Self Defense

וַיִּירָ֧א יַֽעֲקֹ֛ב מְאֹ֖ד וַיֵּ֣צֶר ל֑וֹ.  What was he so afraid and worried about?  Rashi says וַיִּירָא שֶׁמָּא יֵהָרֵג, וַיֵּצֶר לוֹ אִם יַהֲרֹג הוּא אֶת אֲחֵרִים.  The Moshav Zekanim asks why is Yaakov afraid that he may kill, he can kill first in self defense?  He answers that he was afraid that he could have saved himself by merely inflicting damage and he may kill instead. 

The Mizrachi however is clear that in regard to Esau himself, who that was coming to kill Yaakov, there would be no limitations on Yaakov to try to avoid killing Easua for the rule of השכם והורגו gives free reign to kill the assailant.  He cites a Midrash that Yaakov was worried that if he kills Esau that his father would curse him, not because of the act of killing itself.  He adds that for the soldiers approaching with Esau however, he indeed would only have been allowed to maim them to protect himself as they were not coming solely to kill Yaakov.  According to the Mizrachi there seems to be a dispensation due to the rule of השכם והורגו that one who is being threatened to be killed is not bound by the rules of rodaf to limit the damage to the attacker but is given free reign to kill the attacker.  What is it about השכם והורגו that allows one to represe an attacker in self-defense without making any effort of avoiding killing? 

Rav Shmuel Rozovsky elaborates on this idea in Zichron Shmuel siman 83 and develops that there are two distinct parshios regarding stopping an attacker.  One halacha is that of a rodaf which obligates anyone that can to step in and save the attacked in order to save the individual being attacked.  This is not due to the rodaf forfeiting his life due to his act of attack but rather it is totally a law to protect the chased (see Rav Chayim law of Rotzeach Ch. 1.)  In regard to this law, there is no heter to kill the rodaf, it is only if it is the only means available to save the person under threat.  However, the law of השכם והורגו derived from בא במחתרת says that when an individual finds himself under threat, he has no issurim to worry about when employing self defense.  In other words, the attacked has no restrictions in place when using self defense and hence he doesn't have to make calculations to diminish the damage used in protection.  Or in the words of Rav Kook (Mishpat Konan siman 139,) using Talmudic language, for the attacked, the life of the rodaf is הותרה, he has no issurim when employing self defense but for the others the life of the rodaf is merely דחויה to save the attacked.  

Another area where we find a difference between the chased vs. a bystander is regarding if the rodaf needs to be warned before one kills him.  Although the Gemarah has a debate if the rodaf needs to be warned (Sanhedrin 72b-73a,) and the Rambam (Rotzeach 1:7) says one should attempt to warn the rodaf, the Rivash (Teshuva #238) suggests the one being attacked does not need to extend any warning against his attacker.  This is cited in Mishne L'meelch Choval (8:10) and see the words of the מגיה there.  The Achronim wish to explain the words of the Rivash in the same vein that for a defendant of his own life there are no rules involved.  However, it is noteworthy that the Rivash does not just say it is a whole other parsha of  השכם והורגו distinct form rodaf, but employs a practical sevarah that when one's life is in danger they do not think clearly.  In which case he may not go so far as to agree to the Mizrachi.  This point is noted by Rav Ovadia in Yabia Omer volume 4 Choshen Mishpat teshuva 5, although he seems to suggest the same sevarah as an explanation of the din of the Mizrachi.  (צ"ע does the practical sevarah function all in the same parsha of rodaf or is why one's self defense would be a separate parsha.) 

Rav Yosef Engel (Beis Haotzer Klal א אות טו cited in Teferes Yosef on the parsha,) is unsure whether the din of השכם והורגו should apply to a gentile or it is a chiddush din said for a Jew.  And if it is said only for a Jew why would the Mizrachi employ the sevarah to Yaakov's benefit?  He cites a proof from Tosfos Avodah Zarah (10b ד"ה חד) that it does apply even to a gentile and R.Y.E. says it must since השכם והורגו is a severah, even though it is derived from a unique parsha in Torah, it applies even to a gentile.  However, in Gilyonai Hashas Sanhedrin (72a) R.Y.E. ends with a צ"ע on the Tosfos if the din is derived from a possuk why would it apply to a gentile?  R.Y.E. there cites two possible sources for the law.  One is בא במחתרת as Rashi Berachot (58a) says but he also cites a Chizkuni Pinchas (25:18) that says כי צררים הם לכם מכאן אמרו אם בא להרגך השכם להרגו (based upon the Midrash there.)  Either way, in Gilyonai Hashas, R.Y.E. understands it is a chiddush din and should not apply to a gentile.  

The Rambam (Melachim 9:4) says בֶּן נֹחַ שֶׁהָרַג נֶפֶשׁ אֲפִלּוּ עֵבָּר בִּמְעֵי אִמּוֹ נֶהֱרָג עָלָיו. וְכֵן אִם הָרַג טְרֵפָה אוֹ שֶׁכְּפָתוֹ וּנְתָנוֹ לִפְנֵי אֲרִי אוֹ שֶׁהִנִּיחוֹ בָּרָעָב עַד שֶׁמֵּת. הוֹאִיל וְהֵמִית מִכָּל מָקוֹם נֶהֱרָג. וְכֵן אִם הָרַג רוֹדֵף שֶׁיָּכוֹל לְהַצִּילוֹ בְּאֶחָד מֵאֵיבָרָיו נֶהֱרָג עָלָיו. מַה שֶּׁאֵין כֵּן בְּיִשְׂרָאֵל.  The Raavad disagrees: א"א קשיא ליה אבנר. עכ"ל.  The Kesef Mishne explains his question:  והענין הוא דאמרינן בסנהדרין פרק נגמר הדין (סנהדרין דף מ״ט) ויטהו יואב אל תוך השער אמר ר״י שדנו דין סנהדרין אמר ליה מ״ט קטלתיה לעשאל עשאל רודף הוה היה לך להצילו באחד מאיבריו לא יכילי ליה ופשטו של מאמר זה מורה כדברי הראב״ד.  (See what he answers.)  Rav Kook (ibid) puts everything together and says when a Jew kills his assailant even when he could have stopped him by merely wounding him, he is exempt because his heter of השכם והורגו allows him to take the life of the assailant.  However, a gentile does not have the parsha of בא במחתרת, does not have the heter of השכם והורגו and hence, if he kills his assailant when he could have protected himself by merely wounding him, then he gets killed. 

I don't really understand the whole application of the laws of rodaf to the story of Yaakov and Esau in the parsha.  If there is a war, does a soldier need to start making calculations as to how to minimize damage to his attackers, the enemy?  Presumably, not, at war, one kills the enemy in all circumstances.  So, if Esau is coming to do battle why is Yaakov worrying about abiding by the laws of rodaf?  Perhaps, this was not considered a war as no fight had actually occurred yet, it was just a spot of great tension, וצ"ע.