(1) The LORD spoke to Moses, saying: (2) Speak to the Israelite people and say to them: I the LORD am your God. (3) You shall not copy the practices of the land of Egypt where you dwelt, or of the land of Canaan to which I am taking you; nor shall you follow their laws. (4) My rules alone shall you observe, and faithfully follow My laws: I the LORD am your God. (5) You shall keep My laws and My rules, by the pursuit of which man shall live: I am the LORD.
§ The Gemara relates: It once happened that Rabbi Yishmael, and Rabbi Akiva, and Rabbi Elazar ben Azarya were walking on the road, and Levi HaSadar and Rabbi Yishmael, son of Rabbi Elazar ben Azarya, were walking respectfully behind them, since they were younger and did not walk alongside their teachers.
This question was asked before them: From where is it derived that saving a life overrides Shabbat?
Rabbi Yishmael answered and said that it is stated: “If a thief be found breaking in and be struck so that he dies, there shall be no blood-guiltiness for him” (Exodus 22:1). Now, if this is true for the thief, where there is uncertainty whether he comes to take money or to take lives, and it is known that bloodshed renders the land impure, since it is stated about a murderer: “And you shall not defile the land” (Numbers 35:34), and it causes the Divine Presence to depart from the Jewish people, as the verse continues: “In the midst of which I dwell, for I the Lord dwell in the midst of the children of Israel” (Numbers 35:34), and even so the home owner is permitted to save himself at the cost of the thief’s life, then a fortiori saving a life overrides Shabbat.
Rabbi Akiva answered and said that it is stated: “And if a man comes purposefully upon his neighbor to slay him with guile, you shall take him from My altar, that he may die” (Exodus 21:14). The phrase “take him from My altar” implies that if the murderer is a priest and comes to perform the service, one does not wait for him to do so but takes him to his execution immediately. But one should not take him from on top of My altar. If he already began the service and is in the midst of it, one does not take him down from the altar immediately but instead allows him to finish his service. And Rabba bar bar Ḥana said that Rabbi Yoḥanan said: They taught only that a priest is not removed from the altar in order to execute him for murder, but to preserve a life, e.g., if the priest can testify to the innocence of one who is sentenced to death, one removes him even from on top of My altar, even while he is sacrificing an offering. Just as this priest, about whom there is uncertainty whether there is substance to his words of testimony or whether there is no substance to his words, is taken from the Temple service in order to save a life, and Temple service overrides Shabbat, so too, a fortiori, saving a life overrides Shabbat.
Rabbi Elazar ben Azarya answered and said: Just as the mitzva of circumcision, which rectifies only one of the 248 limbs of the body, overrides Shabbat, so too, a fortiori, saving one’s whole body, which is entirely involved in mitzvot, overrides Shabbat.
Other tanna’im debated this same issue. Rabbi Yosei, son of Rabbi Yehuda, says that it is stated: “But keep my Shabbatot” (Exodus 31:13). One might have thought that this applies to everyone in all circumstances; therefore, the verse states “but,” a term that restricts and qualifies. It implies that there are circumstances where one must keep Shabbat and circumstances where one must desecrate it, i.e., to save a life.
Rabbi Yonatan ben Yosef says that it is stated: “For it is sacred to you” (Exodus 31:14). This implies that Shabbat is given into your hands, and you are not given to it to die on account of Shabbat.
Rabbi Shimon ben Menasya said: It is stated: “And the children of Israel shall keep Shabbat, to observe Shabbat” (Exodus 31:16).The Torah said: Desecrate one Shabbat on his behalf so he will observe many Shabbatot.
Rav Yehuda said that Shmuel said: If I would have been there among those Sages who debated this question, I would have said that my proof is preferable to theirs, as it states: “You shall keep My statutes and My ordinances, which a person shall do and live by them” (Leviticus 18:5), and not that he should die by them. In all circumstances, one must take care not to die as a result of fulfilling the mitzvot.
Rava commented on this: All of these arguments have refutations except for that of Shmuel, which has no refutation.
(לט) ויאמרו אליהם: נמותה הפעם בניקיון כפנו, והשמים והארץ עדים בנו כי בזדון תהרגונו.
(מ) ויפלו עליהם ביום השבת, ויהרגו כל אשר במערה. וימותו הם ונשיהם וטפם ומקניהם.
(39) But said, Let us die all in our innocency: heaven and earth will testify for us, that ye put us to death wrongfully.
(40) So they rose up against them in battle on the sabbath, and they slew them, with their wives and children and their cattle,
The Gemara now considers which prohibitions are permitted in times of mortal danger. Rabbi Yoḥanan says in the name of Rabbi Shimon ben Yehotzadak: The Sages who discussed this issue counted the votes of those assembled and concluded in the upper story of the house of Nitza in the city of Lod:
With regard to all other transgressions in the Torah, if a person is told: Transgress this prohibition and you will not be killed, he may transgress that prohibition and not be killed, because the preserving of his own life overrides all of the Torah’s prohibitions.
This is the halakha concerning all prohibitions except for those of idol worship, forbidden sexual relations, and bloodshed. Concerning those prohibitions, one must allow himself to be killed rather than transgress them.
The Gemara asks: And should one not transgress the prohibition of idol worship to save his life? But isn’t it taught in a baraita: Rabbi Yishmael said: From where is it derived that if a person is told: Worship idols and you will not be killed, from where is it derived that he should worship the idol and not be killed? The verse states: “You shall keep My statutes and My judgments, which a person shall do, and he shall live by them” (Leviticus 18:5), thereby teaching that the mitzvot were given to provide life, but they were not given so that one will die due to their observance.
The baraita continues: One might have thought that it is permitted to worship the idol in this circumstance even in public, i.e., in the presence of many people. Therefore, the verse states: “Neither shall you profane My holy name; but I will be hallowed among the children of Israel: I am the Lord Who sanctifies you” (Leviticus 22:32). Evidently, one is not required to allow himself to be killed so as not to transgress the prohibition of idol worship when in private; but in public he must allow himself to be killed rather than transgress.
The Gemara answers: Those in the upper story of the house of Nitza stated their opinion in accordance with the opinion of Rabbi Eliezer. As it is taught in a baraita that Rabbi Eliezer says: It is stated: “And you shall love the Lord your God with all your heart, with all your soul, and with all your might” (Deuteronomy 6:5). If it is stated: “With all your soul,” why is it also stated: “With all your might,” which indicates with all your material possessions? And if it is stated: “With all your might,” why is it also stated: “With all your soul”? One of these clauses seems to be superfluous. Rather, this serves to teach that if you have a person whose body is more precious to him than his property, it is therefore stated: “With all your soul.” That person must be willing to sacrifice even his life to sanctify God’s name. And if you have a person whose property is more precious to him than his body, it is therefore stated: “With all your might.” That person must even be prepared to sacrifice all his property for the love of God. According to the opinion of Rabbi Eliezer, one must allow himself to be killed rather than worship an idol.
From where is it derived that one must allow himself to be killed rather than transgress the prohibition of forbidden sexual relations and the prohibition of bloodshed? This is in accordance with the opinion of Rabbi Yehuda HaNasi. As it is taught in a baraita: Rabbi Yehuda HaNasi says: With regard to the rape of a betrothed young woman it is written: “But you shall do nothing to the young woman; the young woman has committed no sin worthy of death; for as when a man rises against his neighbor, and slays him, so too with this matter” (Deuteronomy 22:26). But why would the verse mention murder in this context? But what do we learn here from a murderer? Now, the mention of murder came in order to teach a halakha about the betrothed young woman, and it turns out that, in addition, it derives a halakha from that case. The Torah juxtaposes the case of a murderer to the case of a betrothed young woman to indicate that just as in the case of a betrothed young woman one may save her at the cost of the rapist’s life, so too, in the case of a murderer, one may save the potential victim at the cost of the murderer’s life. And conversely, the Torah juxtaposes a betrothed young woman to a murderer to indicate that just as with regard to a potential murderer, the halakha is that if one was ordered to murder another, he must be killed and not transgress the prohibition of bloodshed, so too, with regard to a betrothed young woman, if she is faced with rape, she must be killed and not transgress the prohibition of forbidden sexual relations.
The Gemara asks: From where do we derive this halakha with regard to a murderer himself, that one must allow himself to be killed rather than commit murder? The Gemara answers: It is based on logical reasoning that one life is not preferable to another, and therefore there is no need for a verse to teach this halakha. The Gemara relates an incident to demonstrate this: As when a certain person came before Rabba and said to him: The lord of my place, a local official, said to me: Go kill so-and-so, and if not I will kill you, what shall I do? Rabba said to him: It is preferable that he should kill you and you should not kill. Who is to say that your blood is redder than his, that your life is worth more than the one he wants you to kill? Perhaps that man’s blood is redder. This logical reasoning is the basis for the halakha that one may not save his own life by killing another.
If two people were walking on a desolate path and there was a jug [kiton] of water in the possession of one of them, and the situation was such that if both drink from the jug, both will die, as there is not enough water, but if only one of them drinks, he will reach a settled area, there is a dispute as to the halakha.
Ben Petora taught: It is preferable that both of them drink and die, and let neither one of them see the death of the other.
This was the accepted opinion until Rabbi Akiva came and taught that the verse states: “And your brother shall live with you,” indicating that your life takes precedence over the life of the other.
(א) אֶחָד דִּינֵי מָמוֹנוֹת וְאֶחָד דִּינֵי נְפָשׁוֹת, בִּדְרִישָׁה וּבַחֲקִירָה, שֶׁנֶּאֱמַר (ויקרא כד) מִשְׁפַּט אֶחָד יִהְיֶה לָכֶם. מַה בֵּין דִּינֵי מָמוֹנוֹת לְדִינֵי נְפָשׁוֹת. דִּינֵי מָמוֹנוֹת בִּשְׁלֹשָׁה, וְדִינֵי נְפָשׁוֹת בְּעֶשְׂרִים וּשְׁלֹשָׁה. דִּינֵי מָמוֹנוֹת פּוֹתְחִין בֵּין לִזְכוּת בֵּין לְחוֹבָה, וְדִינֵי נְפָשׁוֹת פּוֹתְחִין לִזְכוּת וְאֵין פּוֹתְחִין לְחוֹבָה. דִּינֵי מָמוֹנוֹת מַטִּין עַל פִּי אֶחָד בֵּין לִזְכוּת בֵּין לְחוֹבָה, וְדִינֵי נְפָשׁוֹת מַטִּין עַל פִּי אֶחָד לִזְכוּת וְעַל פִּי שְׁנַיִם לְחוֹבָה. דִּינֵי מָמוֹנוֹת מַחֲזִירִין בֵּין לִזְכוּת בֵּין לְחוֹבָה, דִּינֵי נְפָשׁוֹת מַחֲזִירִין לִזְכוּת וְאֵין מַחֲזִירִין לְחוֹבָה. דִּינֵי מָמוֹנוֹת הַכֹּל מְלַמְּדִין זְכוּת וְחוֹבָה, דִּינֵי נְפָשׁוֹת הַכֹּל מְלַמְּדִין זְכוּת וְאֵין הַכֹּל מְלַמְּדִין חוֹבָה. דִּינֵי מָמוֹנוֹת הַמְלַמֵּד חוֹבָה מְלַמֵּד זְכוּת וְהַמְלַמֵּד זְכוּת מְלַמֵּד חוֹבָה, דִּינֵי נְפָשׁוֹת הַמְלַמֵּד חוֹבָה מְלַמֵּד זְכוּת, אֲבָל הַמְלַמֵּד זְכוּת אֵין יָכוֹל לַחֲזֹר וּלְלַמֵּד חוֹבָה. דִּינֵי מָמוֹנוֹת דָּנִין בַּיּוֹם וְגוֹמְרִין בַּלַּיְלָה, דִּינֵי נְפָשׁוֹת דָּנִין בַּיּוֹם וְגוֹמְרִין בַּיּוֹם. דִּינֵי מָמוֹנוֹת גּוֹמְרִין בּוֹ בַיּוֹם בֵּין לִזְכוּת בֵּין לְחוֹבָה, דִּינֵי נְפָשׁוֹת גּוֹמְרִין בּוֹ בַיּוֹם לִזְכוּת וּבְיוֹם שֶׁלְּאַחֲרָיו לְחוֹבָה, לְפִיכָךְ אֵין דָּנִין לֹא בְעֶרֶב שַׁבָּת וְלֹא בְעֶרֶב יוֹם טוֹב:
(1) What are the differences between cases of monetary law and cases of capital law? Cases of monetary law are judged by a court of three judges, and cases of capital law are judged by a court of twenty-three judges. In cases of monetary law, the court opens the deliberations either with a claim to exempt the accused, or with a claim to find him liable. And in cases of capital law, the court opens the deliberations with a claim to acquit the accused, but it does not open the deliberations with a claim to find him liable. In cases of monetary law, the court directs, i.e., issues, the ruling based on a majority of one judge, either to exempt, or to find liable. But in cases of capital law, the court directs the judgment based on a majority of one judge to acquit and based on a majority of two judges to find liable. In cases of monetary law, the court brings the accused back to be judged again if new evidence arises, either with a claim to exempt the accused, or with a claim to find him liable. In cases of capital law, the court brings the accused back to be judged again with a claim to acquit him, but the court does not bring him back to be judged with a claim to find him liable. In cases of monetary law, all those present at the trial may teach a reason to exempt a litigant or to find him liable. In cases of capital law, all those present at the trial may teach a reason to acquit the accused, but not all present may teach a reason to find him liable. Only the judges can teach a reason to find him liable. In cases of monetary law, one who initially teaches a reason to find the accused liable may then teach a reason to exempt him, and one who initially teaches a reason to exempt him may then teach a reason to find him liable. In cases of capital law, one who initially teaches a reason to find him liable may then teach a reason to acquit, but one who initially teaches a reason to acquit may not return and teach a reason to find him liable. In cases of monetary law, the court judges during the daytime, and may conclude the deliberations and issue the ruling even at night. In cases of capital law, the court judges during the daytime, and concludes the deliberations and issues the ruling only in the daytime. In cases of monetary law, the court may conclude the deliberations and issue the ruling even on that same day, whether to exempt the accused or to find him liable. In cases of capital law, the court may conclude the deliberations and issue the ruling even on that same day to acquit the accused, but must wait until the following day to find him liable. Therefore, since capital cases might continue for two days, the court does not judge cases of capital law on certain days, neither on the eve of Shabbat nor the eve of a Festival.
(ה) כֵּיצַד מְאַיְּמִין אֶת הָעֵדִים עַל עֵדֵי נְפָשׁוֹת, הָיוּ מַכְנִיסִין אוֹתָן וּמְאַיְּמִין עֲלֵיהֶן. שֶׁמָּא תֹאמְרוּ מֵאֹמֶד, וּמִשְּׁמוּעָה, עֵד מִפִּי עֵד וּמִפִּי אָדָם נֶאֱמָן שָׁמַעְנוּ, אוֹ שֶׁמָּא אִי אַתֶּם יוֹדְעִין שֶׁסּוֹפֵנוּ לִבְדֹּק אֶתְכֶם בִּדְרִישָׁה וּבַחֲקִירָה. הֱווּ יוֹדְעִין שֶׁלֹּא כְדִינֵי מָמוֹנוֹת דִּינֵי נְפָשׁוֹת. דִּינֵי מָמוֹנוֹת, אָדָם נוֹתֵן מָמוֹן וּמִתְכַּפֵּר לוֹ. דִּינֵי נְפָשׁוֹת, דָּמוֹ וְדַם זַרְעִיּוֹתָיו תְּלוּיִין בּוֹ עַד סוֹף הָעוֹלָם, שֶׁכֵּן מָצִינוּ בְקַיִן שֶׁהָרַג אֶת אָחִיו, שֶׁנֶּאֱמַר (בראשית ד) דְּמֵי אָחִיךָ צֹעֲקִים, אֵינוֹ אוֹמֵר דַּם אָחִיךָ אֶלָּא דְּמֵי אָחִיךָ, דָּמוֹ וְדַם זַרְעִיּוֹתָיו. דָּבָר אַחֵר, דְּמֵי אָחִיךָ, שֶׁהָיָה דָמוֹ מֻשְׁלָךְ עַל הָעֵצִים וְעַל הָאֲבָנִים. לְפִיכָךְ נִבְרָא אָדָם יְחִידִי, לְלַמֶּדְךָ, שֶׁכָּל הַמְאַבֵּד נֶפֶשׁ אַחַת מִיִּשְׂרָאֵל, מַעֲלֶה עָלָיו הַכָּתוּב כְּאִלּוּ אִבֵּד עוֹלָם מָלֵא. וְכָל הַמְקַיֵּם נֶפֶשׁ אַחַת מִיִּשְׂרָאֵל, מַעֲלֶה עָלָיו הַכָּתוּב כְּאִלּוּ קִיֵּם עוֹלָם מָלֵא. וּמִפְּנֵי שְׁלוֹם הַבְּרִיּוֹת, שֶׁלֹּא יֹאמַר אָדָם לַחֲבֵרוֹ אַבָּא גָדוֹל מֵאָבִיךָ. וְשֶׁלֹּא יְהוּ מִינִין אוֹמְרִים, הַרְבֵּה רָשֻׁיּוֹת בַּשָּׁמָיִם. וּלְהַגִּיד גְּדֻלָּתוֹ שֶׁל הַקָּדוֹשׁ בָּרוּךְ הוּא, שֶׁאָדָם טוֹבֵעַ כַּמָּה מַטְבְּעוֹת בְּחוֹתָם אֶחָד וְכֻלָּן דּוֹמִין זֶה לָזֶה, וּמֶלֶךְ מַלְכֵי הַמְּלָכִים הַקָּדוֹשׁ בָּרוּךְ הוּא טָבַע כָּל אָדָם בְּחוֹתָמוֹ שֶׁל אָדָם הָרִאשׁוֹן וְאֵין אֶחָד מֵהֶן דּוֹמֶה לַחֲבֵרוֹ. לְפִיכָךְ כָּל אֶחָד וְאֶחָד חַיָּב לוֹמַר, בִּשְׁבִילִי נִבְרָא הָעוֹלָם. וְשֶׁמָּא תֹאמְרוּ מַה לָּנוּ וְלַצָּרָה הַזֹּאת, וַהֲלֹא כְבָר נֶאֱמַר (ויקרא ה) וְהוּא עֵד אוֹ רָאָה אוֹ יָדָע אִם לוֹא יַגִּיד וְגוֹ'. וְשֶׁמָּא תֹאמְרוּ מַה לָּנוּ לָחוּב בְּדָמוֹ שֶׁל זֶה, וַהֲלֹא כְבָר נֶאֱמַר (משלי יא) וּבַאֲבֹד רְשָׁעִים רִנָּה:
(5) How does the court intimidate the witnesses in giving testimony for cases of capital law?
They would bring the witnesses in and intimidate them by saying to them: Perhaps what you say in your testimony is based on conjecture, or perhaps it is based on a rumor, perhaps it is testimony based on hearsay, e.g., you heard a witness testify to this in a different court, or perhaps it is based on the statement of a trusted person. Perhaps you do not know that ultimately we examine you with inquiry and interrogation, and if you are lying, your lie will be discovered.
The court tells them: You should know that cases of capital law are not like cases of monetary law. In cases of monetary law, a person who testifies falsely, causing money to be given to the wrong party, can give the money to the proper owner and his sin is atoned for. In cases of capital law, if one testifies falsely, the blood of the accused and the blood of his offspring that he did not merit to produce are ascribed to the witness’s testimony until eternity. The proof for this is as we found with Cain, who killed his brother, as it is stated concerning him: “The voice of your brother’s blood [demei] cries out to Me from the ground” (Genesis 4:10). The verse does not state: Your brother’s blood [dam], in the singular, but rather: “Your brother’s blood [demei],” in the plural. This serves to teach that the loss of both his brother’s blood and the blood of his brother’s offspring are ascribed to Cain. The mishna notes: Alternatively, the phrase “your brother’s blood [demei],” written in the plural, teaches that that his blood was not gathered in one place but was splattered on the trees and on the stones.
The court tells the witnesses: Therefore, Adam the first man was created alone, to teach you that with regard to anyone who destroys one soul from the Jewish people, i.e., kills one Jew, the verse ascribes him blame as if he destroyed an entire world, as Adam was one person, from whom the population of an entire world came forth. And conversely, anyone who sustains one soul from the Jewish people, the verse ascribes him credit as if he sustained an entire world.
The mishna cites another reason Adam the first man was created alone: And this was done due to the importance of maintaining peace among people, so that one person will not say to another: My father, i.e., progenitor, is greater than your father. And it was also so that the heretics who believe in multiple gods will not say: There are many authorities in Heaven, and each created a different person. And this serves to tell of the greatness of the Holy One, Blessed be He, as when a person stamps several coins with one seal, they are all similar to each other. But the supreme King of kings, the Holy One, Blessed be He, stamped all people with the seal of Adam the first man, as all of them are his offspring, and not one of them is similar to another. Therefore, since all humanity descends from one person, each and every person is obligated to say: The world was created for me, as one person can be the source of all humanity, and recognize the significance of his actions.
The mishna continues: The mitzva to establish a Sanhedrin with the authority to administer capital punishments is in effect both in Eretz Yisrael and outside Eretz Yisrael. A Sanhedrin that executes a transgressor once in seven years is characterized as a destructive tribunal. Since the Sanhedrin would subject the testimony to exacting scrutiny, it was extremely rare for a defendant to be executed.
Rabbi Elazar ben Azarya says: This categorization applies to a Sanhedrin that executes a transgressor once in seventy years.
Rabbi Tarfon and Rabbi Akiva say: If we had been members of the Sanhedrin, we would have conducted trials in a manner whereby no person would have ever been executed.
Rabban Shimon ben Gamliel says: In adopting that approach, they too would increase the number of murderers among the Jewish people. The death penalty would lose its deterrent value, as all potential murderers would know that no one is ever executed.
(ו) הָאִשָּׁה שֶׁהִיא מַקְשָׁה לֵילֵד, מְחַתְּכִין אֶת הַוָּלָד בְּמֵעֶיהָ וּמוֹצִיאִין אוֹתוֹ אֵבָרִים אֵבָרִים, מִפְּנֵי שֶׁחַיֶּיהָ קוֹדְמִין לְחַיָּיו. יָצָא רֻבּוֹ, אֵין נוֹגְעִין בּוֹ, שֶׁאֵין דּוֹחִין נֶפֶשׁ מִפְּנֵי נָפֶשׁ:
(6) If a woman is having trouble giving birth,
they cut up the child in her womb
and brings it forth limb by limb,
because her life comes before the life of [the child].
But if the greater part has come out,
one may not touch it,
for one may not set aside one person's life for that of another.
§ Rav Huna says: If a minor was pursuing another person in order to kill him, the pursued party may be saved with the pursuer’s life. That is to say, one is permitted to save the pursued party by killing the minor who is pursuing him, and one does not say that since the minor lacks halakhic competence, he is not subject to punishment. The Gemara explains: Rav Huna maintains that a pursuer, in general, does not require forewarning, and there is no difference with regard to this matter between an adult and a minor. The essence of the matter is rescuing the pursued party from death, and therefore the pursuer’s liability to receive the death penalty is irrelevant.
Rav Ḥisda raised an objection to Rav Huna from a baraita: If a woman was giving birth and her life was being endangered by the fetus, the life of the fetus may be sacrificed in order to save the mother. But once his head has emerged during the birthing process, he may not be harmed in order to save the mother, because one life may not be pushed aside to save another life. If one is permitted to save the pursued party by killing the minor who is pursuing him, why is this so? The fetus is a pursuer who is endangering his mother’s life. The Gemara answers: This is not difficult, as it is different there, with regard to the woman giving birth, since she is being pursued by Heaven. Since the fetus is not acting of his own volition and endangering his mother of his own will, his life may not be taken in order to save his mother.
And Antoninos said to Rabbi Yehuda HaNasi: From when is the soul placed in a person? Is it from the moment of conception or from the moment of the formation of the embryo, forty days after conception?
Rabbi Yehuda HaNasi said to him: It is from the moment of the formation of the embryo.
Antoninos said to him: That is inconceivable. Is it possible that a piece of meat could stand for even three days without salt as a preservative and would not rot? The embryo could not exist for forty days without a soul. Rather, the soul is placed in man from the moment of conception.
Rav Ḥisda said: if she is pregnant, until forty days from conception the fetus is merely water. It is not yet considered a living being, and therefore it does not disqualify its mother from partaking of teruma.