D'var Torah: Mishpatim

By Abe Friedman
Boston University

Editor’s note: While this D’var Torah doesn’t directly address war with Iraq as its primary focus, we thank Abe Friedman for sharing it with us because it brings up interesting issues to ponder in relation to forming our opinions about Iraq policy. Also, mazal tov to Abe on his acceptance to Rabbinical School at JTS!

With the eyes of the world focused on the mounting tension between Iraq and the Bush administration, people everywhere wrestle with the same question: is there ever any justification for a preemptive strike? What sort of evidence is needed before taking such severe action? One could answer this question in any number of ways, but one answer is in this week’s parsha. In the midst of discussing the reparations for theft, the Torah takes a brief detour: 

If in a tunnel the thief is found, and he is hit and dies, there is no blood for him. If the sun rises upon him, there is blood for him. (Shemot 22.1-2a)

The commentators explain that the somewhat ambiguous phrase, “There is no blood for him” (ein lo damim), means the thief’s killer bears no guilt of manslaughter (as discussed by Ibn Ezra, Rashbam). The Mishna provides the basis for this case: “The one who comes in a tunnel is judged by his end [i.e. final intention]” (Sanhedrin 8.6). In the Gemara, Raba outlines the thief’s thought-process: “If I go there, he [the owner] will oppose me and prevent me; but if he does, I will kill him” (Sanhedrin 72a).

The Talmud then summarizes the general rule for this situation: “Therefore the Torah decreed, ‘If he comes to kill you, prevent him by killing him [first]’” (Sanhedrin 72a). This assertion creates a problem, however. Although the Talmud explicitly attributes this statement to the Torah (“amrah torah”), I have not found this statement anywhere and the Mesoret HaShas does not give a citation. The simplest explanation, it seems to me, is this: “amrah torah” is not a standard way to introduce a proof-text. Instead, I believe the Talmud is offering a synopsis of the verses quoted above – although the specifics deal with a thief and a tunnel, the essence of the lesson is to establish justification for murder in self-defense.

The next Mishna in Sanhedrin enumerates the classes of people who must be stopped from transgressing even if it means taking their life. At the top of the list: “The one who chases after his fellow to kill him” (Sanhedrin 8.7). This ruling creates the halakhic category of rodef (“chaser”) as well as the universal permission to stop the rodef even if it takes deadly force. Rambam goes so far as to assert that “All Jews are commanded [metzuvin, from the word mitzvah] to save the one being chased from the rodef, even [at the cost of] the life of the rodef (Laws of the Murderer and Lifesaving 1.6). Rambam tempers this ruling, however. In the next halakhah, he insists that if it is in any way possible to stop the rodef without killing him, we must take that approach (op. cit. 1.7). Nevertheless, we have an answer to our first question; there is, according to halakhah, justification to strike first against a rodef.

But how can we know in a specific case if a person is a rodef?

The verses from this week’s parsha again provide the answer. Although in general one who kills a tunneling thief bears no guilt, the Torah does specify that “If the sun rises upon him, there is blood for him” (Shemot 22.2a). The Midrash Mekhilta d’Rabbi Ishmael interprets the sunrise figuratively. If it is “clear as day” that the thief has no intention of murdering the homeowner, we may not apply Raba’s reasoning to this thief (see above) and anyone who kills the thief bears the guilt of manslaughter. Rambam follows this opinion and explicitly forbids killing a thief when it is clear he means no harm (Laws of Theft 9.10). Without “clear as day” proof that the thief means no harm, however, he is still classified as a rodef.

To recap, the Talmud relies on this week’s parsha to assert the right of any person to kill not only in self-defense but even in defense of another. Rambam both strengthens and limits this ruling, there is no other avenue of rescue. Even just a reasonable suspicion that a person intends murder supplies the necessary evidence for this action, but if it becomes “clear as day” that a person means no harm they may be stopped by extreme measures but not by manslaughter.

[Posted 3/4/03]