Q&A: If Someone Rises to Kill You, Rise Early to Kill Him
If Someone Rises to Kill You, Rise Early to Kill Him
Question
Hello Rabbi. I hope this question isn’t ridiculous, but I’ll ask it anyway. What is the reasoning behind the law of “if someone rises to kill you, rise early to kill him”? Let us assume for the sake of the question that the murderer will never do this again after the current attempted murder, and that killing him will create no deterrence whatsoever in the world. At this point, the pursued person has two options before him: either I die or the pursuer dies. One life will be lost. Why should I decide that it will be the pursuer and do so even through a positive act? Maybe one should say that because the pursuer is the one who created the situation in which “one person is supposed to die,” I am permitted to place the burden on him to be that one? Or perhaps his very attempted murder causes a death prohibition to hover over him? Or maybe this is simply a scriptural decree? Best regards.
Answer
This is not a ridiculous question at all, and many have already dealt with it. I’ll answer here only briefly.
It is clear that this is not done for the sake of deterrence. Only a religious court can kill on such grounds, whereas a pursuer may be killed by any person.
Rashi in tractate Sanhedrin writes that the pursuer is killed in order to prevent him from committing the transgression. That is, in killing the pursuer there is an advantage, because then one gains both one life and the prevention of a transgression, whereas in killing the pursued person one gains only the life of the pursuer.
Some maintain that because the pursuer created the situation, he must bear its consequences.
Others say that killing the pursuer is a death penalty for a murderer, except that Jewish law permits anyone to punish him, and even to do so before he has actually murdered, in order to save the pursued person. If we wait until he kills and only then kill him, we will lose the lives of two people.
And there is much more to elaborate on here.
Discussion on Answer
You probably mean a minor who is a pursuer. With a baby that is not the situation. As long as he has not brought out his head, he is not considered a person, and killing him is not murder. And once he has brought out his head, they indeed do not kill him (because “she is being pursued from Heaven”). However, a minor who is a pursuer is killed, and that indeed indicates that the more plausible explanation is that there is liability upon the one who created the situation. Still, this can be rejected, with some difficulty, in several ways; see Afikei Yam, part 2, siman 40 and further.
Thank you.
Indeed, one cannot prove it from a minor because he is not a person, but seemingly from the very fact that the Talmud justifies not killing him after the head has emerged (at which point he is a person, as I understand it) with “she is being pursued from Heaven,” it follows that without that—were it not a natural process in childbirth—they indeed would kill him, because of creating the situation.
That is exactly what I said. A minor pursuer is a dispute among the Amoraim in the Talmud, and the ruling is that he has the law of a pursuer. There is no need to infer fine points from the Talmud.
Seemingly, the reason that it is preferable to “gain” both the saving of one person and the prevention of the transgression is not sufficient, since in the case of a baby pursuing its mother, he is committing no transgression at all, and nevertheless he is killed.
The same applies to the reason of a death penalty for the murderer.
Doesn’t the law of the baby and his mother prove that the reason for the law of a pursuer is that he created the situation? Not as a punishment for that, but as a necessary consequence.