The rule about the individual who murdered accidentally raises the question of who is considered to have done something by accident. In the Torah, it sounds as if we are talking about someone whose ax fell from his hand, whose rope holding the barrel became undone and so forth. In general, however, we define someone as having transgressed accidentally if he was unaware of the prohibition or did not realize that the prohibition applies to the particular circumstances in which he found himself. For example, someone who did not know that there is a prohibition in the Torah against eating helev – forbidden fats – or did not realize that the meat he was eating contained helev. Who, then, is an accidental murderer? It would appear that it should be a person who did not know that murder was forbidden or did not know that what he was doing was murder. It turns out, however, that the definition of an accidental murderer is a little bit different, and is derived from the differences between the two times that the accidental murderer is discussed in the Torah. The expression used by the Torah in our parasha is b’shegaga – "by accident," but the expression in Parashat Shoftim is bi’vli da’at "without knowledge."
The rabbinic sages do not approach this change of terminology as a repetition of the same idea in different words, rather they understand it as an attempt to clarify the meaning of the general concept. It appears that the discussion of this idea in the Talmud takes place with the underlying realization that this is not an ordinary accident, but an accident that indicates a lack of intention rather than a lack of understanding or knowledge. With this in mind, Abaye and Rava disagree about the status of an accidental murderer who did not suffer from a lack of knowledge. This individual was mistaken in that he did not understand that taking the life of another person was forbidden, and believed it to be a permissible act.
The Gemara asks: Why is a derivation necessary to exclude one who kills intentionally? It is obvious that he is not exiled; he is subject to the death penalty. Rather, Rava said: Say that the type of intentional killer referred to is meant to exclude an omer muttar - one who says that it is permitted to kill the victim.
Abaye said to Rava: If the reference is to an omer muttar, he is a victim of circumstances beyond his control, as he did not know any better. How could that be characterized as intentional?
Rava said to him: That is not a problem, as I say that with regard to an omer muttar, his action borders on the intentional.
BT Makot 7b
Rava suggests that someone who believes that it is permissible to murder cannot be defined as murdering by accident. It appears that Abaye agrees with Rava. The difference between them lies in the fact that Rava views such a person as karov le-meizid – being almost an intentional murderer – while Abaye believes that he is an anoos – he is not in control of his actions. After all, he believed – and perhaps was certain – that his act was a permissible one.
On what point do Abaye and Rava differ?
It appears that Abaye and Rava are discussing two different kinds of people.
Rava is talking about someone whose actions show that his murderous act was close to intentional. These are people who do not really know all the provisions of the law, but they are well aware of the fact that they are ignoring the need to place limits to their actions. Their tactic is to ignore the existence of social norms. They are indifferent to what is written in the law and what the law has to offer them as human beings. The fact that they close their eyes and run away from the law does not hide the clear message that they are broadcasting – what the law says does not really concern them. They may not have known that they were engaged in an illegal act, but they certainly knew that they were in a gray area of the law. This is certainly the case when we are discussing the taking of human life, an abhorrent act rejected by natural morality. It seems that the character before Rava's eyes is that of a person with a criminal orientation who is not interested in the law at all. This is his omer muttar. In general, it may be argued that anyone who says that he did not know about the existence of a specific section of the law may have not known the section of the law that contains that prohibition or the specific regulation that pertains to his case, but, at the same time, we must acknowledge that he made no effort whatsoever to learn about how they might affect his actions.
Abaye is talking about a different type of person. He is discussing the individual who has not had the opportunity to be exposed even to the simple provisions of law. This person may have grown up in a distressed neighborhood or an uncivilized country. He may not have acquired a formal education and had not been exposed to the idea that there is a set of laws to which he is subject. He may even be living according to the laws of the jungle in which he lives. Someone preoccupied with a constant war of survival will have a different set of values than a person who lived in civilized society were laws are established by external standards. In such situations, it is possible that a person will kill and based on the circumstances and his perception of values, will believe that he was justified in doing so.
Both of these cases – the omer muttar of Rava and the omer muttar of Abayye – might have been considered to be on the spectrum of what is usually considered to be “accidental.” But in the case of the murderer, the Torah has taught us that “accidental” must be much more precise and limited.
This discussion has significance well beyond the question of defining the accidental murderer. The issues raised by Abaye and Rava open the door to understanding that the schematic division of actions as being done be-meizid - “on purpose,” be-shogeg - “by accident,” and anoos - “beyond my control,” is too crude a division. For there will always be different typologies, consciousness and complexities that range far beyond these three frames of awareness.
The same problem arises elsewhere, in a discussion of a different subject, on the question of what wrongdoing may be atoned for by means of a sacrifice. In the context of the discussion of this question, which takes place in Tractate Horayot, the sages discuss the case of a mumar – an apostate. The person they are dealing with eats forbidden foods, not because he specifically desires them, but simply because he eats everything. He does not check whether a given food is kosher, as he is entirely indifferent to the kosher status of the foods that he eats. Where does this person stand if he accidentally eats a meat-and-cheese sandwich, when he was under the impression that the “meat” was really vegetarian? In this specific case, he really ate forbidden food accidentally, because he was mistaken about the situation. But can we really consider him to have eaten this food accidentally (be-shogeg)? Will you only be considered a shogeg if you are generally committed to Jewish law?
This is an opportunity to examine the case of another difficult-to-define situation. The Gemara relates:
One Sage holds: Since he intentionally eats forbidden fat due to appetite, he is an apostate.
And one Sage holds: Since if he finds food that is permitted he does not eat food that is prohibited, as he merely seeks to satiate his appetite, he is not an apostate.
TB Horayot 11a
Indeed, this case is subject to disagreement as to whether and to what extent a person's general behavior impacts on his status even at a moment when, in formal terms, he truly made a mistake due to a lack of knowledge. General indifference is not only an issue that must be examined at every point in time. It may be that this apathy is what leads the individual to make mistakes and to commit accidental wrongdoings. Therefore, this cannot be considered an accident in the full meaning of the word.
These discussions join together and require a new approach to defining the categories of meizid - “on purpose,” shogeg - “by accident,” and anoos - “beyond one’s control.” It appears to me that after careful study it will become clear that the categorical and dichotomous division that we are familiar with from the world of the boundaries of Jewish law misses the subtle nuances found in rabbinic literature that pertain to the life of a sinner.
