Halakhah su Deuteronomio 25:12

The controversy between Rabbi Eleazar ben Shimon and Rabbi Joshua ben Karḥah may well reflect disagreement regarding the level of certainty of impending loss of life that is required to trigger the law of pursuit. Even if Rabbi Joshua ben Karḥah did not himself appreciate the fact that the thieves were in actuality "pursuers" as well, once he heard Rabbi Eleazar ben Shimon declare "I am destroying thorns in the vineyard" Rabbi Joshua ben Karḥah's retort "Let the Master of the vineyard come and eradicate his thorns" is entirely inappropriate. Rabbi Joshua ben Karḥah acquiesces in the assignment of the appellation "thorns" to the evildoers. If so, to refrain from taking action against them would constitute a violation of the biblical command "And you shall cut off her hand, your eye shall not have pity" (Deuteronomy 25:12).³⁶Rambam, Hilkhot Roẓeaḥ 1:7, records the law of the “pursuer” as being predicated upon this verse.

The law of pursuit has two distinct formulations. When the pursuer is intent upon the death of his victim there is an absolute duty to eliminate such threat. Even a bystander must intervene and dare not plead that he declines to save one human life at the cost of another. Rambam, Hilkhot Rozeaḥ 1:9, writes, "This, too, is a negative commandment: not to spare the life of a pursuer." The positive obligation is cited by Rambam, Hilkhot Rozeaḥ 1:7, and predicated upon the verse "And you shall cut off her hand, your eye shall not pity her" (Deuteronomy 25:12). Yet another formulation of the law of pursuit is found in Exodus 22:1: "If a thief be found breaking in, and be smitten that he die, there shall be no blood shed for him." Scripture here provides that one who kills a thief incurs no punishment. The Gemara, Sanhedrin 72a, explains that it is to be assumed that a person will not permit his property to be seized unlawfully without offering resistance. The thief is deemed to be well aware of this instinctive psychological reaction and hence it is presumed that he is prepared to use lethal force should he meet with resistance in carrying out his design. Accordingly, the thief is presumed to be a "pursuer" whose life is forfeit. However, in codifying this law, Rambam, Hilkhot Geneivah 9:7, states only that "All persons have permission to kill [the thief] whether on a weekday or on the Sabbath" but fails to posit an absolute obligation to eliminate the thief as a pursuer. It may be posited that the distinction between the thief who is the subject of this ruling and the aggressor described in Hilkhot Rozeaḥ whose life is always forfeit lies in the fact that the latter is actually intent upon an act of aggression while the former, although he may become an aggressor, is not yet engaged in an actual act of aggression. Elimination of the thief is a preemptive act. Such an act is permissible but is not mandatory.

The commandment to save the pursued with the life of the pursuer: That we were commanded to save the pursued from one who is pursuing him to kill him, and even [at the expense of] the life of the pursuer - meaning to say, that we are commanded to kill the pursuer if we are not able to save the pursued unless we kill the pursuer. And about this is it stated (Deuteronomy 25:12), "You shall cut off her hand; show no pity." And they said in Sifrei (see Sefer HaMitzvot LaRambam, Mitzvot Ase 247), "'And she seizes him by his genitals' - and just like that place is distinguished by a danger to life (sakanat nefashot) and it says about it, 'You shall cut off her hand'; so too anything that has a danger to life, behold it is [included] in 'You shall cut off her hand.' And from where [do I know] that if he cannot save him with only her hand, that he is obligated to save him with her life? [Hence,] it teaches us to say, 'show no pity.'" And that which the verse stated "the wife of one," [is because] the verse was speaking according to what is common; as the wife of a person is always with him and tries to save him from his attacker with all of her strength; but it is the same with any person.