything we have seen? We saw above that the fifth explanation does not sit with the Mishnah.

One more note: Rav Huna’s phrasing is “we save the minor with his life,” i.e., he adopts the Mishnah’s wording, which implies that the permission to kill the minor is to save him from sin. By comparison, see the wording in the Jerusalem Talmud, Shabbat 14:4:

“Rav Chisda asked: What is the law of saving the life of an adult with the life of a minor? Rabbi Yirmiyah challenged him: Is this not our Mishnah—‘If [the fetus] has brought forth most [of its body], we do not touch it, for we do not push aside one life for another’? Rabbi Yosa son of Rabbi Bun, in the name of Rav Chisda, said: There it is different, for you do not know who is killing whom.”

Here it is clear that killing the minor is not to save him from sin but to save the life of the pursued. Note that the speaker here is Rav Chisda, who holds that the matter is guilt, not responsibility, and yet he chooses a phrasing that does not relate to the minor’s sin but to saving the pursued.

Parenthetically, I note that the Yerushalmi’s explanation why, once the head has emerged, we do not kill is different from the Bavli’s. It claims there is mutual pursuit, not that “from Heaven they created the situation.” See column 437. That is, in principle there is pursuit here, for it does not depend on who created the situation but on the existence of a threat. However, since there is mutual pursuit, the law of a pursuer does not apply. It seems Rav Chisda again follows his own logic.

Two distinct laws of pursuer

The contradiction is direct, and it seems there is no choice but to conclude that there are two different laws of “pursuer.” One can kill the pursuer due to the first four considerations—i.e., due to his sin—and one can also kill him due to his responsibility (the fifth explanation, in Rav Huna’s version that hinges on responsibility, not guilt). Each explanation has consequences. The “responsibility” pursuer-law adds that even a minor is subject to it, which would not follow from the “guilt” pursuer-law. Of course, for an adult pursuer both laws apply, and thus he is killed both due to guilt and due to responsibility. The “guilt” pursuer-law also comes to teach something: that the pursuer is killed because of his guilt—i.e., it is a punishment, not merely a permission to kill in order to save the pursued. The halakhic consequence concerns the rule of “kim lei b’derabbah minei” (KLBDRM—“he receives the greater penalty”).

The Gemara in Sanhedrin 74a (the next page) states:

“As Rava said: A pursuer who was pursuing his fellow and broke vessels—whether belonging to the pursued or to others—is exempt. What is the reason? He is ‘liable with his life’ (i.e., subject to death), [and thus is exempt from monetary payment].”

That is, if the pursuer broke vessels, he is exempt from payment for them. The entire context there is KLBDRM—since he is liable to death, he is exempt from payments. If the permission to kill him were only due to his responsibility, then he is not truly liable to death. If so, it would seem there is no place for KLBDRM here. Why should the fact that others may kill him to save the pursued exempt him from paying a third party for the vessels he broke?! The exemption is the consequence of the “guilt” pursuer-law. If killing the pursuer is also a punishment, not merely a responsibility-based measure, then that punitive aspect exempts him from payment under KLBDRM.

Note that by my proposal, a minor pursuer who breaks vessels would be liable to pay for them, since his pursuer-law does not include the punitive aspect (he is not obligated in commandments nor punishable). True, a minor who causes damage is exempt from payment even without KLBDRM—but perhaps there is a consequence regarding liability “before Heaven” when he grows up (the view of the Rosh is that there is such responsibility for a minor who caused damage, and this is ruled in the Shulchan Aruch, Choshen Mishpat).

Returning now to Rav Huna’s approach, we can say that the Mishnah comes to teach the first pursuer-law: the guilt/punishment one. One might have erred and thought this is the entire law, and thus a minor pursuer would be exempt. Precisely for this reason, Rav Huna adds that we should not err to think there is no pursuer-law for a minor: there is also a second pursuer-law—responsibility—so even a minor pursuer may be killed.

Regarding a fetal “pursuer,” we can also see the difference between Rav Huna and Rav Chisda. Rav Chisda sees the pursuer-law as about the pursuer’s guilt, with no element of responsibility; hence for him there is no difference between a fetus whose head has or has not emerged—in both cases there is no guilt—so he expects that, according to Rav Huna, one should kill even the fetus whose head emerged; while in his own view there is no pursuer-law for a fetus whose head has not emerged either. By contrast, according to Rav Huna, for whom the matter is responsibility, Rav Chisda is apparently right that he would expect to kill even the fetus whose head emerged. The difference is that, for Rav Huna, “from Heaven they created the situation” is a case where there is not only no guilt but also no responsibility. The reason we kill the fetus before the head emerges is not the pursuer-law at all, but because his blood is less red than the mother’s. There is no pursuer-law here, but the “who says” principle also does not apply.

Maimonides’ view

This can be seen in Maimonides’ ruling, Laws of Murder 1:5–9:

5. A murderer who killed deliberately is not executed by the witnesses or those who saw him until he comes to court and is judged to death, as it is said (Num. 35:12), “The murderer shall not die until he stands before the congregation for judgment.” The same applies to all those liable to capital punishment who have transgressed: they are not executed until their judgment is concluded in court.

6. In what case is this said? In one who has already transgressed and committed a sin that carries the death penalty in court. But one who pursues his fellow to kill him—even if the pursuer is a minor—all Israel are commanded to save the pursued from the pursuer, even with the life of the pursuer.

The juxtaposition of these two laws is noteworthy (especially in Maimonides, where wording and placement are precise). It seems that Maimonides views the pursuer-law as a limitation on the general rule that punishment is only administered by a court. From this linkage it follows that he understands the pursuer-law as imposing a punishment on the pursuer, with the rescuer functioning as the court. On the other hand, the wording is that we are obligated to save the pursued with the life of the pursuer, i.e., it is not to save the pursuer himself. On yet another hand, Maimonides rules like Rav Huna that the pursuer-law applies even to a minor, and he explains that this is directed to saving the pursued. It appears, then, that in his view this is responsibility, not guilt/punishment. How do these two insights cohere?

It seems unavoidable to conclude that Maimonides recognizes two pursuer-laws: guilt/punishment and responsibility. This is precisely what he seeks to emphasize: that there is a responsibility-based law, not only punishment, and therefore the pursuer-law applies even to a minor. As we have seen, the source is in the Gemara’s very discussion. It is all there; he simply rules it as law.

He then continues:

7. How so? If they warned him and he is still pursuing—even if he did not accept the warning—since he is in pursuit, he is killed. And if it is possible to save [the pursued] by injuring one of the pursuer’s limbs—for example, by shooting an arrow, or a stone, or a sword to sever his hand or break his leg or blind his eye—we do so. But if we cannot be precise and cannot save [the pursued] except by killing the pursuer, then we kill him, even though he has not yet killed, as it is said (Deut. 25:12), “You shall cut off her hand; your eye shall not pity.”

Here too we see that warning applies to a pursuer—that is, there is a punitive aspect. It is not indispensable, because of the priority to save the pursued (hence we do not wait for court and we administer punishment even before the sin). That is why Maimonides is careful to say, “we kill him even though he has not yet killed,” i.e., it is a punishment even though it is given before the transgression.

Maimonides concludes in halakha 9, where he returns to the fetal “pursuer” case:

9. This is a negative commandment—not to have pity on the life of the pursuer. Therefore the Sages ruled that a pregnant woman who is having difficulty giving birth, it is permitted to cut up the fetus in her womb, whether with a drug or by hand, for it is like a pursuer after her to kill her; but if the head has emerged, we do not touch it, for we do not push aside one life for another—this is the way of the world.

He introduces his ruling here with the pursuer-law itself. It seems he understands that killing the fetus (before the head emerges) derives from the pursuer-law—so he writes, “for it is like a pursuer after her.” On the other hand, he writes that if the head has emerged we do not kill, “for we do not push aside one life for another—this is the way of the world.” Acharonim have challenged him, noting an apparent contradiction with the Gemara, which established that there is no pursuer-law here (“from Heaven they created the situation”). Moreover, if there were a pursuer-law here, why not kill even after the head emerges—after all, we kill an adult pursuer. Many Acharonim discuss this (Achiezer III §72; Chiddushei R. Chaim Halevi on this halakha in Maimonides; Seridei Eish on tractate Sanhedrin §40; and many others).

It is reasonably clear that Maimonides’ intent is “like a pursuer,” not an actual pursuer; that is, there is a quasi-pursuit. In such a case, there is justification to kill the “quasi-pursuer” if he is a fetus (whose life-value is not full and certainly not equal to the mother’s), but once the head has emerged and he is a full human being, we need the full pursuer-law to justify killing him. What we see in Maimonides is that the mere difference in life-value is not sufficient to justify killing the fetus. We must add that there is a quasi-pursuit. Only the combination of these two principles justifies killing the fetus. A quasi-pursuit is a case where the “pursuer” is not guilty but bears some responsibility because he created the situation. For a minor pursuer, this is full responsibility (though not guilt, as we saw); for a fetus there arises a threat to the mother (hence Rav Chisda likens him to a minor pursuer), but Maimonides argues that in the fetus the threat is more indirect; therefore only if his life-value is lower is killing justified. In any event, all this limits the distinction between guilt and responsibility (as a result of creating a threat), or rather distinguishes between two types of threat that generate some responsibility.

Between responsibility and guilt: ministerial responsibility

We have reached the conclusion that there can be a situation in which responsibility is imposed on a person for a situation he created, even if it is not his fault. This is Rav Huna’s novel principle, and it is no wonder that Rav Chisda does not accept it. People generally tend to impose responsibility only where there is guilt. Responsibility without guilt is a novelty that requires clarification and justification.

A striking example is a statement by Amir Ohana, then Minister of Public Security, after the Meron disaster in which dozens perished. Ohana claimed that while he was responsible, responsibility does not necessarily mean guilt. The media ridiculed this and saw it as evasive. Their implicit assumption was that there is no responsibility without guilt, i.e., that the two cannot be separated. But they are mistaken. As we have seen, situations of responsibility without guilt certainly exist. My friend, Judge Finkelstein, who headed the committee of inquiry into the escape of prisoners from Gilboa Prison, surprised me once when he said that responsibility had never been imposed in Israel without guilt. Even what is called “ministerial responsibility” has been imposed until now only when some level of guilt could be identified. His committee also deliberated this point at length. This is further evidence that although the term “ministerial responsibility” exists, the intuition tying responsibility to guilt persists and somewhat empties it of content.

Therefore I thought to dwell a bit on this, and try to persuade you that responsibility without guilt is certainly possible. The example of a minor pursuer and the pursuer-law generally was the first step in this direction. I do not think anyone would dispute that a minor pursuer threatening lives must be neutralized—even lethally—though clearly he is not guilty. I will now move to additional examples.

The responsibility of a collective pursuer

Similar to the example of a minor pursuer, I have noted more than once that there is a concept of a collective pursuer. For example, the Maharal in Gur Aryeh to Genesis 34:13 (regarding Shimon and Levi in Shechem) brings a dispute of the Rishonim on their actions:

“Scripture says… For otherwise, why write ‘who defiled their sister’? If they had said ‘who defiled Dinah their sister,’ they would have understood that they spoke with guile; rather, Scripture says ‘for he defiled Dinah their sister,’ and this was not deceit. But it is difficult: if Shechem sinned, how did the whole city deserve to be killed? The Rambam (Laws of Kings 9:14) answered that the sons of Noah are commanded regarding courts of law, and one who transgresses any of them is executed; and here they saw this evil deed and did not judge him; therefore they were liable to death for not judging.”

Maimonides writes that they acted in accordance with law, since the people of Shechem were liable to death for failing to uphold the commandment of law (one of the seven Noahide commandments; and, as is known, a Noahide is liable to death for any of his transgressions).

He then challenges this:

“In truth, these words are surprising. How could they judge the son of the ruler of the land (v. 2)? They were afraid of them! And although they were commanded regarding law, that is when they are able to judge; but ‘coercion exempts’ (Bava Kamma 28b). How could they possibly have judged them?”

His claim is that the simple citizens of Shechem cannot be blamed—for what could a simple person do against the king? This is a city-state thousands of years ago: no democracy, no rights. Whoever opposes the king dies immediately. So what is the charge against the common citizens for not upholding the law? What do we want from them? Why does Maimonides write that they were liable to death?

And he resolves:

“It seems there is no difficulty, for it is not like two nations (e.g., Israel and Canaanites), who are two peoples. As it is written (v. 16), ‘and we will become one people’—and initially they were not considered one people. Therefore it was permitted for them to fight as in a war of one nation against another, which the Torah permits. And although the Torah says (Deut. 20:10), ‘When you approach a city to fight it, call out to it for peace,’ that is when they did nothing to Israel; but when they did something to Israel—as here, where they breached to do a disgrace to them—even if only one did so, since he is part of the nation, once they breached against them first, they are permitted to take vengeance on them. Similarly, in all wars such as ‘Harass the Midianites’ (Num. 25:17), although many had done nothing—this is no distinction, since they are of the nation that did evil to them; it is permitted to wage war upon them. And so it is in all wars.”

He speaks in the language of vengeance—which, at least by contemporary moral standards, sounds untenable. But in my view, the difficulty he raises can also be answered in the language of responsibility. My claim is that each citizen of Shechem was not guilty, but was responsible for the situation; therefore they had to answer for it. To understand: on my account, this is not vengeance and not punishment; it is prevention. The people of Shechem were killed because they enabled the deeds of their king, even if they were not guilty in the matter. But if there is no preventive reason to kill them, it is certainly forbidden, since they bear no guilt.[1] I wrote similar things in column 635 regarding the appropriate stance toward Gaza’s residents (see also the two podcasts, this and this).

Responsibility without guilt of the ordinary citizen for Stalin’s deeds

To grasp the meaning of such responsibility, I return to another example discussed in column 67. There too I addressed the distinction between guilt and responsibility, illustrating with the case of Stalin. There is no doubt that the Russian people were not guilty of Stalin’s atrocities, most of which were perpetrated against them. Any Russian citizen who would have tried to oppose him would have been murdered on the spot. Stalin was paranoid and killed anyone against whom there was the slightest suspicion of opposition. A person who would approach another to organize action against Stalin would likely be informed upon—whether out of fear or identification with the system. Thus there was no chance to organize a rebellion or assassination. A private individual could not do so, and none of us in that situation would have acted differently. On the other hand, every action Stalin took against anyone else, whether a Soviet citizen or a foreign person or state, relied on his control of the USSR. Without all the citizens he would have had no army, no police, no secret services; he could have done nothing. Consider the situation: one man, with an entire state of hundreds of millions, with immense military and technological power, wanting to assassinate him and opposing his deeds—and yet he ruled them with an iron fist and died peacefully in his bed.

Do all the USSR’s citizens bear responsibility for Stalin’s deeds? May another state or another person harm ordinary citizens or soldiers to protect themselves from Stalin’s actions? My claim is that while no private person is guilty here, all citizens bore responsibility for the situation. Responsibility does not mean one may harm or kill them wantonly. Punishment or vengeance against such a person is out of the question. But if harming them is necessary for protection, it is their responsibility to resolve the problem because they created it; therefore their blood is less red. Much like the people of Shechem. Note that in the situation that existed there, anyone trying to defend against the USSR’s actions would have to harm Russian citizens or soldiers who bore no shred of guilt. The soldiers are perhaps pursuers (even if not by fault), but the civilians are not involved. And yet, if harming civilians were necessary, it would be permitted, because the state’s citizens are responsible for its actions. Those who must pay the price for resolving the situation are those responsible for it—just as we saw in the pursuer-law.

Responsibility without guilt in the liability of an innocuous ox (shor tam)

We can now perhaps understand the Gemara in Bava Kamma 15a, which brings a dispute among Amoraim regarding the half-damages liability of a shor tam (an ox with no established goring pattern):

“It was stated: Half-damages—Rav Pappa said: It is monetary liability; Rav Huna son of Rav Yehoshua said: It is a fine. Rav Pappa said ‘monetary,’ for he holds that ordinary oxen are not presumed guarded, and by law he should pay full damages; the Torah had mercy on him, since his ox was not yet forewarned. Rav Huna son of Rav Yehoshua said ‘fine,’ for he holds that ordinary oxen are presumed guarded, and by law he should not pay at all; the Torah fined him so that he will guard his ox.”

Rav Huna b. R. Yehoshua holds that half-damages is a fine; that is, strictly speaking, the owner is exempt because ordinary oxen are presumed guarded and he need not have suspected that his ox would damage. That is—he is not guilty. But he bears responsibility; therefore he is fined half-damages so that he will guard the ox in the future (and that others will guard theirs). We harm him without guilt for preventive purposes. If he is not guilty, what justifies this? The responsibility he has over his ox. His ox created a problem; hence the responsibility to resolve it rests upon him.

Responsibility without guilt: back to ministerial responsibility

Returning to the issue of ministerial responsibility, I argue the same claim. Minister Ohana said he was not guilty in the situation, but he was responsible; therefore, ostensibly, there is no justification to harm him. And indeed, punishment or vengeance are out of the question without guilt. But because he acknowledges that the responsibility is his, we may “harm” him (e.g., dismiss or censure him) to prevent recurrence in the future. Even without guilt, by virtue of his responsibility, it is permissible to act in a way that prevents future harm.

Responsibility without guilt: a paid bailee (shomer sachar)

The liabilities of a paid bailee are greater than those of an unpaid bailee. The latter is liable only for negligence, whereas the former is liable even for theft or loss. In terms of the level of care, the law is that a paid bailee must guard like ordinary people guard—just like an unpaid bailee. Yet he must pay for theft or loss for which the unpaid bailee is exempt. The simple explanation is that this is liability of responsibility. He pays not because of guilt but because of responsibility. This is the difference between payments for negligence, which are based on guilt, and payments for theft/loss, which are based on responsibility. The money he received creates heightened responsibility; therefore, even if he guarded properly and is not at fault, he must pay for damage that occurred under his responsibility.

Responsibility without (standalone) guilt: drunk driving

Another example, somewhat different, is a driver who was negligent—say he drove drunk. Suppose nothing happened; it is still clear he did wrong. Even so, he need not pay anything (if he is caught, there is criminal responsibility, of course, but no civil damages). But if he injures someone, he must pay. This is a different case, since here he clearly bears guilt. But the guilt by itself does not require him to pay, for without damage there is no obligation to pay. The guilt creates responsibility to pay for what occurred. The payment is due to his responsibility for what happened. Moreover, drinking wine before driving is not an offense on the level of murder; but if, because of it, you killed someone, you are punished like a murderer. Again, drinking wine is not murder and does not deserve a murderer’s punishment. But if something follows from it, the responsibility to rectify rests upon you. This is not responsibility without guilt but responsibility beyond guilt (and because of it).

This example is similar to the responsibility of a bailee or property owner who was negligent, and as a result damage occurred for which—in and of itself—he was not negligent. For instance: a bailee hid deposited coins in a shack in the forest. This is good guarding against thieves, since no one would imagine coins are stored there. But it is negligence regarding fire that could break out there. In the end, thieves came and stole the coins. Seemingly, this is force majeure. But the initial negligence imposes responsibility even for the force majeure that occurred in the end. This is what is called in halakhic-Talmudic jargon: “its beginning in negligence and its end in accident” (see column 459). Again: there is guilt, but the penalty imposed is a consequence of responsibility generated by that guilt—not a punishment for the guilt itself.

Responsibility without guilt: provocative dress of women

Another example is what I wrote in column 117 regarding the “Me Too” campaign. In brief, I argued there that if a woman dresses in a blatantly provocative manner and is attacked or sexually harassed, she bears contributory responsibility for what happened. The claim that a woman has the right to dress however she pleases—even if true (and in my view it is not)—is relevant only to the matter of guilt. But the question of responsibility remains. Even if the woman is not guilty of what happened—for clearly, even if she dresses provocatively, no one is permitted to attack her—she nevertheless has partial responsibility for what happened. Therefore the term “contributory negligence” is not apt here; it assumes the discussion should take place entirely in the register of guilt. But no—the discussion should be conducted in the register of responsibility.

This is another example of responsibility without guilt (i.e., even assuming no guilt). A woman who goes out dressed in such a way should know that there may be one person out of many who is less willing or able to restrain himself and his impulses, and he may attack her. He, of course, must be judged for what he did, but she also bears partial responsibility. Even if we assume that she has the right to dress as she wishes, she nevertheless cannot fully lay blame for what happened (at least not completely). Here, of course, the tired demagogic claims of “blaming the victim” are expected—and I’ll refrain from addressing them.

[1] The difference between my proposal and the Maharal’s is very similar to my dispute with Rabbi Yisraeli regarding the Qibya operation and harm to non-combatants. See my article on the “Defensive Shield” dilemma.