Killing to save - the law of the rodef

I am sure that most readers will be aware that the Torah encourages the prevention of murder by virtually all means, including taking the life of the would-be murderer (or rodef, pursuer) when absolutely necessary.[1] Here I would like to examine the application of this 'leniency' in a variety of cases, after the following disclaimer:

The misuse of these halachos by a certain individual in recent history has led some to make discussion of the entire subject a taboo. I, however, believe that intelligent analysis of any topic is not to be silenced in any way. For those who are exceptionally sensitive to these issues at this time of year, read on at your own risk. For those who are not, don't be disappointed if what I write does not appear particularly controversial.

The unwitting pursuer

The first point to clarify is the status of a person endangering someone else's life unintentionally. The gemara tells us that if a child is about to kill someone, the child's life can (and should) be taken, without any warning (obviously, this is again only if this is the only way of saving the 'pursued').[2]

From here the acharonim infer that the main purpose of killing the pursuer is in order to save the pursued, rather than being a punishment.[3] However, even after this explanation, I have a great difficulty understanding why we are supposed to prioritise the life of the pursued over the pursuer when both are innocent. Wouldn't it be better to be passive, in the same way that we would normally kill one person in order to save another?

I have not seen anyone who addresses this question, and the only answer I have come up with myself is that in fact the gemara is not talking about a completely innocent pursuer. Although children are not usually held responsible for their actions, if a child is attempting murder we have a legitimate reason for deciding that "the blood of the victim is redder."

A corollary of this would be that if it is clear beyond doubt that the child is completely innocent, for example the 'pursuer' is a baby playing with a pistol, we have no right to terminate his life to save another.[4] The same would apply to an adult who is about to kill someone inadvertently, at least if it is clear that there is no negligence whatsoever involved.[5]

Foetal pursuers

The problem with this theory is that the gemara continues by comparing to a case where the life of a woman in childbirth is in danger, and could be saved by terminating the life of the foetus. The halacha is that as long as the baby's head has not emerged, the mother's life takes precedence. Once the baby is born, we do not "push off one life for another."

The gemara asks why isn't the newborn baby considered a 'rodef,' and therefore be killed to save the mother. This question clearly assumes that the status of a rodef can apply even to someone who is at no fault whatsoever.

The gemara answers that the usual law of a rodef does not apply in the case of the mother and baby, as "the pursual is from Heaven." Could the reasoning behind this cryptic answer be the hypothesis suggested above – as the baby has no responsibility whatsoever, his actions are not considered his own rather those of Heaven?

To my disappointment, I have not managed to find a single commentary that explains in this manner. The Rambam writes that once the baby has emerged he cannot be considered a rodef as "this is the nature of the world."[6] Apparently, the Rambam understands that a person cannot be deemed a rodef when acting in the normal way of the world.[7] One acting abnormally could be a rodef, even if they could not be expected to act with any degree of responsibility.

The Rid (Rabbeinu Yeshaya d'Trani, 1180-1260, Italy) writes that the baby is not a rodef as he is not acting on his own accord.[8] This is slightly closer to the way I would like to explain, although I believe that there is a difference. I understand that the Rid sees the baby during birth (even after the head has emerged) as akin to a stone being thrown, as his role in endangering the mother is entirely passive. If a baby was actively endangering someone, he would be considered a rodef despite not being at any fault.[9]

Indirect causes of danger

The next question is over the status of one who is not going to be the killer, but will facilitate the acts of the real murderer. If a witness to this cannot directly stop the murderer directly, should he foil his plans by eliminating the accomplice?

The answer to this would appear to be a simple yes. The gemara says that a moser (informant) is to be put to death, and quotes cases where this was indeed implemented. The reasoning is that once a person falls into the hands of an evil regime, even over monetary issues, his life will likely be in danger (this clearly does not apply to civilised governments nowadays).[10]

It is important to point out that this equation between a murderer and a facilitator of murder only applies before the murder has been committed (or if there is a danger of further murders taking place). After the fact, although a murderer may be liable to the death penalty,[11] an accomplice or even one who murdered indirectly alone (e.g. by stealing someone's life saving medicine) is not.[12] What is the reason for this distinction?

I once heard from R' Zalman Nechemia Goldberg (shlit"a) that the reason why the Torah does not obligate a person for damage caused indirectly is entirely practical. While an indirect damager (or killer) may be just as guilty as a direct one, if we had to punish indirect offenders it would be very difficult to define who exactly is considered a cause. In the end, we may have punished those with only spurious connections to the damage.[13]

This concern also exists when it comes to prevention of potential murder. However, when a human life is potentially in immediate danger, we do not have the option of simply remaining passive out of concern for what might happen in other situations. We must be decisive, and if it is clear beyond reasonable doubt that we can prevent murder, we must act. Equally, we must not make rash decisions to act without thinking it through properly.

Self-confidence and overconfidence

What happens when a person has thought out the issue properly and arrived at the conclusion that there is a rodef who must be disposed of, but no-one else seems to agree? He consults with others, hears their views but finds fault with their arguments that they are unable to address to his satisfaction. Is he supposed to defer to the majority opinion, or follow his own logic?

If we were dealing with a more 'run of the mill' halachic question, as long as there is no Sanhedrin I have written before that each person indeed has the right to 'go it alone.'[14] The same would seem to apply here, the only difference being that the severity of the issue would require more thorough consideration.

However, for technical reasons there will likely be a further difference here. Based on what we have already written, in order to classify someone as an indirect rodef and to kill him, the 'saviour' would need to be convinced that the following are all true:

1) The 'rodef' is definitely (beyond reasonable doubt) putting others in danger.

2) Nothing other than killing the 'rodef' will prevent this danger.

3) Killing the 'rodef' will stop this danger.[15]

The third condition will be much harder to fulfil if the 'saviour' is not recognised by others as preventing a real danger. As long as the 'rodef' has significant support, and even his opposition do not see him as a 'rodef,' it will likely be impossible for the one 'enlightened' individual to remove the danger alone. While one should not be scared of expressing unique opinions, one who does so should be well aware of the limits of his ability to draw others with him.

For those of us more inclined to fly in the face of public consensus, this last point is important to remember even with matters that are not an issue of life and death (or appear not to be). Individuals who act alone should usually do so only when others are not affected. Likewise, those in positions of power should respect the will of those they are representing when making far-reaching and irreversible decisions. Failure to do so often brings results that are unwanted by all.

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[1] If the victim can be saved while also sparing the life of the rodef, such as by shooting him in the foot, this must be done (see Sanhedrin 57a).

[2] Sanhedrin 72b

[3] See for example Aruch LaNer, Sanhedrin 73a.

[4] See Chashukei Chemed, Sanhedrin 72b, who questions whether the baby is considered a 'rodef' here for other reasons.

[5] This may even be the implication of the language that the gemara uses, that a rodef can be killed even without warning. If he can be killed even when he is at no fault whatsoever, we would have expected the gemara to say so explicitly.

[6] Hilchos Rotzeach 1:9

[7] Although according to the Rambam there, an unborn foetus is considered a rodef even when merely following natural processes, as it is not yet a 'soul.' See also Igros Moshe, Choshen Mishpat 2:69.

[8] Piskei Rid, Sanhedrin 72b

[9] The Yerushalmi gives a different (and perhaps even more cryptic) reason not to kill the baby as a rodef – "it is not known who is killing who" (Shabbos 14:4, Avoda Zara 2:2). This presumably means that the mother is also endangering the baby as much as the baby is endangering her (although see Igros Moshe ibid. who explains that the Yerushalmi means the same as the Bavli). This also contradicts my hypothesis, stating that both the mother and baby are potential 'pursuers' despite the clear fact that neither have any guilt.

[10] Bava Kama 117a; Berachos 58a. See also Rosh to Bava Kama there, who writes explicitly that a moser is a type of rodef.

[11] If he was warned, verbally acknowledged that he will be liable to death and was witnessed by two kosher witnesses.

[12] There is some discussion about this regarding a moser (see Choshen Mishpat 388:11), although this is because of the concern that the moser may repeat his actions.

[13] He based this on the Rambam, who explains that the Torah does not accept circumstantial evidence for similar reasons (Sefer Hamitzvos, Lo Sa'aseh 290).

[14] See “How does halacha work?”

[15] It is not clear to me how definite one has to be about this – it would seem reasonable that one who sees someone beating another to death does not have to ensure 100% that it is not too late to save the victim.