The Rambam states in that there are three distinct types of unintentional killers:
1.) One who kills b’shgagah. This is defined as the state of mind possessed by one whose act is completely unforeseen. This category is referred to states in Sh’mos 21:12: v’asher lo tzadah–who did not lie in ambush. The punishment that applies to such a person is galus, whereby he is exiled to one of the arei miklot in order to receive a kaparah for his actions and to find refuge from the goel hadam who would not be penalized for exacting vengeance.
2.) One who kills b’shgagah korov l’oness, which describes the mental state of one who could not only not foresee the death as an outcome of his actions, but the killing was a wonderment which would not have occurred in the same circumstances in the majority of cases. This person is exempt from galus and if the goel hadam were to kill him, the avenger would be sentenced to death by the beis din.
3.) One who kills b’shgagah karovah l’zadon. This pertains to a person who acted with an attitude of wanton recklessness. His sin is considered too great for galus, he is prevented from receiving a kaparah and is not afforded any protection from the goel hadam, who is permitted to exact retribution without fear of capital punishment.
There exists a fundamental condition attached to the law of the pure shogeg (category 1), as taught by the Mishnah in Makkos 6b. The general rule is that if this type of unintentional killer was travelling in a downward direction at the time when the cause of death was set in motion, he is liable to be sent to galus since such an action is deemed to have been committed b’shogeg. However, if the offender was not descending at this time, he is exempt from galus. The Mishnah exemplifies this principle with several scenarios, one of which is involves a man who was climbing down a ladder when a rung broke causing him to fall on top of the victim below, who perished as a result. This is considered to be a case of shogeg and the defendant is sentenced to galus. However, if the killer was ascending when he slipped and fell he is exempt. The Gemara explains that the reason for this distinction is the verse in Bamidbar 35, where the Torah states that an inadvertent killer who is liable for galus is one who, ‘V’yapeil alav v’yamus’—And he fell on him and he died. Chazal expound this phrase to teach that the killer must be moving in a downward direction in a derech nefillah (the way of falling) in order to be liable for galus.
The Rambam provides a rationale for the Torah’s distinction between descent and ascent. He submits that the reason why the one who was ascending the ladder is exempt is because it is as if he were coerced, thus falling under category 2. Indeed, in most cases, that fatal outcome would not have occurred. Therefore, the killer’s culpability is beneath the threshold required for the punishment of galus.
In contrast, if the killer was descending the ladder at the crucial moment, the Rambam reasons that in such a case there is a greater risk of injuring others because it is a rule of nature that weight is pulled in a downward direction with rapidity. (It is interesting to note that the Rambam, writing approximately 200 years before Newton, was not that far away from the theory of gravity!) Therefore, if someone did not take proper care at the time of his descent, he will be liable to galus.
What is the correct perspective in terms of defining the culpability of one who kills b’shogeg? We have learnt that such behaviour is sufficient to deserve galus; however, galus is more of a refuge and a kaparah zone, rather than a brutal onesh. Moreover, the Rambam describes the shogeg mindset as totally blind to the outcome of his actions. Nonetheless, there appears to be some level of criminal negligence and blameworthiness associated with a shogeg. We are left with the question, what proportion of blame may be attributed to one who kills b’shogeg, requiring a kaparah, and to what extent is the death the result of Divine intervention?
Perhaps the answer can be found in Parashas Mishpatim, 21:12-13, wherein the Torah declares that, ‘makeh ish va’meis mos yumas; v’asher lo tzadah v’ho’elokim inah l’yado v’samti l’cha makom asher yanus shamah.’ – ‘One who strikes a man and he will die, he (the killer) shall be put to death; and if he did not lie in ambush and God placed it in his hand and I shall place for you a place to where he may flee’.
As Rashi interprets, the pasuk is referring to the laws pertaining to intentional and inadvertent killing; the one who murders deliberately receives the death penalty, whereas the individual who did not intend to kill is exiled. Philosophically, a most striking element within the verse is that we are being taught that Hashem arranges for such inadvertent killings to take place. Onkelos translates inah as it’m’sar, to transmit or to hand over, while Rashi writes that it is an expression akin to zaman, to invite or summon (this is an example of a word in lashon hakodesh upon which the English equivalent is based). This demonstrates that, at times, G-d deliberately causes a person’s death via human agency.
To explain this notion, Rashi cites a Medrash that depicts a saying of David HaMelech. The Medrash reports that the monarch stated that the Torah tells us ‘m’rashaim yeitzei resha’- from evil-doers comes out evil. Where does the Torah convey this? From our posuk: ‘v’ho’elokim inah l’yado’, which refers to a situation involving two people, one who killed inadvertantly and one who killed on purpose. However, in both cases there were no witnesses to enable the prosecution of either offender. Consequently, the unintentional killer was not ordered to go to galus and the murderer did not receive the death penalty. The Medrash, quoted by Rashi, continues by teaching that, in such a case, Divine intervention may arrange for these two killers to arrive at the same public house. The one who killed deliberately ends up sitting below a ladder and the inadvertent killer climbs up the ladder and subsequently falls on top of the killer beneath him with fatal consequences. Conveniently, on this occasion there were witnesses, thus enabling the beis din to send the shogeg to galus, which he was liable for anyway, while the intentional killer has already received his just deserts.
The glaring question is, how can Rashi quote the Medrash as teaching that the shogeg was climbing up the ladder (oleh ba’sulam) before he fell onto the person below. Surely it is the clear ruling of the aforementioned Mishnah in Makkos that in such a case, the individual is in fact exempt from galus. This problem is compounded by the actual reading of this Mechilta, as quoted in the Gemara in Makkos 10b. There, the text reads that the shogeg killer was descending the ladder (yored b’sulom) at the time of his fall. In that case, with what licence did Rashi not only alter the text of this Medrash, but give a misrepresentation of the correct halachah? This cannot be a simple mistake for we are dealing with Rashi, who the Meiri dubs greatest of the commentators.
The Sifsei Chachomim and the Mizrachi both opt for a rather ‘lav davka’ approach to resolve this conundrum by concluding that of course Rashi meant that when the killer fell he was moving downwards. Rashi merely refers to the fact that the shogeg went up the ladder so that it was possible for him to descend before falling. This may be true but it remains perplexing as to why Rashi so conspicuously deviates from the text of the Medrash as quoted by the Gemara and thereby risk halachically misleading the reader.
Enter the Maharal in his opus, Gur Aryeh. He contends that the sole message of the Medrash was to convey the extent of Divine intervention into human affairs. Therefore, Rashi deliberately changed the text in order to emphasize that the man’s ascent up the ladder was not the result of his own free choice, but rather, was entirely engineered by the Celestial chess player. The descent down the ladder however, was not the outcome of Divine programming and is thus irrelevant to the Medrash’s agenda. This approach not only absolves Rashi, but provides a scintillating insight into the Yad Hashem which clandestinely arranges earthly goings on in order to bring out justice and retribution.
Furthermore, this yesod assists us in our inquiry as to the correct understanding of the shogeg killer. This person is certainly subject to the Divine master plan, who leads him up the ladder. Nonetheless, the act of killing must contain an element of moral blameworthiness and G-d does not force you to sin under duress. It is within this person’s bechirah to be watchful of his actions, as it is axiomatic that he would not be exiled without deserving it. Thus, his descent must have been the result of his autonomous free will. These insights not only alert us to the penetrating truths of our holy Torah, but reveal extent of Hashem’s awesome jurisdiction over our existence.
