HOMICIDE


The shedding of blood (shefikhut damim) is the primeval sin (Gen. 4:8) and throughout the centuries ranks in Jewish law as the gravest and most reprehensible of all offenses (cf. Maim. Guide, 3:41, and Yad, Roẓe'aḥ 1:4); "violence" in Genesis 6:13 was murder (Gen. R. 31:6), and the "very wicked sinners" of Sodom (Gen. 13:13) were murderers (Sanh. 109a). Bloodshed is the subject of the first admonition of a criminal nature in the Bible: "Whoever sheds the blood of man by man shall his blood be shed; for in His image did God make man" (Gen. 9:6). God will require a reckoning for human life, of every man for that of his fellow man (Gen. 9:5). Blood unlawfully shed cries out to God from the ground (Gen. 4:10) and "pollutes the land, and the land can have no expiation for blood that is shed on it except by the blood of him who shed it" (Num. 35:33) (see *Bloodguilt). Blood unlawfully shed is innocent blood (dam naki) (Deut. 19:10, 13; 21:8; 27:25; I Sam. 19:5; II Kings 21:16; 24:4; Isa. 59:7; Jer. 2:34; 7:6; 19:4; 22:3, 17; Joel 4:19; et al.), of the righteous (Ex. 23:7; II Sam. 4:11; I Kings 2:32; Lam. 4:13), or blood shed "without cause" (dam ḥinnam) (I Kings 2:31; I Sam. 25:31). "Blood" is also often used as a term indicating general lawlessness and criminality (Isa. 1:15; Prov. 1:16, 18), "men of blood" are lawless criminals (II Sam. 16:7–8; Prov. 29:10), and "cities of blood" places of corruption and wickedness (Nah. 3:1). Following the biblical reference to the image of God (Gen. 9:6), it is said that all bloodshed is a disparagement of God's own image (Tosef., Yev. 8:4; Gen. R. 34:4), and caused God to turn away from the land, the Temple to be destroyed (Tosef., Yoma 1:12; Shab. 33a; Sif. Num. 161) and dispersion (galut) to come into the world (Avot 5:9; Num. R. 7:10).

Killing is prohibited as one of the Ten Commandments (Ex. 20:13; Deut. 5:17), but the death penalty is prescribed only for willful murder (Ex. 21:12, 14; Lev. 24:17, 21; Num. 35:16–21; Deut. 19:11), as distinguished from unpremeditated manslaughter or accidental killing (Ex. 21:13; Num. 35:22,23; Deut. 19:4–6). In biblical law, willfulness or premeditation is established by showing either that a deadly instrument was used (Num. 35:16–18) or that the assailant harbored hatred or enmity toward the victim (Num. 35:20–21; Deut. 19:11). The willful murderer is executed, but the accidental killer finds asylum in a *city of refuge. The following special cases of killing are mentioned in the Bible: causing the death of a slave by excessive chastisement (Ex. 21:20–21) – the injunction "he shall surely be punished" (ibid.) was later interpreted to imply capital punishment (Sanh. 52b); when a man surprises a burglar at night and kills him, there is no "bloodguilt" on him – it is otherwise if the killing is committed during daytime (Ex. 22:1–2); a man is liable to capital punishment where death is caused by his ox which he knew to be dangerous and failed to guard properly (Ex. 21:29) – but the death penalty may be substituted by *ransom (Ex. 21:30); when death ensues as a result of assaulting a man "with stone or fist," though without intent to kill, the killing is regarded as murder (Ex. 21:18 e contrario; cf. also Mekh. Mishpatim, 6); when a man had been killed and the killer was unknown, a solemn ritual had to be performed (see *Eglah Arufah) in order that "the guilt for the blood of the innocent" should not remain among the people (Deut. 21:1–9).

Judicial murder was likewise regarded as "shedding the blood of the innocent" (Jer. 26:15; cf. Sus. 62) and hence as capital homicide (I Kings 21:19 as interpreted by Maim. Yad, Roẓe'aḥ, 4:9). Talmudic law greatly refined the distinctions between premeditated and unpremeditated homicide. Willful murder (mezid) was distinguished from "nearly willful" manslaughter (shogeg karov la-mezid), and unpremeditated homicide was subdivided into killings that were negligent, accidental, "nearly unavoidable" (shogeg karov le-ones), under duress (ones), or justifiable (Maim. Yad, Roẓe'aḥ Chs. 3–6). (For details of gradations of criminal intent, duress, and justification, see *Penal Law.)

"Justifiable" homicides include both those that are permissible, e.g., killing the burglar at night, and those that are obligatory, such as the participation in public executions (Lev. 20:2; 24:14; Deut. 17:7; 21:21; 22:21); killing a man in self-defense (Sanh. 72a), or to prevent a man from killing another or from committing rape (Sanh. 8:7); or the killing, in public, of persistent heretics and apostates (Maim. Yad, Roẓe'aḥ 4:10; Tur., ḤM 425). Failure to perform any such obligatory killing is regarded as a sin, but is not punishable (Maim. ibid. 1:15–16). Where heathens threaten to kill a whole group unless one of them is delivered up for being killed, they must rather all be killed and not deliver anyone; but if the demand is for a named individual, then he should be surrendered (TJ, Ter. 8:10 46b; Tosef., Ter. 7:20). While killing may be justifiable in self-defense or in defense of another's life (supra), the preservation of life (pikku'aḥ nefesh) in general does not afford justification to kill (Ket. 19a).

Talmudic law also further extended the principle that premeditation in murder is to be determined either by the nature of the instrument used or by previous expressions of enmity. While there are deadly instruments, such as iron bars or knives, the use of which would afford conclusive evidence of premeditation (Maim. Yad, Roẓe'aḥ, 3:4), the court will in the majority of cases have to infer premeditation not only from the nature of the instrument used, but also from other circumstances, such as which part of the victim's body was hit or served the assailant as his target, or the distance from which he hit or threw stones at the victim, or the assailant's strength to attack and the victim's strength to resist (ibid. 3:2; 5,6). Thus, where a man is pushed from the roof of a house, or into water or fire, premeditation will be inferred only when in all the proven circumstances – height of the house, depth of the water, respective strengths of assailant and victim – death was the natural consequence of the act and must have been intended by the assailant (ibid. 3:9). There is, however, notwithstanding the presence of premeditation, no capital murder in Jewish law, unless death is caused by the direct physical act of the assailant. Thus, starving a man to death, or exposing him to heat or cold or wild beasts, or in any other way bringing about his death by the anticipated – and however certain – operation of a supervening cause, would not be capital murder (ibid. 3:10–13). The same applies to murder committed not by the instigator himself, but by his agent or servant (ibid. 2:2; as to accomplices see *Penal Law).

As regards liability to capital punishment, it does not matter even that the victim was a newborn infant (Nid. 5:3; Maim., ibid. 2:6) provided he was viable for at least 30 days (ibid.), nor that the victim was so old or sick as to be about to die anyhow (Sanh. 78a; Maim. ibid. 2:7); but when a man was in extremis from fatal wounds inflicted on him by others, it would not be capital murder to kill him (ibid.). The categories of capital murder were thus drastically cut down by talmudic law: only premeditated murder, at the hands of the accused himself, committed after previous warning by two witnesses (hatra'ah, see *Evidence, *Penal Law), was punishable by death. *Execution was by the sword (Sanh. 9:1). The other, noncapital, categories of homicide – excluding homicides under duress and justification – could still be punished by the death penalty, either at the hands of the king or, in situations of emergency, even by the court (Maim. ibid. 2:4; and see *Extraordinary Remedies); failing this, in the language of Maimonides, "the court would be bound to administer *floggings so grave as to approach the death penalty, to impose *imprisonment on severest conditions for long periods, and to inflict all sorts of pain in order to deter and frighten other criminals" (ibid. 2:5). In this respect, homicide differs from all other capital offenses, for which either the prescribed capital punishment is inflicted or none at all; the reason is that homicide – as distinguished from other grave capital offenses, such as idolatry, incest, or the desecration of the Sabbath – "destroys the civilization of the world" (ibid. 4:9). In exceptional cases of excess of justification, as where the justificatory purpose could have been attained by means short of killing, or where the justificatory purpose allowed by law was exceeded, "He is deemed a shedder of blood and he deserves to be put to death. He may not, however be put to death by the court" (Maim. Yad, Roẓe'aḥ, 1:13). In post-talmudic times, homicides within the Jewish communities were relatively rare, and even the justifiable – including the obligatory – classes of homicide fell into obsolescence. Opinions differed in the various periods and various places as to what the proper punishment was to be: some early scholars held that no murderer should be executed, but only flogged and ostracized (see *Ḥerem; Natronai Gaon, quoted in Tur, ḤM 425; Or Zaru'a, Hilkhot Tefillah 112; Sha'arei Ẓedek 4:7, 38); others held that murderers should be executed, but not by the sword (Zikhron Yehudah 58; Resp. Ribash 251; Resp. Maharam of Lublin 138; et al.; cf. Ḥokhmat Shelomo, Sanh. 52b. On the law in the State of Israel see *Capital Punishment.

BIBLIOGRAPHY:

S. Mayer, Die Rechte der Israeliten, Athener und Roemer, 3 (1876), 522–33; S. Mendelsohn, Criminal Jurisprudence of the Ancient Hebrews (1891), 58–77; H. Vogelstein, in: MGWJ, 48 (1904), 513–53; M. Sulzberger, Ancient Hebrew Law of Homicide (1915); J. Ziegler, in: Festschrift Adolf Schwarz (1917), 75–88; S. Assaf, Ha-On-shin Aḥarei Ḥatimat ha-Talmud (1922), 147 (index), S.V. Roẓe'aḥ; ET, 1 (19513), 162–8, 282f.; P. Dickstein (Daykan) Dinei Onshin, 3 (1953), 720–30; J. Ginzberg, Mishpatim le-Yisrael (1956), 378 (index), S.V. Hereg, etc.; M.Z. Neriyah, in: Ha-Torah ve-ha-Medinah, 11–13 (19562), 126–47; D. Daube, Collaboration with Tyranny in Rabbinic Law (1965). ADD. BIBLIOGRAPHY: M. Elon, Ha-Mishpat ha-Ivri (1988), 1:126, 175, 224, 247, 283, 287, 290f., 300f., 423, 434, 435, 500, 569, 808f.; 2:845, 883, 995, 1274; 3:1426; idem, Jewish Law (1994), 1:142, 194, 253, 287, 334, 340, 344f., 357f.; 2:516, 530, 531, 609, 699, 990f; 3:1033, 1077, 1203, 1521; 4:1699; idem, Jewish Law (Cases and Materials) (1999), 369–388, 638–676; M. Elon and B. Lifshitz, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Sefarad u-Ẓefon Afrikah (legal digest), 2 (1986), 342; B. Lifshitz and E. Shochetman, Mafte'aḥ ha-She'elot ve-ha-Teshuvot shel Ḥakhmei Ashkenaz, Ẓarefat ve-Italyah (legal digest) (1977), 235; Y. Haba, "Mivḥanim li-Keviat Ramat ha-Asham be-Aveirat Reẓah ba-Mishpat ha-Ivri," in: Kiryat ha-Mishpat, 2 (5762), 265–93; A. Warhaftig, "Go'el ha-Dam," in: Tehumin, 11 (5750), 326–60; P. Segel, "Velo Tikḥu Kofer le-Nefesh RoẒe'ahLe-Pasluto shel Heskem le-Pidyon RoẒe'ah," in: Shenaton ha-Mishpat ha-Ivri, 13 (1987), 215–26.

[Haim Hermann Cohn /

Menachem Elon (2nd ed.)]


Source: Encyclopaedia Judaica. © 2008 The Gale Group. All Rights Reserved.