Mishpatim | "The Sun of a Thief"

           Every system of law must grapple with the interaction and conflict between differing values. Among these tensions is the relationship between property rights and the sanctity of life. What measures can one take to protect property? Is a person permitted to kill in order to protect his belongings or must he stand helpless as others walk away with the fruits of his labor? In parashat Mishpatim, the Torah addresses this important question: 

"If a thief be found breaking in, and he is beaten to death, he has no blood. If the sun has risen on him he has blood..."(22:1-2). 

          These verses are composed of two instances with opposite conclusions. In the first verse the Torah determines "he has no blood" while the second verse states, "he has blood." How do we interpret these verses?  What is implied by the word blood, and furthermore, which person (the thief or the property owner) is the verse referring to when it says "he has no blood?" 

          The majority of the commentators, the Rashbam (Rabbi Shmuel ben Meir, France, 1080-1160), Ibn Ezra (Rabbi Avraham ben Ezra, Spain, 1092-1167) and Ramban (Rabbi Moshe ben Nachman, Spain, 1194-1274), interpret these statements as referring to the HOUSEOWNER who kills the thief breaking into his house. In the first case, the owner of the house has no blood on his hands for having killed the thief; he is not guilty of spilling blood. In the second case the houseowner has blood on his hands, therefore he is guilty of having spilled the blood of the thief. 

          Rashi (Rabbi Shlomo ben Yitzchak, France, 1040-1105) differs from the other classical commentators in his interpretation of the verse. The clauses, "he has no blood" and "he has blood," do not relate to the houseowner but rather to the THIEF. 

"He has no blood" - "This is not murder, for he [THE THIEF] is like one who is dead" 

and on the second clause: 

"He has blood" - "He [THE THIEF] is considered to be one who is alive and it is murder if the owner of the house kills him." 

          The reason for the Torah's considering the thief in the first clause of the verse to be dead will be explained later. What is important at this stage is to note that Rashi interprets the pronoun "he" as relating to the thief. The word blood does not relate to culpability for having murdered, but rather relates to life: "He has no blood" - He [THE THIEF] is not considered alive!  In many contexts, The Torah indeed uses the word blood to denote life: "But make sure that you do not partake of the blood; for the blood is the life..." (Deuteronomy 12:23). The commentators who understand the pronoun "he" as indicating the houseowner interpret the word blood in reference to culpability for murder; the houseowner who kills the thief either has or doesn't have blood on his hands. Rashi who interprets the verse in relation to the thief explains the word blood refers to life; the thief is either considered to be dead or alive, depending on the circumstances. 

          Why does Rashi choose to interpret the verse in relation to the thief and not, as the majority of the commentators do, in relation to the houseowner? (Return to the verses cited above and try to answer yourself). 

          I believe that the reason Rashi understands the pronoun "he" as referring to the thief is due to the context of the verse. The subject of our verse is the thief: "If a thief be found breaking in, and he is beaten to death, he has no blood." The houseowner is not mentioned in the verse. Rashi therefore understands the pronoun 'he" in reference to the subject of the verse, the thief breaking into the house. 

          What are the circumstances which determine whether or not the houseowner is permitted to kill the thief? Scripture states that if the thief is killed while breaking in then there is no bloodguilt. If the sun has risen on the thief and he is then smitten there is bloodguilt. What is the connection between the two situations? What does the Torah mean by "breaking in" and by the sun rising on the thief? Why should these be the criteria in determining the culpability of the house owner? 

          Rashi, citing our sages (see Babylonian Talmud, tractate Sanhedrin 72a), explains the criteria for determining whether the house owner is guilty of murdering the thief: 

"Here the Torah teaches you that if one comes to kill you, arise and kill him first. This thief came to kill you for he knew that no one restrains himself and watches others stealing his money and remains silent. Therefore with this intention did he come, that if the owner of the money would stand up against him, he would kill him." 

In what case is it forbidden to kill the thief? 

"If the sun has risen on him" - This is only metaphorically speaking, if it is clear to you that the thief is at peace with you just like the sun which is 'at peace' in the world, if it is plain to you that he does not come to kill even if the owner of the money will rise up against him; as in the case of a father that breaks in to steal the money of his son, it is known that the father has mercy upon his son and he does not come to take his life." 

          Rashi explains that the Torah understands it to be human nature to fend off a thief stealing one's property. The Torah does not expect a man to stand idly and watch a thief steal his property. It is assumed that, through his natural instinct, the owner will confront the thief. Since the thief knows that the owner will confront him he comes willing to kill the owner. Therefore the thief is considered as one who comes to kill and as such it is permissible to kill him. The critical point is that the permission to kill the thief is not a consequence of his desire to steal but rather the Torah's evaluation that the thief has a willingness to kill. However, if circumstances are such that it is clear that the thief has no intention of harming the owner, it is absolutely forbidden to kill him. Theft of property does not justify killing. There are limits which the Torah imposes on the owner with regard to the means he can use in protecting his private property and belongings. Rashi interprets the clause: "If the sun has risen on him" in a metaphoric sense. The decisive factor in prohibiting the killing of the thief is not the time of the theft, (the time of the theft has no bearing on the law), but rather the intention of the thief. If it is certain that the thief will not harm the owner, as in the case of a father stealing from his son, then it is prohibited to harm the thief. The time of the theft has no bearing on the law. There is no difference between day and night. What matters is the evaluation of the intentions of the thief. 

          The Targum Onkelus (Aramaic translation, 2nd century) interprets differently. He translates "If the sun has risen on him" - "If WITNESSES saw him [the thief] then he has blood." Although the Targum Onkelus agrees that the verse is to be interpreted metaphorically, he offers a different explanation of the metaphor. The sun does not represent peaceful intentions as suggested by Rashi, but rather symbolizes a witnessed act that was revealed to the eyes of witnesses. If the thief was seen by witnesses then it is forbidden to kill him in defending property. The reason for this is two-fold. If witnesses saw the thief, then the owner has recourse to take the thief to court. In this case there is no reason for the property owner to take the law into his own hands. Additionally, if the thief knows he was seen by witnesses, he is unlikely to exacerbate his crime and physically harm the owner. Therefore, in a case such as this, there would be no justification for killing the thief.

           Rabbi Bechor Shor (Rabbi Yoseph Ben Yitzchak Bechor Shor, France, 12 century) offers a unique interpretation of these verses. The clause "If the sun has risen on him" does not refer to the time of the crime but rather to the place. If the owner confronts the thief, while breaking into the house, then he is not guilty if he kills the thief. However, if the owner confronts the thief while he is no longer breaking into the house, but he has already stepped outside WHERE the sun rises, (referring to a place where the sun's light permeates), then the owner is guilty if he kills the thief. So long as the thief is in the process of breaking into the house and committing a crime then the owner is blameless if he killed the thief.  Afterwards he is completely culpable. Since it is only during the act of breaking into the house that the thief presents a danger to the safety of the owner, this is the only instance when killing the thief is justified. Once the thief is off with his loot he is no longer dangerous and there is no justification for taking his life. 

          The Rashbam, Ibn Ezra and the Ramban interpret the peshat, the simple meaning of our verses, literally. Based on the second verse which mentions the rising of the sun, they interpret the first verse "If a thief be found breaking in" as a designation of time. When do thieves break into places? They can only do so under the cover of the night since in the daytime they would be detected. A thief who comes undetected in the night, is liable to kill anyone who confronts him. Based on this interpretation, the person who kills the thief is not guilty since his life was endangered. However the thief who comes by day will not risk killing in broad daylight and therefore it is forbidden to kill him. 

          If it is clear to many of the commentators that the verse should be interpreted literally, (the sun relating to the time of the crime), why do our sages, as cited by Rashi, understand it differently? Why do they choose to interpret the verse metaphorically.  Through this metaphorical interpretation, our sages determined that the sole criterion in determining the culpability of a person who kills a thief is the intention of the thief? Our sages were surely aware of the simple meaning of the verse! 

          The criterion determined by the simple meaning of the verse is the time of the event; at night, the killer of the thief is not guilty, in the day, he is. Why is time such an important factor? The commentators suggest that the time of the theft reveals the intention of the thief. I would like to offer an alternative explanation. The owner who confronts a thief in the dark sees nothing and thus has no way of knowing whether a murderer or a thief stands before him? This frightening predicament leaves the owner with little option, and he must prepare for the worst. Therefore, the Torah absolves the owner from any punishment if he kills the thief, because it is considered an act of self-defense. In the daytime, however, the owner who confronts the thief is able to determine the intent of the thief. The owner knows the thief is interested in stealing and not in killing. In such a case, the owner is forbidden to kill the thief. 

          Whatever explanation is adopted, it is clear that the underlying criterion is the intent of the person breaking in. So long as it's obvious that he has no intention of killing he "has blood" and his killer is guilty. The time of day is just a tool for determining the intent of the person who breaks in; it is not the underlying principle. Our sages reveal to us the real criterion. It might be true that the person who breaks in to a home at night while the house-owners are present is more likely to have the intention to, or the willingness to murder. However, time is not the final consideration. If a murderer comes in the day one is obviously permitted to kill him. Conversely, if a thief who clearly has no intention to physically harm, comes at night, he who kills him is guilty. Our sages, in their interpretation, do not negate the simple meaning of the verses, they simply reveal their true intent.