The Harm That Leaves No Mark

The Hook

Two treatises meet today, and the seam between them is almost invisible. The laws of one who injures a person or property come to an end, and the laws of the murderer and the preservation of life begin, and if you were not watching the chapter numbers you could walk over the border without noticing. The last four rulings of the closing treatise are already using the word rodef, pursuer. The first chapter of the new one is about what you must do when a pursuer is in the room.

Put the three chapters side by side and they make an argument out of cases that look unrelated. A man renders his neighbor’s food unusable without altering its shape by a hair. A man points at a storehouse and says one sentence to someone with power. A man stands at the edge of the water and watches. Damage you cannot see, damage made of speech, and then no deed at all, which the Rambam cannot punish with lashes and calls very severe. Where does this law stop measuring what you did and start measuring what you allowed?

Chovel u’Mazik 7

The chapter opens on a loss the Torah, read strictly, does not recognize. When a person causes damage to a colleague’s property that is not evident to the eye, he is not liable under Scriptural law, because the object has not changed and its form has not been altered. Then the Sages overrule the eye and hold him liable for the amount by which the value fell, paid from the finest property he owns. The cases are about status rather than substance. He renders a colleague’s food ritually impure. He mixes produce into terumah so the whole becomes dimu’a. He lets one drop of wine used for idolatry fall into a barrel and forbids the entire quantity. Nothing is dented. Everything is lost.

And then the Rambam tells you what the ruling actually is, and the honesty of it is startling. It was a penalty prescribed by the Sages, enacted so that none of the ravagers would ruin a colleague’s produce and then excuse himself by saying there was nothing to pay. A penalty is not a debt, and two consequences follow in the same breath. If the man dies it is not expropriated from his estate, since the Sages imposed it on the one who transgressed and not on heirs who damaged nothing. And one who causes such damage inadvertently, or through forces beyond his control, pays nothing, because the penalty was aimed at a person who meant it.

Then the chapter maps harm done without being the final hand. A man throws his own utensil off a roof onto bedding, a second man pulls the bedding away, and the utensil shatters: the one who pulled it pays the whole damage, as though he had broken it with his hands, because the removal is the cause. Burn a colleague’s promissory notes and you owe the entire debt, though only if you admit the note was validated, that it was for that sum, and that the loss can no longer be collected. Push a man so his coin rolls into the sea, scrape the imprint off his dinarim, and you pay, because value left and you are the reason.

The limit is drawn just as carefully. A utensil falls toward bare ground with nothing to break its fall, and a man smashes it in mid air with a staff. He is not liable, because he broke only something certain to break, and so, the Rambam writes, it is as if he broke a broken utensil. The law will follow a cause a long way. It will not follow it into a loss that has already happened.

Chovel u’Mazik 8

Now the treatise turns to the moseir, the informer, and the mildness of the verb is the point. When a person informs about property belonging to a colleague and causes it to be taken by a strong, lawless person, he reimburses the owner from his finest property. He is liable although he handed over nothing and merely told the man where to look. And unlike the penalty of the earlier chapter, this is collected from his heirs after his death, because this is not a fence built by the Sages. This is damage.

The duress rulings are where the chapter gets its teeth. If he showed the property on his own volition, he pays. If he was compelled to show it he does not, and the Rambam is concrete about why: had he refused, he would have been beaten or killed. But if he took his colleague’s property and handed it over, he pays even under that same compulsion, because a person who saves himself with money belonging to a colleague must reimburse him. Read the two together and the line is exact. Fear can excuse your mouth. It cannot excuse your hands. And where the lawless man was already standing over the storehouse and its contents had come into his possession, a Jew compelled to cart them elsewhere owes nothing, because it is considered as if everything there had already been consumed by fire.

The informer who volunteered is granted no oath at all, not the severe one and not even the lighter one, because he is deemed wicked, and the Rambam writes that there is no disqualifying factor greater than this. Then the prohibition, stated plainly. It is forbidden to inform about a colleague to the gentiles and endanger his person or his property, even if the man is wicked and commits sins, even if he causes you irritation, and whoever does it will not receive a portion in the world to come. From there the chapter enters territory the Rambam treats with no appetite and no flinching: that a moseir may be killed even now, when the courts no longer administer capital punishment, and even before he informs, once he has declared his intention, been warned, and answered brazenly that he will inform anyway. These are the rulings of a community that one conversation could destroy, and the Rambam still narrows the license in his own voice. Once the man has informed, it appears to me, he writes, that it is forbidden to kill him, unless informing has become his pattern.

And then the treatise hands its vocabulary to the next one. A pursuer who smashes utensils while chasing someone, his victim’s or a stranger’s, owes nothing, since the pursuit already makes him liable to be killed. The pursued man owes nothing for the pursuer’s belongings, which are not dearer than his life, but pays for a stranger’s, because a person who saves his own life with someone else’s property must make restitution. And then the ruling that is not quite law. A third party who chases the pursuer to save the victim owes nothing for anything he breaks, the pursuer’s or anyone’s, and the Rambam says openly that this does not follow the letter of the law. It is a Rabbinic ordinance, enacted so that a person will not refrain from trying to save his colleague, or hesitate and proceed carefully while he chases. The treatise ends on a ship going down under its own cargo, where the man who throws the freight overboard owes nothing, since the cargo is a pursuer seeking to kill the passengers, and by lightening the ship, the Rambam says, he performed a great mitzvah.

Rotze’ach u’Shmirat Nefesh 1

The new treatise opens with two subjects under one name, the murderer and the preservation of life, and the first chapter holds both. Whoever kills a human being transgresses the commandment not to murder, and intentional murder before witnesses carries decapitation, whether he used an iron weapon or burned him with fire. The instrument is not the subject. What was taken is the subject. It is a mitzvah for the blood redeemer to carry out the execution, and the redeemer is defined without sentiment: whoever is fit to inherit the victim’s estate, man or woman. Where he is unwilling, unable, or absent, the court executes. And the Rambam presses into the hardest version, a father who kills his son, where the victim’s own son must act because the duty has fallen to him.

Then the ruling the chapter hangs on. The court is enjoined not to accept ransom from a murderer, not all the money in the world, and not even where the blood redeemer himself is willing to forgive. The reason is one clause: the soul of the victim is not the property of the blood redeemer but the property of the Holy One, blessed be He, who commanded that no ransom be accepted for the soul of a murderer. A grieving family may not settle, not because their grief is suspect but because they are not the creditor. And immediately he restrains everyone else: a willful murderer is not to be killed by the witnesses or by those who watched, but brought to court and sentenced, since he may not be put to death until he stands before the congregation in judgment.

Then the chapter pivots on a single word, already. That rule governs a man who has already done the thing. While a person is still pursuing a colleague to kill him, even if the pursuer is a minor, every Jew is commanded to save the one pursued, even at the cost of the pursuer’s life. Here the care becomes the teaching. A pursuer who was warned and keeps coming may be killed although he never acknowledged the warning, since he is still coming. But where the victim can be saved by damaging one of the pursuer’s limbs, that is what must be done: his hand, his leg, his sight, anything that stops him short of his objective. Only where there is no way to aim may his life be taken. On that basis the Sages ruled that where a birth cannot proceed and the mother is in danger the child in her womb is treated as a pursuer and may be removed, and that once the head has emerged it may not be touched, because one life is not set aside for another.

The same law covers one pursuing a consecrated maiden to violate her, since Scripture equates that crime with murder. But the limits are as much law as the license. One running to desecrate Shabbat or to serve idols may not be struck down in advance, although both are foundations of the faith; that case waits for the court. Once the pursuer has seized his victim and begun, he goes to court instead. And if the pursued woman calls to her rescuers to let him be out of fear for her life, they are not to listen. Then the ruling almost nobody expects. A rescuer who could have stopped the attack by maiming the pursuer, did not take the trouble, and killed him instead, is regarded as one who shed blood and liable for death, although the court does not execute him.

And the second half of the title arrives. Whoever can save another person’s life and fails to do so transgresses the commandment not to stand idly by while your brother’s blood is at stake. The list is almost domestic. A colleague drowning at sea, or set upon by robbers or a wild animal, where you could save him yourself or hire others to save him. People conspiring to harm him or laying a snare, and you do not pass on the warning. A man of force with a grievance whom you could have appeased on his behalf, and you did not. One who watches a pursuit and does nothing breaks three commandments at once, and no lashes are given, since no forbidden deed was performed, and the Rambam says they are nevertheless very severe. Whoever destroys a single soul is as though he destroyed the entire world, and whoever saves one is as though he saved the entire world.

The Unifying Principle

Three chapters, and one line of travel: the law moving steadily away from the hands. It begins by refusing to let the shape of an object be the measure of a loss, because a barrel nobody may drink is a barrel destroyed. It moves to a man who did nothing but speak, makes him pay from his best property, will not let him swear, and takes the payment from his children after he is gone. And it ends with a transgression that has no act in it at all. By the last halacha of the day the question is no longer what you broke. It is what became of someone because you were in the room.

And the two treatises share one sentence, which is why they share a border. The soul of the victim is not the property of his family but the property of the Holy One. That clause does two jobs at once: it makes ransom impossible, since nobody can waive what he does not own, and it makes absence impossible, since a stranger’s life was never a stranger’s private business. It also explains the strangest ruling of the day, the Sages writing off the rescuer’s broken door on their own authority, because they would rather absorb the cost of a smashed window than let a man do arithmetic while someone is being hunted.

The Alter Rebbe laid the ground for this in the thirty second chapter of the Tanya, where he teaches that bodies are what divide people and souls are what do not, since all souls are of one root in one Father. Read Leviticus through that and the commandment stops sounding like generosity. Your brother’s blood is at stake is a description. The Baal Shem Tov taught that nothing a person encounters is accidental, that providence places a soul exactly where it stands, so the one who happens to be near the water was not happening to be there. And the Lubavitcher Rebbe returned often to the last line of this chapter, that a single soul is an entire world, which is why no sum of money can stand opposite it.

This is the week of Lech Lecha, which has already shown both halves of the day. Avraham hears that his nephew has been taken captive and goes after an army the same day, under no obligation any court could name. And when the king of Sodom offers him the recovered goods, he will not take so much as a thread. Go after a life, refuse the payment.

Modern Application

Almost nobody reading this will stand in front of a pursuer. Everybody reading this lives in chapters seven and eight. We do invisible damage constantly now, because so much of what we own is status rather than substance: a reputation, a certification, a dataset, a clearance, a name on a list. Nothing is dented and everything is lost, and the law says the eye was never the measure. We also live in the chapter of the man who only pointed. A sentence to someone with power over another person is an act with a price on it, and the Rambam is not asking whether you intended the consequence. He is asking whether you volunteered the information.

And then the list, which is not a list about courage. Hiring others counts, which means money counts. Passing on a warning counts, which means a sentence counts. Appeasing an angry party on your friend’s behalf counts, which means an awkward conversation counts. Every case the Rambam chose is one where the rescuer is safe and merely inconvenienced. The danger excuse is removed so that only the indifference excuse is left standing, and then he names that one a transgression.

The Closing

A treatise that began by pricing a hand ends on a man pointing at a storehouse, and the treatise that follows closes its first chapter on a man who watched a plan take shape and said nothing to anybody. No act. No lashes. Nothing for a court to see. Very severe.

The Sages built one penalty so that a ravager could not claim nothing was touched, and one exemption so that a rescuer would not stop to count what he was about to break, and the two fences face each other across these chapters. You cannot excuse yourself by saying there is no mark, and you cannot excuse yourself by saying something would be damaged. One world lost when a single life is destroyed, one world saved when a single life is held onto, and nowhere in the day a line that lets you call it somebody else’s.