Halakhah su Levitico 24:17

Consequently, it becomes apparent that ensoulment is a matter of philosophical, rather than halakhic, interest. Similarly, "personhood" is not a category of halakhic discourse. To be sure, there are statements in the writings of early rabbinic authorities to the effect that a fetus is not to be categorized as a nefesh.⁸See Rashi, Sanhedrin 72b, s.v. yaẓa rosho. However, the concept of a "nefesh" is not to be equated with the connotative meaning of the term "person." A treifah, i.e., a person suffering the loss or perforation of one of a list of specifically defined vital organs⁹Cf., however, Rambam, Hilkhot Roẓeaḥ 2:9. is not a nefesh; but a treifah is certainly a person. Leviticus 24:17 provides that one who smites a nefesh shall be put to death. Talmudic exegesis of that verse as recorded in the Gemara, Sanhedrin 78a, yields a dispute with regard to capital culpability of one who hastens the death of a person who has already sustained a mortal wound at the hands of a previous aggressor. The disagreement is with regard to whether the phrase "kol nefesh" should be rendered as "a complete nefesh" or as "any nefesh" in the sense of even a minimal nefesh. Nevertheless, all are in agreement that there is no capital culpability for the killing of a treifah. Quite obviously, a treifah is not a nefesh and hence if a treifah is the victim of homicide the perpetrator is not guilty of a capital crime; yet for virtually all other aspects of Jewish law a treifah must certainly be regarded as a person. In an analogous manner, as already noted, a person who murders an individual who has already sustained a mortal wound is not executed because the victim is not a "complete nefesh"; yet there is no question that, so long as vital signs remain present, the victim remains a "complete person" for all other matters of law. As is the case with regard to many words and phrases employed in any legal system, the word "nefesh" is a technical term endowed with a narrow and precisely defined halakhic meaning that is not readily translatable into non-technical terms employed in common parlance.

Our Sages taught: If ten men struck a man with ten staves, whether simultaneously or one after the other, and he died, they are not liable. R. Judah ben Batyra said, if one after the other, the last is culpable because he hastened [the victim's] death. R. Yoḥanan said: Both engaged in exegetical interpretation of the same verse, "and he that killeth kol nefesh [lit., 'all life'] of man shall surely be put to death" (Leviticus 24:17). The Sages maintain that kol nefesh limits [culpability] to [the taking of] the whole life; R. Judah ben Batyra maintains that kol nefesh [implies] whatever there is of life.

Despite the rejection of the view by both Ramban⁶⁶Divrei Sha’ul, Yoreh De’ah 336:1, attempts to show that Ramban, as cited in Ran’s commentary on Rif, contradicts the position Ramban espouses in his Torat ha-Adam and is in agreement with Rabbenu Nissim’s view. However, as shown by Ẓiẓ Eli’ezer, IV, no. 13, sec. 3, Divrei Sha’ul’s analysis is not compelling. and Shulḥan Arukh, Ran's position is cited with approbation by the nineteenth-century authority, R. Joseph Saul Nathanson, Divrei Sha'ul, Yoreh De'ah 336:1. Divrei Sha'ul notes, as did Besamim Rosh before him, that a person who inadvertently commits a transgression in the course of attempting to fulfill a mizvah is exempt from the sacrificial offering required for expiation of inadvertent sin. By the same token, asserts Divrei Sha'ul, it would be reasonable to assume that if a person commits a tort in the course of fulfilling a mizvah there should be no financial liability in the eyes of Heaven. More significantly, the Gemara, Sanhedrin 84b, establishes that therapeutic "wounding" is not proscribed by the biblical prohibition against battery. The exclusion of therapeutic "wounding" is predicated upon a principle of rabbinic exegesis knows as a hekesh, i.e., the juxtaposition of two different legal categories, which has the effect of transposing one or more halakhic provisions already established in one of those categories to the other category. In this instance the hekesh is based upon the juxtaposition of references to the smiting of an animal and the smiting of a man in Leviticus 24:17-18. The Gemara declares, "Just as a person who smites an animal for therapeutic purposes is not liable so also a person who smites a man for therapeutic purposes is not liable." The inference to be drawn from that statement, argues Divrei Sha'ul, is that a person who inadvertently causes harm in the course of attempting to perform a therapeutic procedure is totally exonerated even in the eyes of Heaven, as is the case with regard to a person who causes harm to an animal in the course of a failed attempt to cure the animal. Divrei Sha'ul apparently regards the Gemara's formulation of this rule to be at variance with the rule posited by the Tosefta holding the physician accountable at the hands of Heaven and, applying usual canons of halakhic decision-making, Divrei Sha'ul asserts that the rule formulated by the Gemara should be given preference over that recorded in the Tosefta.⁶⁷See Ẓiẓ Eli’ezer, IV, no. 13, sec. 3.