ALL FOR ONE AND ONE FOR ALL
Among the multitude of laws incorporating civil and capital offenses delineated in Parshat Mishpatim, the case of the intruder strikes of moral ambivalence: "If the thief is discovered while tunneling in, and he is struck and dies, there is no blood-guilt on his account" (Exodus 22:1).
Among the multitude of laws incorporating civil and capital offenses delineated in Parshat Mishpatim, the case of the intruder strikes of moral ambivalence: "If the thief is discovered while tunneling in, and he is struck and dies, there is no blood-guilt on his account" (Exodus 22:1). In other words, the Torah permits a home-owner to protect his property at the cost of the thief's life. It seems that the mortal consequence of the thief's actions lack the appropriate crime. In a certain light, the Torah assigns a death penalty to a thief simply to maintain and protect the owner's property. The trade-off appears unbalanced. However, intuitively, the response of the home-owner seems natural, human. After all, who could stand by idly, watching a stranger violate his home! However, this understandable, even expected, response falls short of legitimizing the moral dilemma. How, irrespective of the justification, can a person be allowed to kill another merely to protect property?
In truth, the Torah resolves this problem in the next verse: "If the sun shone upon him, there is blood-guilt on his account" (ibid. 22:2). Within the law allowing the killing of a thief, this cryptic clause qualifies the case and limits its scope. When "the sun shines upon the thief," the owner is held accountable for murdering the thief, since it was "clear as day" that the thief presented no danger. But if by interfering, it is clear that the home-owner's life would be placed in danger, then killing the intruder is warranted. This qualification dramatically shifts the focus from a petty civil crime to one worthy of capital punishment. Only when the thief seems dangerous can the owner kill him, a clear extension of self-defense.
However, the Torah calls this intruder simply a thief. He intends to take only money. If the owner interferes, then the concern arises about the thief's mortal threat. Why, then, does the Torah allow the home-owner to interfere? If the home-owner would be obligated to stand by and allow the theft, then no lives would be put in danger - not the thief's nor the home-owner's. Why does the Torah allow a person to challenge the thief at all?
The answer centers around two broader issues which reflect a Torah perspective about the community and the individual: The stability and security of society ranks among the highest priorities in Jewish thought. Many rules were established throughout the Talmud to "keep the peace". Similarly, the Torah ensures the civility of a society by providing an opportunity for an owner to protect his home at great cost. A thief, not only violating the privacy of a single home, but also compromising the security and confidence of an entire community, must recognize the self-imposed danger he initiates. Accordingly, the Torah society is protected from an abuse of its system.
This first answer focuses on the societal need for a preemptive attack on the intruder. However, another element reflected in this law reveals the Torah's understanding and acceptance of the human condition. In a different context, the Torah permits a soldier to take a wife (eshet y'fat to'ar) from captives after a battle (Deuteronomy 21:10). However, the Torah insists on a long process before allowing the soldier to act on his immediate passion. Rashi, the fundamental commentator on the Torah, develops from this shocking law a broad concept which reveals the Torah's sensitivity to the human state of mind and its weaknesses. The Torah takes into account the most common, powerful, and perhaps base human reactions to a particular event. A soldier in battle shoulders an incredible responsibility and burden. His exposure to sub-human conditions and scenes desensitizes his personality. Accordingly, had the Torah demanded his maintaining his perfect moral code, the soldier would have despaired and disregarded any Torah command. Therefore, the Torah channels his energies, offering an outlet in order to allow, albeit controlled, for the soldier to act on his feelings. (For further discussion of this case, please see Yoel Spotts' article, "Prisoner of War", on page 249 of the Torah from Dixie book.)
Similarly, a home-owner simply will not watch a thief walk safely away from his house with stolen loot. The home-owner will necessarily interfere, even when it threatens his life. Recognizing this very human reaction, the Torah allows a person to protect his home. However, once again, this permit only covers situations where it is "clear as day" that the thief poses a mortal threat. Only then can the home-owner preempt the thief and attack. The Torah channels the human passions that rise in a given situation to allow their limited manifestation, avoiding stifling the home-owner's right to protection and maintenance of peace.
Micah Gimpel, a graduate of Yeshiva Atlanta and Yeshiva University, is studying at Yeshivat Har Etzion in Israel.
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