Lesson 18: Shemot

From the book Mida Tova: Articles on the Principles of Halakhic Thinking by Rabbi Michael Avraham. Translated from Hebrew using gpt-5.4 (reasoning_effort=high, batch API).

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With God’s help

Concepts

• Guilt and fate.
• Guilt as an interpretive-halakhic criterion.
• Extraneous considerations in halakhic decision-making.
• Mutual pursuit.

Abstract

In this article we deal with the law of the rodef (a person pursuing another in order to kill him) in situations in which both sides are pursuing one another, that is, each wants to kill the other. We point to halakhic (Jewish legal) sources that treat such a situation as though there is no pursuit here at all. On the other hand, a midrash (rabbinic exposition) in our Torah portion implies that this is indeed a case of mutual pursuit, and simple reasoning points in that direction as well.

We distinguish between situations in which the pursuit is intentional and situations in which the pursuit is “from Heaven,” that is, the result of a natural condition forced upon those involved. Even in such situations there is, to some extent, a law of rodef, but it may be that mutual pursuit cannot be defined there at all.

We present several implications of defining a situation as mutual pursuit: for the separation of conjoined twins, for a dangerous fight between two people, and more. Even if we rule that a given situation is defined as mutual pursuit, the conclusion is that one may harm one of the two in order to save the other. Even so, a criterion is still needed for deciding which of the two is to be harmed and which is to be saved. We also briefly address that question.

In the concluding chapter we discuss whether guilt, or other extraneous considerations, can affect the legal definitions we give to a situation. That is, do we adopt a legal interpretation for reasons such as fairness and the like, even in situations in which there is no legal way to determine which interpretation is correct? As an example of this type of approach, we briefly discuss halakhic rulings issued under pressing circumstances that are sometimes contrary to the accepted ruling. This is a good example of halakhic decision-making based on extraneous considerations.

The Rules and Principles Emerging from the Article

The law of the rodef and mutual pursuit

A look at choices among halakhic-interpretive alternatives

Introduction: Mutual Pursuit

Our Torah portion tells of Moses going out to look after the welfare of his brethren. One day he sees an Egyptian man striking a Hebrew man; he kills the Egyptian and hides him in the sand. The next day he sees two Hebrew men fighting with one another (Exodus 2:13):

He went out on the second day, and behold, two Hebrew men were fighting; and he said to the wicked one, “Why do you strike your fellow?”

The Sages identify the two combatants as Datan and Aviram (see Babylonian Talmud, Nedarim 64b, and parallels). The midrash says of this (Exodus Rabbah 1:29):

Another interpretation: “fighting” means that they intended to kill one another, as it says, “If men strive together”; and Rabbi Elazar said: Scripture here speaks of a deadly struggle.

That is, each of the two men wanted to kill the other. True, one of them is called “wicked” here, and this verse is also used to derive that one who raises his hand against another, even without striking him, is called wicked. But from the Sages’ identification it is clear that neither side was exactly innocent. In any case, the midrash establishes that this was mutual pursuit. What is the law in such a case? It is not entirely clear. In the end, Moses does not kill either of them, but it is unclear whether that is because he never intended to kill them at all, or because he feared committing a second killing within two days; immediately afterward he flees, because “surely the matter is known.”

We should note that the midrash explains, almost in passing, that the basic verse dealing with the law of the rodef (see Babylonian Talmud, Bava Kamma 28a) also speaks of such a case (Deuteronomy 25:11):

If men fight together, a man and his brother, and the wife of one approaches to rescue her husband from the hand of the one striking him, and she stretches out her hand and seizes his private parts.

Here too the men are fighting “together,” and Rabbi Elazar in the midrash interprets this as a deadly quarrel. If so, this verse as well deals with a situation of mutual pursuit. If this is indeed the correct interpretation of the verse, it would seem that mutual pursuit is regarded as double pursuit, for the Gemara there says that if the woman had no alternative way to save her husband, she is exempt under the law of the rodef. If so, it seems that according to this midrash, Moses refrained from killing either of them only out of fear. Strictly speaking, he should have killed one of them.¹

In this week’s article we shall deal with a case in which there is pursuit, but it is mutual. We shall examine what should be done in such a situation and see several interesting implications of that discussion.

A. The Law of the Rodef and the Rule Against Saving Oneself by Taking Another’s Life

The Rule Against Saving Oneself by Taking Another’s Life: One Must Be Killed Rather Than Transgress in Murder

At the outset we must present the basic definitions. The pair of basic concepts that accompanies every such discussion is: the law of the rodef, and the rule of “one must be killed rather than transgress” with respect to murder, or, in other words, the prohibition on saving oneself by taking another’s life. First, we must note an apparent contradiction between these two halakhot.

Ordinarily, halakha permits one to violate any prohibition in the Torah in order to save a life. The source is the interpretation: “You shall live by them,” and not die by them (Babylonian Talmud, Yoma 85b). This rule does not apply to the three cardinal sins, and murder is one of them (see Babylonian Talmud, Pesachim 25b). These three prohibitions are not set aside in the face of danger to life, and the rule governing them is: one must be killed rather than transgress.

That is, if Reuven threatens Shimon that he will kill him unless Shimon kills Levi, Shimon may not kill Levi, and he must surrender his own life. Put differently, Shimon may not save his life with Levi’s life. In the Babylonian Talmud there, the reasoning given is: “What have you seen that your blood is redder? Perhaps that other man’s blood is redder.” In other words, prima facie Shimon’s blood is no redder than Levi’s blood; or, put differently, Shimon’s life is worth no more than Levi’s. Therefore, he may not take Levi’s life in order to save his own. The wording of the Gemara implies that the symmetry between Shimon and Levi is what prevents Levi from being killed in order to save Shimon. Hence, in a symmetrical situation of this kind, we instruct: it is preferable to remain passive and do nothing.²

It should be noted that the decisors discuss asymmetrical situations in which, for various reasons, one life takes precedence over another.³ They also discuss an asymmetrical case in which there is nevertheless still a prohibition (see Kesef Mishneh on Maimonides, Laws of the Foundations of the Torah 5:5).

The Law of the Rodef

Now, in that very same case in which Reuven threatens Shimon in order to make him kill Levi, Shimon is permitted, and indeed obligated, to turn around and kill Reuven, who threatened him, in order to save himself, and thereby also save Levi’s life. This halakha appears to contradict the first one, for here Shimon saves his life at the price of Reuven’s life, and who says that Shimon’s blood is redder than Reuven’s? The same is true in any case in which Reuven is chasing Shimon to kill him. Levi, who sees this, and likewise Shimon himself, is obligated to kill Reuven in order to save Shimon’s life. In such a situation we save Shimon with Reuven’s life, apparently contrary to the previous rule of “one must be killed rather than transgress.” Are Shimon’s life and blood really worth more than Reuven’s?

The difference lies in the fact that in the case of a rodef, Reuven is the guilty party in the situation that has arisen. Reuven is pursuing Shimon, and thus he himself created the situation that forces us to choose between his life and Shimon’s. The one who created the situation must bear its consequences. Although Shimon’s blood is not redder, Reuven is nevertheless the one who must pay the price of the situation he created. His guilt in creating the situation makes his blood “less red.” I will not enter here into the various explanations and definitions of this rule.

A Similar Distinction Regarding Property

To sharpen the distinction between the law of the rodef and the rule against saving oneself at another’s expense, let us cite Maimonides at the end of the Laws of Injury and Damages (8:15):

If a ship was thought likely to break because of the weight of its cargo, and one of those aboard lightened the load and threw part of it into the sea, he is exempt, because the cargo is like a pursuer after them to kill them, and he performed a great duty by throwing it overboard and saving them.

Maimonides defines here a case of an inanimate pursuer. A ship is about to break because of the weight of the load, and in such a situation the cargo is a rodef; therefore it is permitted to throw the cargo into the sea in order to save the ship. True, even without the law of the rodef, it would have been permitted to throw the cargo into the sea in order to save lives. But in that case the person who threw it overboard would have had to compensate the owner of the cargo, under the rule of saving oneself with another’s property (see the discussion in Babylonian Talmud, Bava Kamma 60b). If, however, the cargo is a rodef, then it may be thrown into the sea with no obligation of payment whatsoever.

The Raavad, in his glosses there, challenges this ruling and writes:

A ship thought likely to break, and so forth, because the cargo is like a pursuer after them to kill them. I object: there is neither salt nor spice here, for there is no law of rodef here at all. Nor is this comparable to the donkey case in the chapter Ha-Gozel. In this case, when goods are thrown into the sea, even if one threw the property of a single individual, the loss is apportioned among all according to their respective loads, as stated in the Gemara.

In his view, there is a duty to compensate the owner of the cargo, and there is no law of rodef here at all; rather, this is merely a case of saving oneself with another’s property. He even cites an explicit baraita from Babylonian Talmud, Bava Kamma 117b in support of his position.

However, the Maggid Mishneh there, and likewise the Kesef Mishneh and Migdal Oz, explain Maimonides’ position as follows:

We read in chapter Ha-Gozel (117b): There was a man who hurried and brought his donkey onto the ferry before the people had boarded, and the ferry was about to sink. Someone came, cut loose that man’s donkey, threw it into the river, and it drowned. The owner came before Rabbah, and Rabbah exempted him. Abaye said to him: But this is saving oneself with another’s property! Rabbah replied: It was initially a pursuer. In that same chapter we also read (117b): Our Rabbis taught: If a ship was traveling at sea and a wave rose against it to sink it, and they lightened it by throwing some of the cargo overboard, they assess the loss according to the load, and not according to wealth, and so forth. Both passages appear in the halakhic collections. Our master has already written the rule of that baraita verbatim in chapter 11 of the Laws of Robbery and Lost Property. From his words it seems to me that he distinguishes between the two cases. The baraita speaks specifically where a wave rose against the ship, a heavy pressure from the sea, and the ship was not overloaded; they cast out cargo only to quiet the force of the waves. In such a case they said that the loss is apportioned according to the load, and such things often happen to seafarers. What Maimonides wrote here concerns a sea behaving normally, but a ship overloaded because one or two of the passengers loaded too much. In that case the cargo is like a pursuer, and that is the case of the donkey. This distinction is clear and reasonable, and our rabbi’s pot lacks neither salt nor spice.

In brief, the Maggid Mishneh distinguishes between a situation in which a wave threatens to sink the ship and the cargo merely prevents rescue, and a situation in which the sea is calm but the cargo itself threatens to sink the ship. In the first situation, the cargo does not threaten the ship; the wave does. Therefore, one who throws the cargo into the sea is saving himself with another’s property and must pay, with the payment apportioned among the passengers according to their loads. But when the cargo itself threatens to sink the ship, then the cargo is a rodef, and it may be thrown into the sea in order to save the passengers, with no duty of compensation.

This is exactly the distinction we saw above regarding saving oneself with another’s life, except that here it is applied to saving oneself with another’s property. There is no doubt that the Raavad himself agrees to this distinction with respect to saving oneself with another’s life, for he too accepts the existence of both laws: “one must be killed rather than transgress” in murder, and the law of the rodef. In his opinion, however, unlike Maimonides, this distinction applies only to a human pursuer, not to a case in which property is the pursuer.

Summary

The upshot may be summarized as follows: at first glance, these two halakhot appear to provide a complete division of all possible cases. Whenever the law of the rodef does not apply, the prohibition on saving oneself by taking another’s life arises; and vice versa. Therefore, the decision whether a given case is one of rodef also determines the prohibition on saving oneself with another’s life. The only way it is permitted to save one person with another person’s life is if that other person is a rodef. Put differently, everything depends on whether symmetry exists. If the situation is symmetrical, there is no permission to kill one of them; but if the situation is asymmetrical, there is permission.

However, as we already hinted above, this picture is incomplete. There are two sorts of qualifications:

1. There are intermediate situations that are not characterized by actual pursuit, and here we stand between the law of the rodef and the prohibition on saving oneself by taking another’s life. In such cases it is sometimes possible to save one life with another life even without the law of rodef.
2. Where there is asymmetry between two lives, it is sometimes possible to save one at the expense of the other, the “lesser” one, even without the law of rodef. There are several kinds of such asymmetry, and there are disputes in halakha regarding their application.⁴

In the next chapter we shall deal with a particularly interesting intermediate case: mutual pursuit.

B. Mutual Pursuit

Introduction

As we saw above, the case of Moses, and perhaps also the verse in Deuteronomy, deal with a situation of mutual pursuit. Why is such a case different from an ordinary case of a rodef? What is present here beyond a mere duplication of legal status?

The Separation of Conjoined Twins

The problem of mutual pursuit arises mainly in two halakhic contexts: the separation of conjoined twins and fetal reduction. In the first case, we are dealing with two twins attached to one another in various ways, and in many instances they cannot continue to live for long in that condition. If we wish to save at least one of them, they must be separated and only one of them can be left with the vital organs, so that at least that one can continue to live. Some treat such a situation as mutual pursuit: each twin pursues the other, and therefore both have the status of rodef. Below we shall see the implications of that distinction.

The second case is one in which there are many fetuses in a woman’s womb, and they cannot all continue to live. We are therefore compelled to “reduce” some of them, that is, to choose to kill some so that at least the rest can continue to live and be born healthy. Here too, some treat such a situation as mutual pursuit.

To understand the significance of the question of mutual pursuit, let us now examine its halakhic implications. If, in the case of conjoined twins, there is no rodef at all, then we have no permission to harm one in order to save the other: who can say that Reuven’s blood is redder than Shimon’s? But if we define such a situation as mutual pursuit, then there is permission to harm either one of them in order to save the other. True, the question of choice still remains: which of the two should we choose to harm? But the fundamental permission regarding one of them remains in force. In such a situation there may be room to think of conducting a lottery to determine which one to harm. But if neither has the status of rodef, then there is no basic permission to harm either of them. In that case, a lottery is of no help at all, since a lottery cannot permit the shedding of a person’s blood. At most, a lottery can decide, with respect to an existing permission, to which of the two it will apply.⁵

Mutual Pursuit: Rabbi Shlomo Eiger and the Jerusalem Talmud

Rabbi Professor David Bleich, in an article dealing with the separation of conjoined twins,⁶ argues that since it is unclear here who is the pursuer and who is the pursued, both should be regarded as pursuers of one another.

But immediately afterward he throws out the baby with the bathwater and neutralizes the significance of that question. He brings an interesting source dealing with such a case, from Rabbi Shlomo Eiger, the son of Rabbi Akiva Eiger, cited in the novellae of Rabbi Akiva Eiger on Ketubot 33b. Rabbi Shlomo Eiger claims that in a situation of mutual pursuit, neither side has the legal status of rodef, and he proves this from a precise reading of the Gemara.⁷ If so, even if we decide that there is mutual pursuit here, it is still a situation that halakhically counts as if there were no pursuit at all, and therefore the implications we pointed out above disappear.

One may add here the Jerusalem Talmud, at the end of chapter 14 of Shabbat and in Sanhedrin 8:9, discussing the Mishnah in Ohalot, which is also discussed in Babylonian Talmud, Sanhedrin 72b, about a fetus whose head has emerged. In such a situation, even if it endangers its mother, we do not kill it, because “you do not know who is killing, or pursuing, whom.” In contrast to the Babylonian Talmud, from which it appears that the fetus is not killed because it is not considered a rodef at all,⁸ the Jerusalem Talmud apparently defines the situation as one of mutual pursuit between mother and fetus.⁹ This source too suggests that mutual pursuit is not treated as pursuit.

It is possible, however, that the Babylonian Talmud, which disagrees with the Jerusalem Talmud in that it offers different reasons, holds that this is not a case of mutual pursuit; perhaps in its view, had it been such a case, it would indeed have counted as pursuit. Of course, that is not a necessary explanation.

Maimonides’ Approach

The Mishnah, Ohalot 7:6, and likewise the Tosefta at the end of chapter 9 of Yevamot, states:

If a woman is having great difficulty giving birth, one cuts up the fetus in her womb and removes it limb by limb, because her life takes precedence over its life. But once most of it has emerged, one may not touch it, for one life may not be set aside for another.

When the fetus threatens the mother’s life, it is killed, because her life takes precedence. But if most of it has emerged, or, in the Tosefta’s formulation, if it has put forth its head, one may not harm it, because one life is not set aside for another.

At first glance, the law with which the Mishnah deals does not concern the law of the rodef. True, as we saw above, when there is no law of rodef, one would seemingly immediately face the prohibition on saving oneself by taking another’s life. But in the case of a fetus the rule is different, because of an asymmetry stemming from another source, not from the law of the rodef. According to most decisors, one who kills a fetus does not violate the prohibition of murder but only a lighter prohibition, and some say that the prohibition is only rabbinic (see Mishnah Niddah 5:3).¹⁰ If so, the mother’s life has greater value than the fetus’s life, and therefore the fetus may be harmed in order to save her even without the law of rodef. The reasoning “who says her blood is redder?” does not apply, because her blood really is redder. By contrast, once it has emerged, it is considered a full human being, and the value of its life equals the value of the mother’s life. This is a symmetrical situation, and the mother’s blood is no redder than the infant’s. Therefore, the prohibition on saving oneself by taking another’s life returns.

That is the plain meaning of the Mishnah’s language. However, in both Talmuds, in the discussions dealing with a minor pursuer, there is an initial assumption that the first rule, namely, that the fetus is harmed while still inside the womb, does derive from the law of the rodef. Yet from the conclusion of both Talmuds it would appear that there is in fact no law of rodef here.¹¹

In the Babylonian Talmud, Sanhedrin 72b, there is a discussion of a minor pursuer, that is, whether prior warning is needed for a rodef:

Rav Huna said: A minor who is a pursuer may be saved only by taking his life. He holds that a pursuer requires no prior warning, whether adult or minor. Rav Hisda objected to Rav Huna: Once its head has emerged, one may not touch it, because one life may not be set aside for another. But why? It is a pursuer! He replied: There it is different, because Heaven is pursuing her.

At first glance, the first part of the Mishnah in Ohalot supports Rav Huna’s view, since the fetus is killed even though there is no possibility of prior warning. But Rav Hisda challenges Rav Huna specifically from the latter part of the Mishnah in Ohalot, from which we see that there is no law of rodef for a minor whose head has emerged. Rav Huna’s answer is: “There it is different, because Heaven is pursuing her.” Three possible explanations of the Gemara’s conclusion appear in the commentators:

1. Something that belongs to the natural order of the world, the contractions and mutual pressure of childbirth, is not considered pursuit. Only acts produced by human beings, actions that depart from the ordinary course of nature, can count as pursuit.
2. Intent to pursue is required in order to acquire the status of rodef. “Heaven is pursuing her” means that there is no intent of pursuit here, only a natural process, “from Heaven.”
3. In the Jerusalem Talmud cited above, we saw that the root of the problem is mutual pursuit. There is no permission to kill the fetus because it is not a rodef, in accordance with Rabbi Shlomo Eiger’s view.

At first glance, the conclusion is that coerced pursuit is not pursuit. Therefore, once the head has emerged, one may not touch the infant, because that would be a case of saving oneself by taking another’s life. As long as it is still a fetus, there is still no law of rodef, because “Heaven is pursuing him,” but its life yields to the mother’s life because its value is lower.

However, in Maimonides, Laws of Murderer and Preservation of Life 1:9, and likewise in Shulchan Arukh, Choshen Mishpat 425:2, it is clear that the course of the Gemara was understood differently. This is the language of Maimonides there:

This is a negative commandment: not to show pity for the life of a pursuer. Therefore the Sages ruled that if a pregnant woman is having difficulty giving birth, it is permitted to cut up the fetus in her womb, whether by drug or by hand, because it is like a pursuer after her to kill her. But once its head has emerged, one may not touch it, for one life may not be set aside for another, and that is the way of the world.

Maimonides’ words make it clear that he sees the fetus as a pursuer, and the permission to kill it is based not on the fact that its life does not have the same value as the mother’s life, but on the law of the rodef. On the other hand, if such a situation is indeed considered a case of pursuit, then even once the head emerges the infant should still be considered a rodef, and there should be an obligation to kill it in order to save the mother. The fact that once its head has emerged it is a full human being, and killing it would ordinarily be murder, is irrelevant, because the law of the rodef permits the killing even of a full human being.

Yet the latter part of the Mishnah says that once its head has emerged there is no permission to harm it, and Maimonides too brings that as law. The reason given in the Mishnah and in Maimonides, namely that “one life may not be set aside for another,” is difficult to understand. This formulation in Maimonides indicates that he sees such a situation as one of saving oneself by taking another’s life, not as one of rodef, and therefore he forbids it. But earlier he ruled that in the case of the fetus this is a case of pursuit, and it does not seem reasonable to distinguish between a fetus and an infant whose head has emerged with respect to the question whether it is a pursuer.

Thus, as many later authorities have noted, see the glosses of Rabbi Akiva Eiger on the Mishnah in Ohalot there and others, Maimonides is difficult in two respects:

1. His words contradict the conclusions of the Talmuds that there is no law of rodef here.
2. There is an internal contradiction between his two rulings: regarding the fetus he permits killing it as a rodef, while regarding the infant whose head has emerged he treats the case as one of saving oneself by taking another’s life and applies the rule of “one must be killed rather than transgress.”

Necessarily, then, Maimonides’ words must be understood as follows. First, if we read him carefully, we find that he refers to the fetus as “like a pursuer after her to kill her,” not that it is an actual pursuer. We must now ask why it is not in fact a real pursuer.

Two possibilities may be suggested:

1. “Heaven is pursuing him.” That is, it is pursuing against its will or under natural circumstances, and therefore it is not an actual rodef but only “like a rodef.” If so, what is the permission to kill it based on? The permission rests on a combination of the law of the rodef and the lesser value of its life. Someone who has the status of a quasi-pursuer may be killed if his life is not of full value. But once the head emerges, there is no permission to kill it, because it is not an actual pursuer, and here one life may not be set aside for another.

According to this possibility, Maimonides interprets the Gemara as follows: the initial assumption was that the fetus is killed under the law of the rodef. Then the question arose: why do we not kill the infant once its head has emerged, if it is a rodef? The answer is that it, like the fetus, is not an actual pursuer but only a quasi-pursuer, because “Heaven is pursuing him.” Consequently, only a fetus, whose life has lesser value, may be killed, but not an infant whose head has emerged.¹²

According to this possibility, Maimonides offers a great novelty: a coerced rodef is a third category, between rodef and saving oneself by taking another’s life. In such a case there is permission to kill only a fetus, whose life has lower value, but not a full human being, whose life has full value. By contrast, saving oneself by taking another’s life is permitted neither in the case of a fetus nor in that of a full human being, for otherwise there would have been no need to define the situation as quasi-rodef in order to reach the permission to kill the fetus. And in a situation where the law of rodef actually applies, it is permitted to kill both a fetus and a full human being.

2. But there is another way to interpret the Gemara’s conclusion according to Maimonides: the fetus is considered “like a pursuer” because this is a case of mutual pursuit, as in the Jerusalem Talmud cited above. A situation of mutual pursuit cannot be treated as two ordinary pursuits, meaning that each side is a full rodef. Rather, both sides have the status of quasi-pursuer. The implication is that if one life is of lesser value, as in the case of a fetus, that permits killing it. But once the head emerges, its life is equal to the mother’s life, and therefore there is no permission to harm it in order to save her, since each pursues the other.

According to this direction, there is no need to posit a third category between rodef and saving oneself by taking another’s life. The case remains within the framework of the law of rodef, except that it is bilateral. It is possible that Maimonides’ source is the Jerusalem Talmud, which, as we saw, explicitly speaks of mutual pursuit. Maimonides may interpret the Babylonian Talmud and the Jerusalem Talmud in the same way, and that is how he rules.¹³

Interim Summary

The conclusion from all this is that a situation of mutual pursuit is not treated as ordinary pursuit. According to Rabbi Shlomo Eiger, not at all; and according to Maimonides, it is a case of quasi-rodef, meaning a situation that permits the killing of one whose life does not have full value, but not the killing of a full human being.

The problem raised by this is the midrash with which we opened. As we saw in the introduction, that midrash quite clearly implies that even in a situation of mutual pursuit the law of rodef applies, since the woman may save her husband by killing his rival. Reason, too, suggests that when both parties are pursuing, there are in fact two pursuers, and it is less plausible to describe this as a situation with no pursuit at all. We must therefore reexamine those claims in light of the sources we have seen until now, from which it emerges that in a situation of mutual pursuit there is no law of rodef. We must also examine how we can decide which of the two to kill, since both are pursuers. At first glance, that very consideration points toward the conclusion that there is no law of rodef here. The next two subsections address these two questions.

The Choice

As stated, even if we decide that in one or another case of mutual pursuit the law of rodef applies, the problem remains: how do we choose whom to kill and whom to save? What should Moses have done in the situation in which he encountered mutual pursuit? Several possibilities may be suggested here, and we shall refer to them briefly:

1. Moses should have killed the one who is called there “the wicked one.”
2. Perhaps Moses should have conducted a lottery that would select one of the two.¹⁴
3. Perhaps he should have killed the one who had the better chance of overpowering his rival and killing him.
4. From the verse about the woman, it appears that she may choose to save her husband and kill his rival. Perhaps closeness and personal obligation can determine whom to kill and whom to save.¹⁵
5. If there is a difference between the two men in terms of the priority rules discussed at the end of tractate Horayot, it is plausible that those rules would decide the matter here.¹⁶

Distinguishing Between Different Cases

We saw above that both reason and the opening midrash imply that a situation of mutual pursuit does count as a case of pursuit. How is that to be reconciled with the sources we cited earlier, Rabbi Shlomo Eiger, the Jerusalem Talmud, and Maimonides? To understand this, we must note two important distinctions:

1. According to most commentators, in the case of the fetus and the mother the expected outcome is that the mother will die and the fetus will remain alive. By contrast, it is not clear what the expected outcome is in the case of Datan and Aviram, but it is reasonable to assume that not both of them will die. In such situations it is reasonable not to intervene, but to let them proceed on the basis of “whoever is stronger prevails,” because not both are going to die, only one of them. Here we adopt the rule that it is preferable to remain passive and do nothing. By contrast, in the case of conjoined twins, for example, the expected outcome is that both of them will die; therefore there is strong logic in intervening and killing one in order to save at least the other.

Admittedly, this distinction does not help us distinguish between the case of Datan and Aviram and the case of the fetus and its mother. And with Rabbi Shlomo Eiger it is not clear whether he is speaking of a case in which both are about to die or not. There are considerations in both directions, but it is more reasonable that in the normal case one of them is expected to overcome the other, so that only one of them is likely to die.

2. In the case of the fetus and the mother there is no criminal intent, and no one is guilty of the situation that has arisen: “Heaven is pursuing them.” By contrast, in the case of Datan and Aviram, both are guilty and both intentionally pursue the other in order to kill him. Therefore, it makes sense to define the first situation as one with no pursuit, whereas the second is more plausibly defined as double pursuit. According to this, even in the case of conjoined twins there is no intentional pursuit, and therefore there would apparently be no permission to intervene. But here the first distinction enters, since both are expected to die, and this is not the place to elaborate.

C. Guilt as a Halakhic-Interpretive Criterion

Introduction

The conclusion we reached in the previous section was that when mutual pursuit is intentional on both sides, we define it as double pursuit, and in such a situation there is permission to harm either one of the two sides. The question of which one to harm and which one to save was discussed in the previous subsection. But when the pursuit is “from Heaven,” that is, not through the fault of the parties, we treat double pursuit as though there were no pursuit at all.

In the background of this discussion, it is important to understand that even a pursuer who acts unintentionally and without awareness is considered a rodef, as in the case of the minor in the Sanhedrin passage cited above, and there is permission to harm him in order to save the pursued. If so, why is it precisely in the case of mutual pursuit that the distinction between a conscious pursuer and an unconscious pursuer suddenly becomes relevant?

Two Types of Explanation

Two kinds of explanation may be suggested for why guilt determines interpretation:

1. A specific explanation concerning the law of the rodef. Despite what we saw above, namely that guilt is not necessary for the application of the law of the rodef, there is no doubt that within the context of the law of the rodef, guilt is a substantial and important parameter. Without guilt, the law of the rodef usually does not apply; rather, what applies is the prohibition on saving oneself by taking another’s life.
2. A general halakhic explanation. When several interpretive possibilities are open before us and there is no way to decide between them, we may use guilt as an interpretive parameter. Since there is bilateral guilt here, we apply to the situation the category of mutual pursuit.

A First-Type Explanation: The Role of Guilt in the Law of the Rodef

As stated, even an unintentional pursuer is halakhically considered a rodef, and there is permission, indeed a duty, to kill him in order to save the pursued. The Gemara discusses a minor pursuer as an example of unconscious pursuit. But a sharper example may be given. Suppose a person suffers a psychotic break and begins shooting at passersby in the street. He is not doing this intentionally, and he bears no guilt in the criminal sense, yet no one disputes that we are obligated to kill him in order to save those around him. How is this different from the case in which “Heaven is pursuing him”? Why do we not say here too that this is a pursuit from Heaven?

The answer is that the term “guilt” in the context of the law of the rodef does not mean guilt in the criminal sense. When a person is overtaken by such madness, what has happened has happened in him. Therefore society is not required to bear the consequences of his condition. We say to him: your fate caused it, and therefore you must bear the consequences. Similarly, if there is a dangerously ill person who needs a certain organ, we will not permit him to seize an organ from someone else on the ground that he is under compulsion. We will say to him that his fate caused it, and therefore he must bear the grim consequences of the situation, and no one else, because after all, the event occurred in him.

Thus, there is indeed a law of rodef even where the pursuer bears no guilt and acts with no criminal intent. But for the law of rodef to apply, there must still be an act of pursuit. The person shooting in the street performs an act of pursuit, even if under compulsion, and therefore he is called a rodef. One may say that he is trying to transfer the consequences of his bad luck to someone else, that is, to make someone else bear the consequences of what happened in him. Therefore this is defined as an act of pursuit, and we must stop it. By contrast, the fetus in its mother’s womb performs no act of pursuit at all, though perhaps according to Maimonides there is something partial of that sort there, and therefore it is not considered a rodef, but rather a case in which Heaven is pursuing him.

If so, the law of the rodef in a case of unintentional pursuit is the result of a consideration of the type “your fate caused it.” The question is not who is pursuing, but on whom the consequences of the situation should be placed. By contrast, the law of the rodef in a case of intentional pursuit is the result of guilt, and is a kind of punishment.¹⁷

The implication for mutual pursuit is as follows. In such a situation there is no defined party of whom we can say “your fate caused it,” since each pursues the other equally. Here we cannot decide on whom to place the consequences of the situation. Therefore, in such a situation we do not define it as a case of rodef at all. In fact, in a rodef case of the “your fate caused it” type, mutual pursuit is conceptually impossible, because the whole essence of the law of the rodef in this context is merely a decision placing the burden on one side. When there are two sides, such a decision is impossible.

By contrast, in a situation of intentional and deliberate pursuit, the law of the rodef is the result of guilt. As stated, this is a kind of punishment. In this type of pursuit there is no obstacle to imposing that liability on both sides. Therefore, when both want to kill the other, both have the status of rodef. This is the case of Moses our teacher with Datan and Aviram, and therefore the midrash there defines it as mutual pursuit.

A Second-Type Explanation: Halakhic-Interpretive Decision Based on Extraneous Considerations

In halakha, as in any legal system, there are situations of doubt, and in such situations judges use halakhic rules for resolving the uncertainty. In the context of monetary doubt we know a number of such rules, such as: whoever is stronger prevails; they divide it; the burden of proof rests on the one who seeks to extract property from another; let it remain in place until Elijah comes; one who acted according to one authority has acted validly, and one who acted according to the other authority has acted validly;¹⁸ and more.

In some situations, in which none of these rules can be used, we follow the practice of judicial discretion. The medieval authorities disagree about what should be done in such cases: should one do whatever one wishes arbitrarily, for example, give the money to the brother of one of the judges, or should one act according to what seems proper? The term “proper” may be interpreted here in at least two ways: morally proper, for example, giving the money to the poorer of the parties, or punishing the one who appears to us to have behaved improperly; or legally proper, meaning what seems more reasonable and closer to the truth in the case at hand, even though there is no admissible and solid evidence.

If so, there is a possibility that in situations of doubt of this kind we decide the law on the basis of extraneous considerations, for example, to punish a wicked person or a cheat, or to do what appears fair in our eyes, even if this is not strictly demanded by the legal decision itself in such cases.

We suggest here that in situations in which two halakhic avenues of decision are open before us, and both are acceptable, such that ordinarily we would have to follow the rules governing doubt, for prohibitions, for example, going stringently in biblical law and leniently in rabbinic law, there is legitimate room for a decision based on considerations unrelated to the clarification of legal truth. In such situations we may decide according to fairness and natural justice.

If this path is indeed possible, then in a case of intentional mutual pursuit, fairness dictates that the law of the rodef should apply to each of the sides. This is precisely the argument we brought above against Rabbi Shlomo Eiger’s view. Therefore, in such cases we choose to define the situation as mutual pursuit, even though from a purely legal standpoint that decision has no priority over the decision that there is no pursuer here at all. We do so because that is the proper way to relate to such a situation from the standpoint of fairness and justice. By contrast, in a situation of bilateral pursuit that is unconscious and unintentional, we choose on grounds of justice and fairness to define the situation as one of no pursuit. Since no one is guilty of the situation, and since we have no criterion forcing us to decide, unlike the case of unilateral unintentional pursuit, where we must decide who will bear the consequences of the situation, we say that in such a case no one is a pursuer.

Perhaps this was precisely Rabbi Shlomo Eiger’s own consideration. As we noted, reason alone offers no logic for exempting both sides from the law of the rodef merely because the pursuit is mutual. After all, each of them meets the criteria for the application of that law. It may be that considerations of fairness led Rabbi Shlomo Eiger to define such a situation as one of no pursuit, against the strict legal logic.

In closing, I would note that, in my opinion, halakhic discussions dealing with such situations often make use of decisions of this type, but usually this is done implicitly and without awareness. Many examples could be given, but this is not the place.

A Methodological Note

At the basis of this proposal stand several assumptions that require examination, and we cannot discuss all of them here. I will point to just one by way of example. We are assuming here, implicitly, that the rules governing doubt apply only in the absence of any decision of any sort. One could instead treat the rules of doubt as part of halakha itself, and from this infer that if two interpretive possibilities are acceptable, we are supposed to adopt the stricter of the two in biblical law; that itself would then be the halakhic instruction for such a situation. If so, there would no longer be two acceptable interpretive possibilities, but only one.

From this consideration it follows that once such a decision has been made, there is no room to adopt an interpretation based on extraneous considerations, because the only legitimate interpretation is the stricter one. As stated, our approach implicitly assumes that the rules for deciding doubts come into play only when no other path of decision exists. That assumption itself can be justified, and many examples may be brought in its support, but this is not the place.

Another Example: Pressing Circumstances

We conclude with one example, out of many, of halakhic decision-making based on extraneous considerations. In a good many halakhic situations, there is a different policy for a pressing circumstance. We permit reliance on lenient opinions in pressing circumstances even in cases where those opinions were not accepted as normative law. This has expression in the Talmud itself: “Rabbi Shimon is worthy to be relied upon in pressing circumstances” (see Babylonian Talmud, Gittin 19b, and Babylonian Talmud, Niddah 9b concerning Rabbi Eliezer, and parallels).

Another example is the Mishnah Berurah, which in several places writes that if there is a dispute on a given issue regarding the prohibition of muktzeh, then even if the dispute was decided one way, one may rely on the lenient opinion, which was not accepted as law, in pressing circumstances.¹⁹ This claim is even more puzzling in light of the fact that we rule that with respect to doubt in muktzeh one must be stringent,²⁰ whereas here we are not even dealing with a doubt.²¹

Now, if the discussion concerns permitting rabbinic prohibitions, like muktzeh, in pressing circumstances, then the connection to our discussion is not necessary. In such situations there is room to say that the Sages did not enact the prohibition where there is great loss or pressing need. But where there is a halakhic dispute, whether in biblical law or rabbinic law, and we rule one way as law, yet nevertheless adopt a lenient stance in pressing circumstances, the matter is very puzzling. Once the law has been decided, that law is binding. Why should the fact that there are other opinions, which were not accepted as law, remain relevant after the decision? If there were no other opinions, we would require the person to act in that manner even in pressing circumstances, on the principle that the law must take its course no matter what. If so, why, when there are other opinions, do we change the ruling? Does the existence of a pressing circumstance alter the halakhic truth?

At first glance, a phenomenon similar to what we have seen here is at work. In a situation in which there are two halakhic opinions, decision is not always made on the basis of truth-seeking alone, that is, pure halakhic-legal reasoning. In such situations we sometimes decide on the basis of extraneous considerations. When there is a pressing circumstance, we choose a different position, even if pure legal-halakhic reasoning would not lead us to it.

It should be emphasized that this phenomenon is even more puzzling than the proposal advanced here. In those cases, the law has already been decided, and yet we return and choose a different opinion because of extraneous considerations, namely, pressing circumstances. What we proposed here is merely to choose a legitimate opinion on the basis of extraneous considerations in a situation where no halakhic-legal decision exists. As though we were to say: the perspective of mutual pursuit is worthy of being relied upon when needed.

A Halakhic Implication

There is a different halakhic consequence to the two explanations we proposed here, with respect to a case of unintentional mutual pursuit. If the explanation is rooted in the laws of the rodef themselves, then in every case of unconscious bilateral pursuit we are prevented from defining it as mutual pursuit. By contrast, when the pursuit is conscious, it will necessarily always be defined that way. But if the explanation is the second, the general halakhic one, then there may be cases in which additional considerations, of fairness and justice or others, will lead us to decide in the opposite direction. Sometimes even in unconscious bilateral pursuit we will decide that there is nevertheless mutual pursuit.²²

For example, in the case of conjoined twins, where each pursues the other unintentionally, and the expected outcome there is that both are going to die. From a purely legal point of view, perhaps we should have ruled that there is no mutual pursuit here, since the pursuit is not intentional. But there is a side consideration, of the greatest importance: in the absence of the law of the rodef, we will not be able to intervene and separate them, and therefore both will die. By contrast, if we define the situation as mutual pursuit, then we will have permission to intervene and separate them, and thus to save at least one of them. It is possible that in such a case the consequentialist, that is, teleological, consideration, see the article from last week, will lead us to define the situation as mutual pursuit, by virtue of that side consideration, which is utilitarian rather than interpretive, and that will enable us to save at least one of them.²³ This is a kind of justification for a legal fiction, but that subject lies beyond the scope of our discussion here.

Footnotes