Mishpatim: The Right Of Self-Defense In Judaism

Did the sun shine upon the one who invaded my home?

The Torah distinguishes among burglars based on circumstance and intent.

Table for Five: Mishpatim

Edited by Salvador Litvak, the Accidental Talmudist 

If, while breaking in, the thief is discovered, and he is beaten to death, there is no bloodguilt in this case. If the sun shone upon him, there is bloodguilt in that case; he shall surely make restitution. If he lacks means, he shall be sold for his theft. -Ex. 22:1-2

David Porush, Student, Teacher, Writer

Why such different outcomes for the same crime?

The day thief is just a thief. The night thief acts with bad intent. Willing to sneak in the dark, we can assume he’s like Dostoevsky’s underground man, a wretch capable of anything, and so we may act to preempt him, even kill him. Shoot first, ask questions later.

The contrast illustrates Torah’s revolution in justice, an extension of its phonetic alphabet-granted ability to document, for the first time in history, the inner life of human souls. Its omniscient Author can peer into psyches and motives, the first-person intimate, and specify penalties to fit not just the apparent circumstances of an act but the intentions of the actors.

The night tunneller represents a whole class of malevolents, troglodytes whose sincerest intentions don’t match their behaviors, dissemblers, imposters, con-men, and liars. The Talmud tells us, God “hates him who says one thing with his mouth and another in his heart.” Maybe even plain everyday sarcasm and irony lies on the road to villainy, subverting trust, burgling innocence, eroding simplicity, tunneling under the foundation of truth. Isaiah says, “Woe to those who say bad is good and good, bad.”

On the other hand, who doesn’t have an outer and inner life in less than perfect accord? How do we measure the distance between what’s in our heart and what comes out our mouths? This is the calculus of the soul, our daily personal struggle with the metaphysics of good and evil.

Dr. Erica Rothblum, Pressman Academy

These psukim teach us that self-defense is permitted. In looking at the words “if the sun shone upon him” the Talmud raises the question: “Is the sun only going to shine on them? Rather, If the matter is as clear to you as the sun that they don’t wish you peace, kill them. But if not, don’t kill them.”

Just because something is allowed does not mean it should be done. While Jewish law allows violence to keep an evil from occurring, it also mandates that the minimal amount of violence be used to accomplish one’s goal. Each human life is precious, made in the image of God. And therefore, when we are in a position in which killing “the thief” is the only way to survive, we are not to celebrate the end of an enemy’s life. In Pirkei Avot Shmuel haKatan repeats: “Do not rejoice at your enemy’s downfall.”

All of this to say – Judaism is a tradition that teaches us to hold two values at once: we should protect ourselves and our families at any cost, and we should also care for those who aim to harm us and our families. We should defend ourselves, and we should do so while inflicting minimal damage to those who wish ill upon us. This notion feels like a necessary intervention in an increasingly polarized world.

We live in a moment of black and white thinking, a time in which complexity and nuance often fall to the wayside. Judaism asks us instead to hold contrasting truths at the same time, and to remember that even a matter as critical as self-defense is not always simple.

Rabbi Yossi Eilfort, President, Magen Am USA

Protecting Life is a core Jewish value. In this simple case, the Torah is giving legal and ethical guidance we can still learn from today. Rabbi Shimon Yitzchaki (“Rashi”), the foremost commentator on the Torah, states “from here we learn that if someone comes to kill you, get up and kill him first.” The Jewish approach to self-defense is neither reluctant nor frowned upon. When there is even implied deadly intent, the Torah justifies taking the assailant’s life.

However, if it is clear as day that the perpetrator will not cause harm – “as the shining sun brings peace,” this is not justified.

Looking at the human components: If it is unknown if the home-invader may be coming to cause harm, there is a range of emotional and cognitive reactions we could expect to see, including some that could result in killing the perpetrator. On the other hand, if it is known that the person would not cause harm, the reactions are limited to simple emotions such as pride, hatred, or anger.

The Torah here shows compassion so a self-defender need not cope with the trauma of a wrongful killing, should the home-invader have unknown intent. This care is not extended to one who acts out of an emotional outburst.

In modern times, we often find “misplaced compassion,” which works against the everyday Good Guy. Yet here we have this ancient wisdom – which the world could use more of with each passing day.

Rabbi Chaim Tureff, Rav Beit Sefer of Pressman Academy, director of STARS Addiction Recovery

These verses are fraught with confusion, especially in our times where there is so much anger and uncertainty on both sides of the aisle when it comes to issues of law and order.

The commentaries and Talmud elucidate the understanding that depending on the situation one may kill an intruder. If there is justified fear, a possibility of danger, and the unknown, it appears to be permissible. The Ramban understands that if one were to literally come at night, we may kill them because they are reasonably coming to kill you whereas one who comes during the daytime is not willing to kill you, since once they have been discovered they will run away.

Similarly, the Alter Rebbe discusses the idea that one is willing to sin before God but is much more careful with their actions around other people. This idea that we show one side of ourselves around some people and another around other people is all too often the case with domestic abuse. Whether it is verbal, emotional or physical abuse, the spouse (usually the husband) is often seen as a glowing example of the ultimate great guy. Whereas in reality, their spouse lives in constant torment and pain.

As a child survivor and married to a spouse who experienced domestic abuse, I have seen the pain of my mom z’l, and wife’s torment. If you are experiencing domestic abuse, please contact thehotline.org.

David Brandes, Writer

Because the laws of Mishpatim, such as this week’s verse, constitute the major portions of civil and criminal law in the Torah, now is a good time to try to unpack the relationship between the written law (Torah) and the oral law (Talmud). It is sometimes assumed that the oral tradition is no more than the authorized interpretation of the written law. But, not so quick. As the great scholar Yeshayahu Leibowits points out, and I am paraphrasing:

It is not the literal meaning of the verse which guides the Jew in observing the Torah and the mitzvot, but the world of the oral law… What is unique about halachic (or rabbinic) Judaism is that it recognizes the autonomy of the oral law and in truth it is the oral law which determines and decides rules based on its own criteria. Furthermore, this process is supported and insisted upon by the written Torah. This is a basic principle of faith in the historic Judaism of Torah and mitzvot.

I find it interesting to note the strong comparisons between the Torah and our own US Constitution. George Fletcher, Professor of Law at Columbia University describes the Constitution as a secular holy text! Both are interpreted through a body of law – the oral law vs. case law and both have final courts of appeal – the Sanhedrin vs the Supreme Court. On the other hand, there is no historical evidence of Democrats or Republicans attempting to pack the Sanhedrin.

With thanks to Dr. Erica Rothblum, David Porush, David Brandes, Rabbi Chaim Tureff and Rabbi Yossi Eilfort

Image by S_Salow via pixabay

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