Tuesday, July 17, 2007

Can the גואל הדם kill the רוצח before the גמר דין?

In last week's parsha (מסעי) we had the dinim relating to a רוצח בשוגג. The question comes up can the גואל הדם kill the רוצח before the גמר דין?

At first glance it makes no sense, who says the guy is even guilty? However, the simple reading of the Gemara in Makos (10b) would seem to say yes.

This is actually a machlokes in the later acharonim. R' Shach (Avi Ezri Hilchos Rotzeach 5:9) states as a דבר פשוט that the גואל הדם cannot kill the רוצח before the גמר דין. After all, maybe he is פטור from גלות (e.g. קרוב לאונס). He explains the Gemara as saying that the גואל הדם can kill the רוצח after the גמר דין on the way to the עיר מקלט. The Chazon Ish (Likutim on Choshen Mishpat Siman 23) disagrees based on the Rambam (Hilchos Rotzeach 5:10) who seems to say that he can be killed even before the גמר דין. The Chazon Ish also brings a proof from the Gemara in Sanhedrin 49a (ע"ש). The Meiri also seems to say like this.

The קצות (Chosehn Mishpat Siman 2 Sif Katan 1) discusses a similar situation. He points out that by a רוצח במזיד without התראה or even שוגג קרוב למזיד, there is no psak din and yet the גואל הדם is allowed to kill the רוצח. We see from here that the גואל הדם can kill even without a גמר דין. On the other hand the קצות says that it doesn't make sense to say that he can be killed before the case even comes before בית דין, we haven't even established the facts. The קצות would seem to support the position of R' Shach that in the initial flight of the רוצח the גואל הדם would be prohibited from killing him because the facts have not yet been established. The Chazon Ish (based on the Rambam and Gemara in Sanhedrin) seems to disagree. The
Chazon Ish does not offer any סברה and his position seems very difficult, how can the גואל הדם kill the רוצח before the facts have even been established? Maybe he is not חייב גלות?


ADDeRabbi said...

i think a more fundamental question has to be asked first: how do we understand the go'el ha-dam's right to kill the accidental rotzeach? is it a result of a 'psak din' that this fellow is a rotzeach be-shogeg? or is it a concession to the next-of-kin's desire to avenge his murdered relative? this may be linked to the machloket between r' akiva and r' yosi about whether the go'el has a 'chiyuv' or a 'reshut', and whether anyone else has a reshut as well. similarly, we always try to talk the go'el ha-dam out of it. and isn't there a halacha that the go'el has a din rodef vis a vis the rotze'ach - that the rotze'ach can defend himself? if that's the case, it seems clear that this is not a concession which the Torah ultimately frowns upon.

Beisrunner said...

The Torah expects that the killer will flee to the city of refuge, then be taken away for trial, then (perhaps) returned. But why would he flee in the first place, if he couldn't be killed before trial?

As for concern about killing someone who may be innocent, remember that the goel hadam would eventually have to answer for what he did. If the "rotzeach" was not in fact a killer, then the goel hadam is a murderer and would eventually be punished as such. That is a considerable incentive to clarify the facts before engaging in vengeance.

Basically, the institution of geulat dam makes no sense if it only happens in court. But it does make sense as I have described above.

bluke said...

It makes a lot of sense after the case in Beis Din where he was judged to be a rotzeach b'shogeg. In that situation the goel hadam can kill him.

The alleged rotzeach goes to the ir miklat not necessarily for protection.

I am not so sure that the goel hadam would ever be punished. If the goel hadam had a reasonable reason to think that the alleged person was the killer (b'shogeg) he is not punished.