Techumin – 5768

Rabbi Dr. Michael Abraham

Outline

A.  The passage of the 'tunneling burglar'

B.  Between the tunneling burglar and the pursuer

1. Distinctions between the tunneling burglar and the pursuer
2. Why is the homeowner not required to forgo his property?

D.  The homeowner may protect his property at the cost of the thief's life

E.  Proofs from the words of Maimonides

1. The tunneling burglar is a law within the laws of theft
2. Permission or commandment
3. The manner of killing
4. The presumption that the thief will not yield over his property – really?
5. The degree of certainty required regarding mortal danger
6. An alternative path to rescue

V.   The law of the informer is derived from the tunneling burglar and in turn illuminates it

1. The permission to kill the informer stems from danger to property
2. Why is the informer not exempt from monetary payment?

Z.   Conclusion

Appendix: One does not kill over monetary matters

v v v

On Friday night of Parashat Shemot, 5767, four Bedouins came to an isolated ranch in the northern Negev in order to steal the herd of the ranch owner, Shai Dromi. This incident was part of an extended pattern of thefts from such ranches (entire herds are stolen night after night), accompanied by the helplessness of the police and the authorities, which left the ranch owners to cope with the phenomenon on their own. Such thefts leave the ranch owners destitute; some have been reduced to poverty, and because of the constraints of the law they have nothing they can do.

According to Shai Dromi, after he warned the thieves and they did not respond, he fired and hit one of them, who later died from loss of blood. The police recommended putting him on trial for murder (note carefully: not manslaughter, but murder). Under the law currently in force in Israel, those four thieves could have come to the ranch with a truck, loaded up all its contents in full view, and even forced Dromi to assist them. According to the police, Dromi should have let them steal, and afterward asked the police to deploy their forces to recover his property – something they generally fail to do.

In the United States the legal situation is different. There, a person may shoot burglars who come into his house in order to kill them. In present-day Israel, a public debate developed over whether Dromi had any way to avoid killing, and whether he in fact felt that his life was threatened.

Jewish law stands in this case between the two approaches – it conditions the permission to kill the thief on a threat to the homeowner's life. True, it permits this even without a thorough inquiry, and mere concern that the thief is dangerous is enough to permit killing him, but it seems entirely clear that the basis of the permission is concern for the homeowner's life, not the right of defense of property.

Seemingly, according to Jewish law, a violent thief (violent, not murderous) may operate before the homeowner's very eyes, ignore requests and warnings, and leave him stripped of his possessions. Do we not then find here that the sinner profits and the righteous man loses, solely because the righteous man observes the laws of Jewish law?! In this article I wish to show that, at least according to some halakhic decisors, a person may defend his property even at the cost of the thief's life (at least when there is no other choice), even where his own life is not in danger.[1]

A. The passage of the 'tunneling burglar'

The verses dealing with the laws of the tunneling burglar (Exodus 22:1–2) appear within a unit that details the punishments of the thief (double payment, fourfold and fivefold payment):

If a man steals an ox or a sheep and slaughters it or sells it, he shall pay five cattle for the ox and four sheep for the sheep. If the thief is found breaking in and is struck and dies, there is no bloodguilt for him. If the sun has risen upon him, there is bloodguilt for him; he must surely pay; if he has nothing, he shall be sold for his theft. If the stolen item is found alive in his possession, from ox to donkey to sheep, alive, he shall pay double.

From the plain sense of the verse it emerges that killing the tunneling burglar is a result of his intention to steal (as in the American approach), and only if the thief has already gone out and his loot is in his hand (= 'if the sun has risen upon him') is it forbidden to kill him.[2]

Since these verses deal with the punishments of theft, it appears that putting the thief to death is also a punishment imposed on him because of the theft. This is therefore an intensification of the American approach: not only may the homeowner kill the thief in order to save his property, but he even functions as a court that punishes the thief for his deed. The picture that emerges here is that this is not merely a killing whose purpose is to prevent the theft, but also the carrying out of a death penalty for theft.[3]

Seemingly, this approach also emerges from the Mishnah, which brings the law of the tunneling burglar immediately after the law of the stubborn and rebellious son, as two cases in which a person is judged on account of what his end will be: The tunneling burglar is judged on account of his end (Sanhedrin 8:6). That is, the killing of the thief is a punishment for the offense he is destined to commit – that is, the theft.[4] The latter clause of the Mishnah – 'If he came in by tunneling and broke the barrel: if he has bloodguilt protection, he is liable; if he has no bloodguilt protection, he is exempt' – also supports the conception that the killing of the thief is his punishment, for the rule that the greater penalty displaces the lesser applies only when a person is liable to death.[5]

In contrast to the approach that emerges from the plain meaning of the verses and from the Mishnah, the Talmud (72a) maintains that killing the thief is not a punishment for his actions, but stems from the danger to the homeowner's life:

Rava said: What is the reason for the tunneling burglar? It is presumed that a person does not stand by and let his property be taken. And this one says: If I go in, the owner will stand against me and not let me, and if he stands against me, I will kill him. And the Torah said: If someone comes to kill you, rise early to kill him first.

For that reason, when no indirect danger to the homeowner's life is present, he is forbidden to kill the thief. Thus indeed emerges from the continuation of the Talmud's discussion, which determines that a person may not kill his father when he comes tunneling into his house, for it is clear that the father will not kill his son, and therefore no danger at all threatens the homeowner's life. The Talmud also cites Rav's statement that even if the tunneling burglar is not the homeowner's father, but the homeowner knows with certainty that the thief will not kill him, he is forbidden to kill him. And thus the law was ruled (Maimonides, Laws of Theft 9:9–10).

From this it seemingly follows that Jewish law does not adopt the American approach, according to which defense of property justifies harming the thief's life; rather, only danger to life justifies it. According to this, the law of the tunneling burglar is exactly like the law of the pursuer, from whom one may save oneself by killing him.

B. Between the tunneling burglar and the pursuer

1. Distinctions between the tunneling burglar and the pursuer

Despite what seems to emerge from the Talmud's words, there are several laws that distinguish between the law of the tunneling burglar and the law of the pursuer:[6]

1. First, it is worth noting that at the outset the Talmud does not explicitly define the tunneling burglar as a pursuer, but uses unusual language – If someone comes to kill you, rise early to kill him first. True, later the Talmud writes it teaches us that he is a pursuer, but it appears that the Talmud remains committed to its principled position that the tunneling burglar is not considered a pursuer, and merely compares the law of the one to the law of the other.
2. The beraita (Sanhedrin 72b) needed a special derivation from the verse 'and he is struck' – by any person to teach us that the permission to kill the thief is not given only to the homeowner but to any person. Without the verse, the Talmud says, 'I might have thought that only the homeowner, who knows that a person does not stand aside regarding his property, but not another person; therefore it teaches us that he is a pursuer, and therefore even another person as well.' Such an initial assumption never arose at all in the passage of the pursuer,[7] and in truth, if the basis for the permission to kill the thief is the saving of the homeowner's life, there is no room whatever for such an assumption.
3. In that same passage the beraita teaches that one may kill the thief even on the Sabbath: 'If he has bloodguilt protection – whether on a weekday or on the Sabbath; if he has no bloodguilt protection – whether on a weekday or on the Sabbath.' If the reason for the permission to kill the tunneling burglar is danger to life, what possible initial assumption could there be to forbid it on the Sabbath, and why was a special derivation needed for this?

Moreover: the Talmud explains that the novelty of 'whether on a weekday or on the Sabbath' was needed because 'I might have thought it is like those executed by the court, whom we do not kill on the Sabbath; therefore it teaches us that here we do kill.' The initial assumption of comparing the tunneling burglar to those executed by the court fits the approach that emerges from the plain meaning of the verses, namely that the killing of the thief is a punishment, not merely protection of the homeowner's life. Admittedly, this is only an initial assumption, and perhaps in the conclusion the Talmud understands that killing the thief is indeed rescue alone, and not punishment.

4. The same beraita also derives: 'and he dies – by any death through which you can kill him.' The Talmud explains that although this law exists regarding every murderer, derived from the verse 'the murderer who struck shall surely be put to death; he is a murderer' (Numbers 35:21), namely that if you cannot put him to death by the death prescribed for him (that is, by the sword), you may kill him by any death, without the special derivation we would not have known that the same is true of the tunneling burglar. But this assertion is puzzling: if the killing is for the sake of saving the homeowner's life, what was the initial assumption that one may kill the thief only by the sword?

It is worth noting that a murderer – ideally, one should kill him specifically by the sword, and only if that is impossible may one kill him otherwise. Some medieval authorities likewise wrote regarding a pursuer that ideally one should kill him by the sword, in order to carry out upon him the punishment of a murderer, and only if impossible should he be killed by another death.[8] But whereas those authorities straightforwardly analogize from murderer to pursuer, and conclude that he too may be killed by any death, one cannot analogize in that way from murderer to the tunneling burglar, and the Talmud requires a special derivation for that. Once again, then, we see that the tunneling burglar is not an ordinary pursuer, and there are differences between their respective laws.

2. Why is the homeowner not required to forgo his property?

Beyond the legal distinctions between the tunneling burglar and the pursuer, there is also an important conceptual difference between them. When a person sees a thief breaking into his home, he is not in mortal danger, and the option is always open to him not to resist and to let the thief leave with his loot. Only if he tries to defend himself does he create the situation in which the thief wants to kill him. Why, then, did the Torah permit the homeowner to protect his property at the cost of the thief's life? Is the thief's life not more important than the homeowner's property?! More than that: one may not kill a pursuer when it is possible to defend oneself by injuring one of his limbs (Sanhedrin 74a). Why, then, may the homeowner harm the thief when he can prevent the danger by giving up his property?

And we may ask further: as we have seen, the homeowner may kill the thief even on the Sabbath. Yet a person is commanded to spend all his property in order not to transgress a prohibition. How, then, was he permitted in this case to stand on his property at the cost of desecrating the Sabbath?

This question becomes even sharper in light of the passage concerning 'gentiles who besiege Jewish towns' (Eruvin 45a; Maimonides, Laws of Sabbath 2:23), which determines that if gentiles besiege Jewish towns in order to steal money from them, one does not desecrate the Sabbath for them and does not wage war with them.[9] The Shulchan Arukh rules this as law (Orach Chayyim 329:6), and nearby brings in the name of Terumat HaDeshen: 'In our time, even if they came over monetary matters, one desecrates the Sabbath, for if the Jew will not let them plunder and loot his property, they will kill him, and it becomes a matter of life and death.'[10] Seemingly, this is exactly the law of the tunneling burglar; and therefore the words of the Magen Avraham are puzzling, for he comments there (subsec. 5):

And this requires consideration: should he not let them take the money and not desecrate the Sabbath? Perhaps, since a person does not stand aside regarding his property, we fear that someone may stand against them and be killed; therefore one desecrates the Sabbath. But in the case of a single individual – let him allow them to take his property and not desecrate the Sabbath.

If so, our above question led the Magen Avraham (and following him the Mishnah Berurah, subsec. 15 as well) to rule that an individual person confronted by a thief on the Sabbath – 'should allow him to take his property and not desecrate the Sabbath.' The author of Orchot Chayyim (subsec. 6; see also Shemirat Shabbat KeHilchatah ch. 41 n. 70) wondered at this: how can this law be reconciled with the law of the tunneling burglar? And we may return and ask: why indeed did the Torah permit the blood of the thief even on the Sabbath, when the homeowner can let him steal his property, and thereby prevent both his killing and the desecration of the Sabbath?[11]

One could answer that the Torah took into account human nature (that of the homeowner): even if we were to command him not to defend himself, he would not be able to stand by it – it is presumed that a person does not stand aside regarding his property (Sanhedrin 72a). But this is difficult, for the Mishnah (Shabbat 117b) forbids saving from a fire on the Sabbath more than a certain quantity of food, and the reason is explained there in the Talmud: Since a person panics over his property, if you permit him this, he will come to extinguish the fire. The prohibition of extinguishing there is rabbinic (a labor not needed for its own sake), and nevertheless – against human nature – the person is required to stand by, watch his property perish, and not lift a finger. Jewish law holds that this is an achievable demand. Why, then, when human life is on the scales, does the Torah not require a person to refrain from defending himself? All the more so since, as we have seen, the Torah permits killing the thief even on the Sabbath; thus extinguishing is forbidden, whereas taking a life is permitted![12]

Our question may be resolved in another way: the thief is the one who created the situation in which the homeowner is forced to choose between giving up money and taking a life. Had the thief not come tunneling in, the homeowner could have remained with his property and would not have been forced to harm anyone's life. Since the thief is the one who compelled the homeowner to choose – he must bear the consequences, and he may not use the halakhic protection of 'do not murder' in order to force the homeowner to give up his property. A similar situation is that of a robber who demands from a passerby a sum of money and threatens murder if he refuses. That robber too coerces the passerby to choose between transgressing 'do not murder' and preserving his property, and he may not use the prohibition of murder in order to force upon him the choice more convenient for himself.[13]

Even so, this answer too is difficult, for as we saw above, one may kill the tunneling burglar even on the Sabbath. Even if the Torah withdrew from the thief the halakhic protection of 'do not murder,' why did it permit desecrating the Sabbath? After all, in order not to desecrate the Sabbath a person must forgo even all his property. How, then, was the homeowner permitted to desecrate the Sabbath in order to save his property, instead of giving up his property and thereby nullifying the danger?

The laws that distinguish between the tunneling burglar and the pursuer, together with the basic difference between them – that the pursuer intends to kill, whereas the tunneling burglar intends only to steal – teach us that the permission to kill the thief is not based on considerations of saving life and does not stem from threats to the homeowner's life. As we shall see below, there is another reason for this permission: a person's right to defend his property.

D. The homeowner may protect his property at the cost of the thief's life

As we have seen, the Talmud explains that the basis for the permission to kill the tunneling burglar is the presumption that a person does not stand aside regarding his property, and the statement: 'And if he stands against me, I will kill him.' Maimonides (Laws of Theft 9:9) explains that it is the thief who may kill the homeowner if the latter tries to stand against him: Why did the Torah permit the blood of the thief, even though he came over monetary matters? Because the presumption is that if the homeowner stands before him and prevents him, he will kill him.

The Ran, however, explained this differently (and similarly the Yad Ramah):

Certainly not all thieves come with murderous intent; and if the homeowner stands before him and takes back his property from the thief, he would not kill him – for if the thief cannot steal, let him go on his way! Rather, it is the homeowner who stands against him intending to kill him if he does not immediately leave the articles. Although strictly speaking he ought not to kill him for that, it is presumed that a person does not stand aside regarding his property. The thief, knowing this, when he stands against him is standing in a matter of life and death. He is the one who began the quarrel, and regarding the tunneling burglar Scripture made him into a pursuer and said that there is no bloodguilt for him.

At the beginning of his words, the Ran states that a thief does not come over matters of life and death, but immediately afterward – almost in the same breath – he writes that the thief indeed 'stands in a matter of life and death.' It appears that the Ran means that the thief indeed does not intend to kill the homeowner, but the homeowner has a legal right to defend his property even at the cost of the thief's life. True, 'strictly speaking he ought not to kill him for that,' and it is not proper to take such a right into one's own hands, but since this is the homeowner's right – we do not accuse him of homicide. As a consequence, the thief knows that his own life is in danger, and therefore he too is ready to kill the homeowner in order to save himself. Since the thief is ready to kill the homeowner, a real danger to the latter's life is created, and therefore he may kill the thief in order to prevent the danger to his own life.

According to the Ran, then, the danger hanging over the homeowner's life is a kind of legal fiction, which provides a justification for killing the thief in order to defend property. Jewish law equates the law of the tunneling burglar with that of the pursuer even though they are different in nature, in the Ran's words: Scripture made him into a pursuer. His approach is an 'American approach': the homeowner has a right to defend his property, even to the point of killing the thief for that purpose.

This conception clarifies the uniqueness of the law of the tunneling burglar, and explains the differences between it and the pursuer. The permission to kill the thief does not derive from the danger to life threatening the homeowner, but from his right to defend his property. Therefore Jewish law does not condition the killing of the thief on an actual risk to the homeowner's life, and even if he can prevent the danger to his life in some other way – for example, by giving up his property – he may kill the thief in order to save his property.

True, as a matter of practical law it is clear that this permission – even if its basis is the right to defend property – is conditioned on the existence of some risk to the homeowner's life. Two possible reasons may be suggested for this:

1. In order not to create a cheapening of human life, the Torah did not wish to make the thief's life entirely forfeit. Therefore, the Torah established that some risk, however indirect, to the homeowner's life is required in order to permit killing the thief. This risk is negligible, and therefore it does not justify the application of the ordinary laws of the pursuer; but it is enough to define the thief as a 'halakhic pursuer' and justify realization of the homeowner's right over his property. When that risk does not exist at all (as in the case of a father who comes to steal from his son), the homeowner may not kill the thief.

      In other words: the risk to the homeowner's life is a halakhic fiction (a legal presumption), whose purpose is to enable him to defend his property. Contrary to the ordinary rule that one suspected with respect to money is not thereby suspected with respect to life, the Torah established a legal presumption according to which the thief certainly will not shrink from killing the homeowner, and therefore it is permitted to kill him. The Torah established this presumption in order to protect the homeowner's right over his property, but the halakhic instrument that permits killing the thief is not danger to property but danger to life. When there is complete certainty that the thief will not kill the homeowner – that certainty, of course, overrides the presumption; but when there is some risk, even only formal, to the homeowner's life – the Torah determined that one may kill the thief.

      A similar mechanism, of legal fiction, we find in the doctrine of ho'il ('since'): there too there is a formal mechanism whose purpose is to permit involvement in the needs of festival food preparation, and there too this permission is suspended upon the slight possibility that guests may come. When it is theoretically possible that guests may arrive – the Torah permits reliance on a slim possibility and preparation of food for them; but where there is no chance at all that this will occur – the permission disappears, even though the purpose of the permission is preparing food for the person himself, not for guests.

2. Another way to understand the need for some risk is the fact that when there is no risk at all to the homeowner's life – that means that he can protect himself without killing the thief, and therefore there is no need for permission to kill him. Only where there is some risk, even merely theoretical, to the homeowner's life does the Torah permit killing the thief and not require the homeowner to place his own life in danger. The permission to kill does not derive from the danger to the homeowner's life (for he can give up his property), but because of his right to defend his property; nevertheless, the Torah permitted him to kill only where there is a theoretical concern for his life.[14]

Since the risk in this case is only a fiction, the Torah is not exacting in the details of the boundaries of that risk, and only where it is very clear that there is no risk does the permission lapse. Thus the law was formulated in the Tur, Choshen Mishpat 425:

Accordingly, one does not kill him except where one knows with certainty that if the owner of the property stands up to save his property, the thief will rise against him and kill him. Nevertheless, every person falls under this presumption and one may kill him, unless one knows that the burglar loves the owner of the property and will not kill him, even if he stands against him to save his property.

Unlike the law of the pursuer, near-certainty is not required here that the pursuer will kill the pursued. This difference stems from the fact that in the case of the tunneling burglar the permission is not by virtue of the law of the pursuer, but in order to save property. The threat to life is required only as background, so that we may fit the permission into the categories of life-saving necessity and pursuit.

But why did the Torah establish the fiction that the thief is trying to kill, and thereby in effect impose a death penalty for theft? If the chance that the thief will kill the homeowner is low, why did the Torah permit killing him? It seems that the reason for this law is the fact that the thief seeks cynically to exploit the law to his own advantage. The thief seeks shelter under the prohibition of murder, which forbids the homeowner to kill the thief in order to defend his property, and therefore the Torah removed that protection from him. In a similar way, when the thief enters the house on the Sabbath and seeks to exploit the prohibition on taking life on the Sabbath to his own advantage – the Torah withdraws that halakhic protection from him as well, and permits killing him even on the Sabbath.[15]

In this way one may explain the law we saw above in the Magen Avraham, according to which gentiles who come to steal are not considered 'tunneling burglars.' Those gentiles do not intend to exploit the prohibitions of the Torah for their own purposes, and it is reasonable to assume that they are wholly unaware that the prohibition of murder protects their lives. They wage war by brute force, and do not rely on the halakhic prohibition against killing them or desecrating the Sabbath, and therefore with regard to them the prohibition of murder was indeed set aside in order to defend oneself, but desecration of the Sabbath was not permitted.[16] For this reason, in the Magen Avraham's words, an individual person confronted by gentiles who come to steal from him on the Sabbath must give them his property, for all their intention is to rob by force; but the tunneling burglar on the Sabbath may be killed, because his intention is to use the prohibition of murder as a halakhic shield.[17]

E. Proofs from the words of Maimonides[18]

1. The tunneling burglar is a law within the laws of theft

A study of Maimonides suggests that he too does not see the tunneling burglar as merely a pursuer. Maimonides places the laws of the tunneling burglar within the framework of the Laws of Theft, whereas the laws of the pursuer he places in chapter 1 of the Laws of Murderer and Preservation of Life.[19] If the tunneling burglar were a particular case of an ordinary pursuer, he should have addressed it in the Laws of Murderer.[20]

So too in Sefer HaMitzvot (positive commandment 239), the law of the tunneling burglar appears as a clause within the laws of the thief, not within the laws of the pursuer, for Maimonides writes there:

The 239th positive commandment is the Torah's instruction concerning the law of the thief: that we fine him double payment, or fourfold and fivefold payment, or kill him if he comes in by tunnel, or sell him, together with all the laws of the thief…

It is clear from Maimonides that killing the thief is a punishment for the act of theft, not an act whose purpose is saving the homeowner from the (slight) risk that the thief will try to kill him. Had there been a significant danger to the homeowner's life, the tunneling burglar would have counted as a pursuer – but we saw above that he is not regarded as a pursuer. It is therefore plausible that the Torah gave the homeowner permission to defend his property even at the cost of the thief's life.

2. Permission or commandment

With regard to the tunneling burglar, Maimonides rules (Laws of Theft 9:7): 'The tunneling burglar… any person has permission to kill him.' This stands in contrast to Maimonides' words concerning the pursuer (Laws of Murderer 1:6–9): 'All Israel are commanded to save the pursued from the pursuer, even at the pursuer's life… this is a negative commandment not to spare the life of the pursuer.'

The fact that killing the thief is a permission and not a commandment may be learned from the language of the verse, 'there is no bloodguilt for him' (Exodus 22:1) – that is, only exemption from punishment.[22] But if the tunneling burglar is judged as a pursuer, why is there only permission to kill him, and not an obligation? With respect to the homeowner himself, one might explain that he may forgo his property and thereby save the thief's life; but how can the killing of the thief be only optional for a third party, who does not know whether the homeowner will give up his property or risk his life? And how can an act that is merely permitted and not commanded be allowed in a manner that involves Torah-level desecration of the Sabbath?

Necessarily, there is in truth no full-fledged case of life-saving emergency here, and therefore killing the thief is only a permission. The Torah defines such a situation as pursuit in order to permit the homeowner to defend his property even at the cost of the thief's life, despite the absence of real danger to the homeowner's life. Defining the danger as a life-threatening one broadens the permission to a third party, but does not turn the killing of the thief into a commandment and an obligation.[23] As we explained above, Jewish law freezes all prohibitions that might protect the offender, and therefore the prohibitions of murder and Sabbath are frozen. If killing the thief derived from danger to the homeowner's life, one could not explain why it is not obligatory.

3. The manner of killing

As noted above, regarding the tunneling burglar Maimonides writes that 'any person has permission to kill him… by any death with which one can kill him' (Laws of Theft 9:7). By contrast, concerning the pursuer Maimonides writes: 'Every one who kills a person… his death is by the sword… but one who pursues his fellow to kill him… all Israel are commanded to save the pursued from the pursuer, even at the pursuer's life' (Laws of Murderer 1:1–7).

Why did Maimonides not emphasize in the Laws of Murderer that the pursuer is killed by any death with which he can be killed, just as he emphasized this with respect to the tunneling burglar? It appears that whereas the pursuer is killed as a punishment for coming to kill (and the only difference between him and a murderer judged by the court is that this one is killed before committing the sin and that one after committing it), and therefore ideally his law is death by the sword,[24] the tunneling burglar is not the carrying out of a death penalty for an intention to kill, but the realization of the right to defend property (or a punishment for the theft), and therefore it is not specifically by the sword.

4. The presumption that the thief will not yield over his property – really?

Rava said: What is the reason for the tunneling burglar? It is presumed that a person does not stand aside regarding his property. And this one says: If I go in, the owner will stand against me and not let me, and if he stands against me, I will kill him. And the Torah said: If someone comes to kill you, rise early to kill him first.              (Sanhedrin 72a)

As we saw above, the medieval authorities disagreed about the identity of the one who does not stand aside regarding his property. The Ran explained that this is the homeowner, who certainly will not stand by while his property is being stolen, up to the point of killing the thief; and because of the thief – who knows this and is ready to kill him – he is judged liable to death. In contrast, Maimonides understood that it is the thief who does not stand aside regarding the property he stole (Laws of Theft 9:9):

Why did the Torah permit the blood of the thief even though he came over monetary matters? Because the presumption is that if the homeowner stands before him and prevents him, he will kill him; and thus this one who enters another's house to steal is like a pursuer after his fellow to kill him, and therefore he is killed…

According to Maimonides, the presumption that 'a person does not stand aside regarding his property' refers to the thief, who will not let the homeowner take back his stolen property, and will murder him rather than abandon the theft and flee. Maimonides' intention is apparently to emphasize that this is a situation of pursuit, and that the homeowner's life is indeed in danger.

But ordinarily we know that one suspected of a lesser offense (theft) is not thereby suspected of a graver offense (murder). Why here, according to Maimonides, is the thief suspected of killing the homeowner if the latter tries to stand against him? It appears that this is not a factual presumption, but a normative determination: where there is some possibility that the thief came prepared to kill, we treat him as a pursuer, in order to deprive him of the law's protection.[25]

5. The degree of certainty required regarding mortal danger

A further proof that danger to life is not the primary reason for the permission to kill the thief may be brought from the concluding phrase of Maimonides (9:9): 'Accordingly he is killed, whether adult or minor, whether male or female.' Does a woman or a minor truly endanger the homeowner's life?! Necessarily, the killing is because of the threat to property (which exists also from a woman or minor), and the danger to life only applies to the thief the halakhic definition of 'like a pursuer.'

Indeed, the Talmud determines that ordinarily, when a person discovers a thief trying to break into his house – he may kill him. Only when there is certainty that the thief will not try to kill the homeowner (for example, a father stealing from his son) – may he not be killed (Laws of Theft 9:10).[26] This stands in contrast to the law of the pursuer, which applies only where there is near-certainty that the pursuer really intends to kill.

What is the law of a person who kills a thief even though there is certainty that the thief has no intention of killing? With respect to such a case Maimonides rules (Laws of Theft 9:10): It is forbidden to kill him, and if one killed him, this is one who has killed a human being. In the following laws, regarding a thief who has already emerged from the tunnel and regarding a thief who entered a place where the owners are not usually present, Maimonides rules in the language: 'he has bloodguilt protection.' Perhaps one may infer from this that since the primary reason for the permission to kill the thief is saving property and not saving the homeowner's life, even in a case where there is certainty that the thief will not kill the homeowner – the one who kills him is not punishable by death.[27]

Some support for this approach may perhaps be brought from the Ran's view cited above. As noted, according to the Ran the permission to kill the thief does not derive from the danger to the homeowner's life, but from his right to protect his property, and therefore Jewish law does not condition the killing of the thief on a real danger to the homeowner's life. Consequently, it is plausible that according to him even in a case where it is certain that the thief will not kill the homeowner, such as a father coming to steal from his son, if the son kills his father – the Ran would grant that act ex post legitimacy and would not judge the son as a murderer. In modern terminology, one would say that the son could be accused of manslaughter, but not of murder.[28] Admittedly, this interpretation of the Ran's words is not necessary, and requires further examination.

6. An alternative path to rescue

With respect to the pursuer, Maimonides rules that if possible one must warn him, and if it is possible to save the pursued by injuring one of the pursuer's limbs – that should be done and he should not be killed (Laws of Murderer 1:7–8). By contrast, neither the Talmud nor Maimonides mention these qualifications with respect to the tunneling burglar, and several later authorities inferred from this that one need not warn him, and that one may kill him even if it is possible to stop the danger to the homeowner's life by injuring one of the thief's limbs (see Chamra VeChayyei on the passage in Sanhedrin; responsa Shevut Yaakov II no. 187; responsa Beit Zevul II no. 2; and others).

How can it be that with respect to a pursuer – who seeks to kill the pursued – every effort must be made not to kill him, whereas precisely the tunneling burglar – whose primary intention is to steal, not to kill – may be killed even if the same objective can be achieved through less severe harm? The author of Shevut Yaakov addressed this question and offered two answers. His first answer is that the pursued person is frantic for his life, and one cannot require him to examine alternatives before he kills his pursuer. On this approach, every person would be considered 'the pursued himself' with respect to the tunneling burglar. However, since there is a dispute regarding the extent of the pursued person's own obligation to examine alternatives before harming the pursuer (see Mishneh LaMelekh, Laws of Injury and Damage 8:10),[29] the author of Shevut Yaakov offers another answer: with a tunneling burglar, 'since he performed the act of tunneling in, he is established as an actual murderer. Therefore there is no need to save him by means of one of his limbs. This is not so with an ordinary pursuer – a person may exaggerate and not act, and perhaps his intention was only toward one of the other's limbs; but the tunneling burglar is established as a murderer.' Yet this answer too is puzzling: how can the expected danger to the life of the pursued be greater when the aggressor's intention is to steal, and not when his intention is apparently to murder?!

Above we explained that the permission to kill the thief does not derive from the danger to the homeowner's life, but from the fact that the thief seeks to use the prohibition on killing him as a shield while he harms his fellow. At first glance, the same should be true of the pursuer, who also seeks to use the law as a shield while he harms his fellow, and according to our analysis the Torah should have permitted the blood of the pursuer as well, just as it permits the blood of the tunneling burglar. It appears that the very fact that the thief is in the tunnel is what permits his blood. In the case of the pursuer, the danger to the homeowner's life is what permits the life of the pursuer, and therefore if that danger can be neutralized by injuring one of the pursuer's limbs – he may not be killed. In the case of the thief, by contrast, the fact that the thief has unlawfully entered another person's house and seeks to steal from there – that itself permits his blood, and not the danger to the homeowner's life; therefore in every case his blood is permitted, irrespective of the danger to the homeowner's life.[30]

In another formulation, this answer appears in the words of the Brisker Rav in his novellae to Maimonides (Laws of Murderer 1:13): the homeowner may kill the tunneling burglar, and is not required to seek an alternative way to stop the theft, because he is considered legally as good as dead.[31]

Maimonides further wrote: 'Any thief who has bloodguilt protection – if a heap fell upon him on the Sabbath, one removes it from him; and if he broke vessels during his entry, he is liable for payment. But one who has no bloodguilt protection, who broke vessels during his entry – is exempt.' Why did he not write that in the case of one who has no bloodguilt protection, one removes the heap from upon him?[32] It follows that although when he is trapped beneath the heap he no longer threatens the homeowner's life, nevertheless he is considered legally dead and there is no need to save him, just as when one could save by injuring one of his limbs he is still considered legally dead.

V. The law of the informer is derived from the tunneling burglar and in turn illuminates it

1. The permission to kill the informer stems from danger to property

The law of the tunneling burglar comes and teaches the law of the informer, as brought by Hagahot Maimoniyot at the end of the Laws of Theft in the name of SeMaG (negative commandments, end of no. 160) and Yere'im (no. 175):

Rabbi Eliezer of Metz [the Yere'im] compared the matter of the informer to the tunneling burglar, since a person does not stand aside regarding his property, and therefore it is permitted to kill him, as we say in the last chapter of HaGozel Batra (Bava Kamma 117a): 'Rav Kahana broke the neck of that informer.' And so too in the Jerusalem Talmud, chapter 'The Stubborn and Rebellious Son,' halakhah 8.

The application of the law of the pursuer to the informer likewise stems from the presumption that when gentiles come to take a Jew's money, he will certainly stand against them, and they may kill him. The Talmud in Bava Kamma indeed deals with the law of the informer and permits his blood, but what is the proof from the Jerusalem Talmud?

In the commentary Amudei Yerushalayim on the Jerusalem Talmud it is explained that the proof is from the words of Rabbi Shimon bar Yochai in the Jerusalem Talmud:

Even outside the tunnel there is no bloodguilt for him, because a person's property is dear to him as his own life. When he sees him, he goes to take back his money from him, and the other rises against him and kills him.

The conclusion that emerges from Rabbi Shimon bar Yochai's words is that in every case of monetary conflict the owner of the money may kill the thief, for every such dispute may deteriorate into mortal danger. Even when the thief has already completed his theft, and certainly will not return to the homeowner's house in order to kill him – the homeowner may still kill him, because the Torah determined that 'there is no bloodguilt for him.' From here the medieval authorities inferred that it is also permitted to kill an informer, for he too endangers the property of the Jewish people.[33]

Admittedly, in Teshuvot Maimoniyot (Book of Damages, responsum 15)[34] it is brought that killing the informer is because of the future danger to life, when a Jew may fall into the hands of the gentiles and they will fabricate accusations against him, and not because of danger to property alone. But even according to that view – it seems that this danger to life is future and tenuous, and under the ordinary categories of danger to life and the law of the pursuer we would not have taken it into account. Only because of the danger to property, and because of the novelty that the Torah introduced in the law of the tunneling burglar, is it permitted to kill the informer. In this case too – as with the tunneling burglar – the danger to life is only a fiction, whose purpose is to justify the defense of property even at the cost of the life of the one who endangers it. Thus, for example, the Rosh wrote in his responsa (17:1; see also 17:6):

Therefore the custom has spread throughout the Diaspora that when there is an informer established by the fact that on three occasions he has informed against Jews or their property into the hands of violent authorities, people seek counsel and stratagem in order to punish him [Venice edition: remove him from the world], as a protective measure, so that others be warned and informers not multiply in Israel, and also in order to save all the Jews persecuted under his hand.

The Rosh explicitly writes that one must seek 'counsel and stratagem' in order to kill the informer; from this it emerges that his law differs from that of an ordinary pursuer, whom one may kill without the need to find 'counsel and stratagem.'[35] It appears that the Rosh too holds that the permission to kill the informer does not derive from the future danger to life that he may cause, and that danger to life is only the halakhic mechanism that makes possible the killing of the informer.

2. Why is the informer not exempt from monetary payment?

On the words of Hagahot Maimoniyot, which derives the law of the informer from the law of the tunneling burglar, later authorities asked (see Pnei Yehoshua on Bava Kamma 117a; Minchat Chinukh, commandment 236; responsa Achiezer I no. 18 subsec. 2, s.v. uve-shitat; novellae of Rabbi Meir Simchah to Bava Kamma ad loc.): why is the informer obligated to pay for the financial damage he caused, when the Torah permitted him to be killed, and with regard to the tunneling burglar it is ruled that if he broke vessels during his theft – he is exempt from paying for them because the greater penalty displaces the lesser?

In order to answer this difficulty, let us look at the words of the Shulchan Arukh (Choshen Mishpat 388:10; and likewise Maimonides, Laws of Injury and Damage 8:10):

It is permitted to kill an informer even in our time. And it is permitted to kill him before he informs, but only once he says: 'I am about to inform against so-and-so in his person or in his property,' even if it is a small amount of money – he has rendered himself liable to death. One warns him and says to him: 'Do not inform'; if he brazenly says, 'No – I will inform against him,' it is a commandment to kill him, and whoever kills him first gains merit.

Gloss: If there is no time to warn him, no warning is needed. And some say that one may not kill the informer unless it is impossible to be saved from him by injuring one of his limbs; but if it is possible to save by injuring one of his limbs, such as cutting out his tongue or blinding his eyes – it is forbidden to kill him, for he is no worse than any other pursuer.

The Shulchan Arukh (following Maimonides) explains the permission to kill the informer by saying that he 'rendered himself liable to death.' He does not mention any future danger to life that the informer may cause.[36] Of course, the rationale that the informer rendered himself liable to death is not by itself enough to permit killing a person: if someone says, 'Kill me and wound me,' does that thereby become permitted?! It appears that this expression comes to teach that the brazenness of the informer proves that he hopes the law will protect him. As stated, one who seeks cynically to shelter under the law, the law strips him of all protections and permits his blood.

One should note that the Shulchan Arukh rules that the informer must be warned before he is killed, and only if he brazenly persists may he be killed. Hence it seems proper to explain that the informer in truth does not create danger to life, but only danger to property, and therefore he resembles a father who comes to steal from his son, who has bloodguilt protection and to whom the rule that the greater penalty displaces the lesser does not apply. For this reason the law determined that one must warn the informer before killing him, unlike the tunneling burglar – whom one need not warn before killing him. And nevertheless – despite the fact that no danger to life at all arises from the informer's actions, if he was warned and did not respond – one may kill him. The fact that the informer did not respond to the warning teaches that he is relying on the law to protect him, and with regard to such a person the law freezes all the laws that might protect him. Perhaps from here too there is proof for our earlier words, that even in the case of a father who comes to steal from his son – if the son killed his father, although he was forbidden to do so, he is exempt from punishment.[37]

To conclude, let us mention another law stated regarding an informer – a person established as an informer may be killed even after he has already carried out the act of informing (Shulchan Arukh Choshen Mishpat 388:9–11). If we continue the analogy between the laws of the informer and those of the tunneling burglar, we may conclude that a thief established in stealing, who does not heed the warnings given him – may be killed even after he has stolen.[38]

Z. Conclusion

• The permission to kill the tunneling burglar rests on two foundations: first, a person's right to protect his property; and second, the fact that the Torah removes all protections from one who seeks to exploit its laws for evil. Suspending this permission on danger to the homeowner's life can be explained in one of two ways:

1. This is only a legal fiction, whose purpose is to prevent a cheapening of human life;
2. Where no danger at all is present, it is possible to protect the property without killing the thief, and therefore there is no need to kill him.

• The laws of the tunneling burglar, according to which one may kill the thief only where there is a threat to the homeowner's life, were stated only in a situation where the property can also be defended without killing the thief. Where the property cannot be defended without killing the thief – one may kill him even without a threat to life.
• Since the permission to kill the thief rests (if only by virtue of the fiction) on danger to the homeowner's life, the existence of some threat – even merely theoretical – to life is required. Such a threat constitutes a formal justification for killing the thief. In the absence of any threat to life, the killing is forbidden.
• Nevertheless, if the thief was warned and persisted in his actions – one may kill him, even if he poses no threat to life, and even on the Sabbath.
• Similarly, if the homeowner transgressed and killed the thief in a place where no danger at all threatened his life – he is not punished for that killing.

Appendix:[39] One does not kill over monetary matters

The author advances sweeping innovations, of a kind unknown to our predecessors, in my humble opinion.[40] Since we are dealing with matters of life and death, I will not refrain from commenting.

A. According to the author, even in a situation where there is no presumption that the matter will lead to bloodshed, such as a father against a son, ex post, if the son killed his father – he is exempt. The author relies on the words of the Ran, according to whom the presumption that a person does not stand aside regarding his property, and what follows from it, is not directed at the thief but at the homeowner, who will not let the thief steal, to the point of killing him. The thief knows this, and therefore is capable of killing the homeowner in self-defense. If so, it emerges that the thief as such does not intend to kill; rather, this is a legal right of the homeowner to kill the thief, even though he comes only over monetary matters.

This is an innovation that not only has no trace in the Talmud, but even contradicts the plain meaning of the verse 'there is bloodguilt for him' and the Talmud's statement 'he has bloodguilt protection.' In my humble opinion, such a conclusion also cannot be drawn from the Ran's words. Even if the presumption that 'a person does not stand aside regarding his property' is a psychological presumption, it may still be legitimate in the eyes of Jewish law. Jewish law takes human nature into account, and since the thief will come to kill the homeowner in self-defense, the homeowner may kill him first.

The author contrasted this law, which takes into account the fact that a person does not stand aside regarding his property, with the law that forbids extinguishing a fire on the Sabbath. But in truth there is no contradiction between these laws. Indeed, Jewish law prefers the Sabbath over money, and commands a person not to extinguish a fire on the Sabbath. On the other hand, in the case of the tunneling burglar there is another option for avoiding both killing and desecration of the Sabbath, namely – that the thief retreat. Since it is presumed that a person does not stand aside regarding his property, the homeowner may resist. And since there is now danger to life, he may strike first and kill the thief. The thief has brought himself into the status of a pursuer. Rabbi Shlomo Zalman Auerbach says something similar, in a different style (Minchat Shlomo I no. 7): in the case of a fire, 'that damage was decreed upon him from Heaven, and therefore he may not transgress even a rabbinic prohibition in order to save his property; not so when it is done by a human being who threatens to kill him…' I have wondered about a case of one person pursuing another in order to kill him, where the pursued can either flee or kill his pursuer – may he kill him? Is there here a similar situation to the rule that a person does not stand aside regarding his property?

B. The author points to a difference between the law of the tunneling burglar and that of the pursuer – that with the pursuer it is a commandment to save him by injuring one of his limbs, whereas with the tunneling burglar no similar law is mentioned by Maimonides. Simply speaking, one may say that since Maimonides likened him to a pursuer, he relied on the reader to find in the law of the pursuer the obligation to save him through one of his limbs.[41]

C. According to the author, if the homeowner warned the thief and he did not respond – it is permitted to kill him even initially, even without a threat to life, as in the case of a father against a son. This is a sweeping innovation that contradicts the plain meaning of the verse 'there is bloodguilt for him.' For even with an actual pursuer, one must initially warn him, akin to a formal warning (Maimonides, Laws of Murderer 1:7), and all the more so the tunneling burglar, where this is possible. If so, every tunneling burglar requires warning, and nevertheless in the case of a father against a son – 'there is bloodguilt for him,' and one may not kill him. We have not heard that an ignored warning transforms a prohibition into a permission.[42]

D. The author bases his innovation on the law of the informer, and there he understood the Talmud as speaking also of a case in which there is only a threat to money, without a threat to life. But that is not so. The Rosh already wrote in his rulings (Bava Kamma ch. 10 no. 27): once Jewish money falls into gentile hands, they show it no mercy; today they take part of it and tomorrow all of it, and in the end they torture and kill him so that he admit that perhaps he has more money; therefore he is a pursuer, and one may save oneself from him at the cost of his life. The expression used in the Talmud there refers to danger to life. All the more must this be understood against the sociological background of gentile-Jewish relations, when the informers were people who had separated from the community and collaborated with gentiles hostile to Jews. Therefore one must not examine an isolated case, for the phenomenon of informing is treated in Jewish law as part of the law of the pursuer.[43]

E. Reliance on Rabbi Shimon bar Yochai's opinion in the Jerusalem Talmud, Sanhedrin 8:8, that even a thief outside a tunnel 'has no bloodguilt protection,' is deficient, for the law is not so, as Maimonides rules in Laws of Theft 9:11. Even according to Rabbi Shimon bar Yochai there ('a person's property is dear to him as his life'), the case is not one in which danger to life has passed. See the commentary Penei Moshe ad loc.: 'when this one sees that the homeowner is going after him and wants to take the money from him, he will rise against him and kill him…'

F. As for the difficulty from gentiles who besiege Jewish towns, where the Talmud (Eruvin 45a) forbade desecration of the Sabbath – the beraita explicitly contrasts between 'they came over monetary matters' and 'they came over matters of life.' It is clear, therefore, that in the case of 'they came over monetary matters' the meaning is that there is no danger to life at all, similar to the law of a father who comes to steal from his son, whose blood was not permitted.[44]

G. As for the distinction made by the Magen Avraham (329:5) between an individual who endangers the homeowner and a group, see what I wrote in Sha'arei Tzedek (vol. 6 p. 73), distinguishing between a thief who breaks into a person's house and courtyard, a place from which there is no retreat, and one who steals property in the field outside the home, where according to the Magen Avraham the individual has a duty to retreat. The home has a special status, because there is nowhere to flee. Thus too says the English proverb: a man's home is his castle.

H. It should further be noted: Maimonides explicitly rules that a thief who enters his fellow's garden, field, or animal pen is not considered a tunneling burglar, and one may not kill him, since 'the presumption is that he came only for the money, because most owners are not found in these places.' Possibly this was the situation facing Shai Dromi. On the other hand, it is possible that the ranch adjoining the house is considered his courtyard and enclosure, which have the status of his house, and this requires examination.

Beyond that, it is clear that even when a thief tries to break into a field – there is some danger to the homeowner's life, and nevertheless Maimonides ruled that he is not considered a tunneling burglar. Here we see that a certain threshold of danger to the homeowner's life is required in order to permit the thief's blood.

I. Indeed, one cannot escape the conclusion that the law of the tunneling burglar is broader than the law of the pursuer, and is not limited to a place where there is real and immediate danger to the homeowner's life. It is plausible that the reason for the special law of the tunneling burglar is the severe injury to the homeowner's autonomy. The tunneling burglar is not a robber, nor even an ordinary thief, but a trespasser who violates the sanctity of the homeowner's house and enters it in order to steal property from him. The Torah treats with special severity a person who breaks into another person's house, and assumes – as a working assumption – that a person who behaves in such a way, and penetrates the most private place in which a person lives, presumably will not shrink from killing him either.[45]

J. Finally, it should be noted that it is not correct to establish laws, especially in matters of life and death, on the basis of intuition. Not only is moral intuition not a sufficient source – certainly not in matters of life and death – but it is also unreliable. If the author's intuition justifies the homeowner who kills the thief, mine says the opposite – that one must not kill over monetary matters alone, unless some concern for life also arises.[46]

[1].    I will not deal here with the subject of a gentile who comes tunneling in, and the differences – if there are any – between him and a Jew who comes tunneling in. I refer only to Rabbi Shaul Yisraeli's article on the Qibya operation (Amud HaYemini no. 16), from which it emerges that a person may not even save himself at the cost of a gentile's life or property. See also my article, 'The Problem of the Collective and the Individual and the Jenin Dilemma,' in Tzohar 14.

[2].    Thus the plain meaning of Scripture would seem, and so wrote David Henshke in his article, 'The Tunneling Burglar – On the Relation of Midrash to the Plain Meaning,' Megadim 7, around notes 4–8, in the name of Rabbi Joseph Bekhor Shor and Hizkuni; see also the article by Yoel Elitzur, Megadim 6. For our purposes, our conclusion below may be applied to the interpretation of the verses as well, but our concern here is with Jewish law, not biblical exegesis.

[3].    It should be noted that later authorities also wrote regarding the pursuer (see, for example, Afikei Yam II no. 40) that his killing is not done only for the defense of the pursued, but also as a prior punishment for the fact that he is about to commit an offense punishable by death.

[4].    [Admittedly, it is clear that the killing of the stubborn and rebellious son is preventive and not punitive, as the Mishnah says: 'The stubborn and rebellious son is judged on account of his end – let him die innocent and not die guilty' (8:5). For this reason his penalty is not by the sword, like that of a murderer, but by stoning. – Editor's note (Y.B.)]

      Author's response: In my humble opinion, it is clear that 'judged on account of his end' means that the stubborn and rebellious son is already liable to death now because of the act that has not yet been done; that is, his killing is punishment, not prevention. The phrase 'let him die innocent and not die guilty' means that it is preferable to punish him now, before he has committed the sin, rather than after he has committed it. In this respect, the law of the stubborn and rebellious son resembles that of the pursuer, who is also 'judged on account of his end,' and as we shall see below, his killing is punishment and not only prevention. The offense that the stubborn and rebellious son is destined to commit is disputed between the two Talmuds and among the medieval authorities – whether it is murder or theft.

[5].    Thus the author of Afikei Yam II no. 40 inferred, both regarding the pursuer and regarding the tunneling burglar.

[6].    [See my article, 'Self-Defense at the Cost of the Pursuer's Life,' in Techumin 10, pp. 76ff., where the relationship between the tunneling burglar and the pursuer is discussed at length. The central axis of my article there is built on the distinction between rescue by a third party and self-defense by the pursued himself. This distinction is connected to the opinion of the Mishneh LaMelekh (Laws of Injury and Damage 8:10), who wrote that the pursued need not be meticulous to 'save by injuring limbs.' But even according to the view that the pursued must be meticulous in this, a difference still remains between him and a third party. There is a psychological allowance for the natural panic of a pursued person who is desperate to defend himself, even at the cost of mutual danger. Halakhic recognition of this natural behavior removes the ground from beneath a considerable part of the author's arguments in this article, and there is no need (and therefore no room) for his innovation that the passage of the tunneling burglar concerns a kind of punishment over monetary matters, rather than specifically self-defense connected to danger to life. – Editor's note (Y.R.)]

      Author's response: This claim is self-evidently refuted, because the passage itself does not distinguish between the homeowner and a third party. In Rabbi Rosen's article the opinion of Beit Zevul was cited, according to which this is to be explained by saying that anyone who comes to save the pursued is subject to the same threat as the pursued himself, and therefore there is no need to mention him explicitly. This opinion undermines the distinction that he himself tries to establish between the tunneling burglar and the pursuer, for in every case of a pursuer that is the situation.

[7].    Admittedly, it is possible that this stems from the fact that the verses serving as the source for the law of the pursuer speak explicitly of a third party who comes to save the pursued ('the betrothed maiden cried out, and there was none to save her'), and therefore there is no need for a special derivation. But if we understand it thus, another question arises: why did the Talmud not derive that a third party may kill the tunneling burglar from the law of the pursuer itself, and why did it require a special derivation from the verses?

[8].    See, for example, Meiri to Sanhedrin 72b; Ran to Sanhedrin 72a; and this is also precise in the language of Maimonides, Laws of Murderer 1:7, when compared to his language in Laws of Theft 9:7.

[9].    As we shall see below, Rabbi Elazar Menachem Shach inferred from this passage that the law of the tunneling burglar is a special scriptural decree with respect to a thief, and does not derive from the threat to the homeowner's life. Even according to his view, however, one must ask: why was the law of the tunneling burglar withheld from these gentiles?

[10]. According to Terumat HaDeshen's assumption that the gentiles of his time were more violent than those of the Talmudic era, Rabbi Shach's difficulty from the law of the tunneling burglar against the law of 'gentiles who besiege Jewish towns' is resolved: the beraita dealt with gentiles who did not endanger life, and therefore one does not fight them on the Sabbath, unlike the thief who comes tunneling in, regarding whom the presumption is that he endangers the homeowner's life. It appears that Rabbi Shach disagrees with Terumat HaDeshen about the character of the gentiles in the Talmudic period, and therefore needed – similarly to what we say below – to argue that killing the tunneling burglar is a punishment for his theft.

[11].  [Rabbi Shlomo Zalman Auerbach (Minchat Shlomo I no. 7) answered this difficulty in line with his approach that a person is not required to invest money or great effort in order to avoid desecrating the Sabbath in a case of danger to life: 'Just as it is permitted to adjure one's fellow and one need not be concerned that he thereby causes him to violate the prohibition of "You shall not take [God's name in vain]," so too it is permitted to rise up against the thief and not be concerned that thereby he makes him into a pursuer and permits his blood.' See also what is brought in his name in Shemirat Shabbat KeHilchatah ch. 41 n. 70. – Editor's note (Y.B.)]

      Author's response: This principle itself points to the relation between the value of defense of property and the value of danger to the life of the one who threatens, and therefore my principal claim remains in place even according to it.

[12]. [Perhaps there is no contradiction here. On the one hand (in the matter of the fire) – Jewish law commands a person to sacrifice all his property in order not to desecrate the Sabbath; on the other hand (in the matter of the tunneling burglar) – the thief does not know whether the homeowner will withstand this challenge and refrain from desecrating the Sabbath, and he also knows that human nature is such that a person does not stand aside regarding his property. Therefore the thief fears that the homeowner may rise against him and kill him even on the Sabbath, and he accordingly prepares to kill the homeowner in order to save himself. Therefore the homeowner too – from his side – may kill the thief, because of danger to life. – Editor's note (Y.B.)]

      Author's response: If so, why does the Torah not command the homeowner to hide, in which case neither of them would be killed?

[13].  This principle should be learned from the permission cited in the Talmud for Zimri to kill Pinchas, who came to attack him (Sanhedrin 82a), despite the fact that he could simply stop his act and thereby prevent Pinchas from killing him. The author of Kli Chemdah (end of Parashat Balak) explains that since Pinchas, by his action, forced Zimri to choose between stopping the sin and killing Pinchas – he must bear the consequences, and cannot use the halakhic protection of 'do not murder' in order to force Zimri to stop sinning. Certainly Zimri's right to sin is far less than the homeowner's right to preserve his property. See also Mishneh LaMelekh, Laws of Murderer 1:15; Tzafnat Pa'neach, Laws of Forbidden Intercourse 12:5; responsa Minchat Shlomo I no. 7 section B; novellae of Rabbi Shmuel Rozovsky, Pesachim, pp. 95–96.

      [It is difficult to see in 'do not murder' a halakhic protection. It is an obligation imposed on the homeowner, not a 'halakhic protection' of the thief, and therefore he cannot 'waive' his 'right' not to be murdered. – Editor's note (Y.B.)]

      Author's response: As the Brisker Rav inferred precisely (in his novellae to Maimonides, Laws of Murderer 1:13), there are two laws in the permission to kill the pursuer: the nullification of the pursuer's right to life ('there is no bloodguilt for him'), and a permission with respect to the prohibition of murder. The Torah imposes not only duties but also creates rights; see what I wrote in Midah Tovah no. 137 (Chukat 5767). In any event, the prohibition of desecrating the Sabbath is certainly not anyone's 'right,' and nevertheless the Torah permitted it in order to kill the thief. The Torah freezes all the laws that protect the offender, even if they are not defined as laws based on rights.

[14]. [This possibility does not accord with the views cited later in the article, according to which the homeowner may kill the thief even if he can prevent the theft by injuring one of his limbs. Likewise, if the homeowner's life is not in real danger but only in theoretical danger, why did the Torah permit him to kill the thief? – Editor's note (Y.B.)]

      Author's response: Indeed, this note repeats my own question: why really was the homeowner permitted to kill the thief? The answer is that this is a fiction, whose purpose is to prevent a cheapening of human life, but the permission itself is based on the right to defend property and on the removal of protections, as explained above. Beyond that, it is possible that where there is no risk to the homeowner's life – the law of the tunneling burglar does not apply; but if there is risk to the homeowner's life and the law of the tunneling burglar does apply – he is no longer obligated to be meticulous about the possibility of sufficing with injury to one of the thief's limbs.

[15].  [This reasoning is highly puzzling, for it could be said regarding every punishment established by the Torah. Would it enter one's mind, for example, that a person who speaks slander about his fellow, and his fellow warns him and he does not stop, may be killed because 'he seeks to rely on the prohibition of do not murder, which forbids killing him'? Once the Torah established a punishment for a person who speaks slander – that is his punishment, and no more, and one may not punish him with a more severe punishment because he 'relies' on the fact that he will not be so punished. Thus exactly, once the Torah established that the punishments of the thief are monetary payment, double payment, and fourfold and fivefold payment – these are the thief's punishments, and he is entitled to 'rely' on the fact that he will not be punished with death for the offense he committed. – Editor's note (Y.B.)]

      Author's response: Killing the thief is not a punishment for the thief, but self-defense by the homeowner against him (or by a third party acting on the homeowner's behalf). The reason the Torah permitted, in this exceptional case, killing one person in order to protect the interests of another person is that the first person (the thief) seeks to use the Torah's laws in order to harm his fellow. In a situation in which slander were to become a phenomenon threatening society, and on the assumption that it would involve some concern – even remote – of danger to life, it may be that one would be permitted to kill the slanderer under the law of the tunneling burglar.

[16].  If one asks: why is it permitted to kill them, whereas it is forbidden to desecrate the Sabbath? It appears that for the permission to kill the thief there is no need for the rationale that Jewish law removes from him the prohibition of murder; it is enough that he threatens to kill whoever does not hand over his money. When a person threatens me with death if I do not give him my money, Jewish law does not require me to hand him the money, and I may fight him in order to save my property. See Minchat Shlomo I no. 7, who brought many proofs for this.

[17]. [Does the permission to kill depend on the thief's subjective intention? What then would be the law of a thief who enters the house of a person who is not observant, who is not deterred at all from transgressing the prohibitions of the Sabbath and of murder? Such a thief is not using Jewish law as a shield – would it then be forbidden to kill him on the Sabbath?! – Editor's note (Y.B.)]

      Author's response: The Torah's assumption is that a Jew observes Torah and commandments, and the law is stated with respect to that assumption (and indeed above we suggested a similar explanation regarding gentiles, following the Magen Avraham). True, one must discuss what the law would be when this situation changes, but that is not our subject here.

[18]. The main points below are also brought in Avi Ezri, Laws of Theft ch. 9; Laws of Murderer ch. 1; Laws of Sanhedrin ch. 14.

[19]. [Admittedly, the laws of the tunneling burglar are located at the end of the Laws of Theft (ch. 9), whereas the other punishments for theft – double payment, fourfold and fivefold payment – appear in ch. 1 of those laws. By comparison, the laws of the pursuer appear in ch. 1 of the Laws of Murderer and Preservation of Life, as a direct continuation of the detailing of the murderer's punishment. – Editor's note (Y.B.)]

[20].  It requires examination why the Shulchan Arukh does not bring the law of the tunneling burglar at all, and only the Rema in Choshen Mishpat 425:1 (in the framework of the discussion of the law of the pursuer) writes that the law of the pursuer also applies to the tunneling burglar – and no more.

[21]. The tunneling burglar is brought as one of the laws of theft also in Sefer HaChinukh (commandment 54). See also Guide of the Perplexed III, where the killing of the tunneling burglar is counted among the 'punishments' (chapter 41), and not alongside the pursuer, within the laws of damages whose purpose is 'to remove injustices or prevent harms' (chapter 40). After writing these words, Yonatan Blass likewise wrote similarly to our approach, in 'If the thief be found tunneling in and is struck and dies – Between Punishment and Rescue,' Parashat HaShavua Bulletin of the Ministry of Justice, issue 276, Mishpatim 5767.

[22]. Thus the Tosafists (Sanhedrin 73a s.v. af rotzeah) explained why the law of the pursuer is not learned from the law of the tunneling burglar – because killing the tunneling burglar is a permission, whereas killing the pursuer is an obligation. The Ran added in his novellae that this permission is given to every person, and not specifically to the homeowner, and this also emerges from Maimonides. Indeed, according to Tosafot one could have interpreted that once the Torah innovated that the tunneling burglar has the law of a pursuer, all the laws of the pursuer apply to him, and it is also a commandment to kill him (see Afikei Yam II no. 40; Margaliyot HaYam ad loc.). As stated above, this is not what emerges from Maimonides.

[23]. One should note that Maimonides found it necessary to state that the permission to kill the thief is given both to the homeowner and to a third party. In the Laws of Murderer there is no such detailed mention regarding the pursuer. Maimonides wishes thereby to remind us of the Talmud's initial assumption that a third party might not have permission, in order to teach us that the law of the tunneling burglar is not the law of an ordinary pursuer. The same applies to the mention of the permission to do so even on the Sabbath, which also does not appear explicitly in the Laws of Murderer and Preservation of Life.

[24].  Thus precisely inferred from his language by the author of Arukh LaNer, Sanhedrin 72b s.v. ve-hukkah, and by the author of Afikei Yam II no. 40 s.v. ve-ash. See also Sema 425:5. Admittedly, the Ran in his novellae wrote that even the tunneling burglar is ideally judged by the sword, and apparently he sees the threat to life as the basis of the punishment itself. As stated in the text, Maimonides apparently disagrees with him, and according to Maimonides killing the thief is a punishment for the theft, not a response to a threat of murder. Admittedly, this contradicts our earlier interpretation of the Ran, according to which the permission to kill the thief is for the sake of defense of property, not for the sake of defense of life. Perhaps indeed the basis of the permission is the protection of property, but after the Torah applied to the thief the law of the pursuer – it applied that law to him in all its details, including the ideal obligation to kill him by the sword. Indeed, the Meiri writes (there) that ideally one should kill the tunneling burglar by the sword because all the laws of the pursuer were applied to him.

[25]. Maimonides carefully wrote 'like a pursuer,' not simply 'a pursuer.' I already noted in my article in Techumin 27 (p. 146) that with regard to a fetus endangering its mother, Maimonides also used the term 'like a pursuer,' and not 'a pursuer.' A similar inference was made by the author of Even HaEzel (Laws of Theft 9:7–8), who added further examples from Maimonides' writings.

[26]. In the Talmud (72a–b) two beraitot are brought – according to one, it is permitted to kill the thief only where there is certainty that his intention is to kill, and according to the second, it is permitted even in a situation of doubt. The Talmud contrasts the two beraitot and rules in accordance with the second. One might perhaps see in this ruling evidence that even on the level of pure reasoning, it was clear to the sages of the Talmud that one may kill the thief even in a case of doubt (see Rashbam, Bava Batra 95b s.v. dayik me-rav Zevid). My son, the young Moses Gershon, called this proof to my attention.

[27].  See the Brisker Rav's novellae on Maimonides, Laws of Murderer 1:13, who distinguishes between two laws in the law of the tunneling burglar: on the one hand, 'there is no bloodguilt for him,' meaning that the killer is exempt from punishment because the thief is considered legally as good as dead; and on the other hand, 'permission is in the hand of every person to kill him,' even initially. If the phrase 'there is no bloodguilt for him' indicates exemption from punishment, then the phrase 'there is bloodguilt for him' indicates that the one who kills him is punished for that. Consequently, where Maimonides refrained from writing 'there is bloodguilt for him,' as in the case of a father stealing from his son, although the son may not kill his father, if he killed him he is exempt from punishment. See also Henshke's article (above n. 2), nn. 8 and 23.

      [As stated above, Maimonides ruled regarding a thief who enters a garden using the language 'there is bloodguilt for him.' It would appear obvious that the danger to life of a person into whose house a thief enters is greater than the danger to life expected of a son from his father (which is the case cited by the Talmud as an example of a thief who certainly will not kill the homeowner). Consequently, it is difficult to argue – as the author does – that specifically in the latter case, if the homeowner killed the thief he is exempt from punishment. – Editor's note (Y.B.)]

[28]. [Admittedly, the plain meaning of the Talmudic phrase 'there is bloodguilt for him' is that killing him is considered murder. – Editorial note]

[29].  See Rabbi Yisrael Rosen's article in Techumin 10, pp. 76–89.

[30]. [From this point on, after this explanation has been brought, there is no longer any need for the explanation offered throughout the article for the law of the tunneling burglar. Indeed, the tunneling burglar is not a pursuer, and he is not killed because of the danger to the homeowner's life. However, the reason the Torah permitted his blood is not that he 'exploits the Torah's laws as a shield,' but that he intrudes into another's house and 'violates the sanctity of his home' in order to steal from him. Therefore the permission regarding the tunneling burglar is limited specifically to a thief (and not to a robber or other offenders), and specifically to the homeowner's house (and not to his courtyard or field, whose 'sanctity' is lesser). See also Minchat Shlomo (I no. 7), for whom it is obvious that the law of the tunneling burglar applies also to one who enters another person's house in order to damage it, and not only in order to steal from him. From this it emerges that he too saw the focus of this law in the forbidden intrusion into the house. – Editor's note (Y.B.)]

      Author's response: First, from this very law of Rabbi Shlomo Zalman, my basic claim is proven, namely that the permission to kill does not depend on danger to life but is intended for the protection of property or person (for if one interferes with someone who is merely damaging property, is there also a danger of murder? That we do not find in the Talmud). Second, the explanation based on violation of the sanctity of a person's home is certainly no better than my proposal, and in practice almost returns to it. In any event, there is no disagreement here regarding the core innovation, namely that the permission is not because of danger.

[31]. Therefore, a thief who broke vessels while tunneling in is exempt from paying for them, for he is considered a dead person (Maimonides, Laws of Theft 9:13).

[32].  The commentators on Maimonides disagreed about this. See Magen Avraham, Mishnah Berurah, and Biur Halakhah on no. 329.

[33]. Indeed, also in the Bavli passage brought by Hagahot Maimoniyot as the source for the law of the informer (Bava Kamma 117a), the rationale for permitting the killing of the informer is not fear of future danger to life, but only the fact that gentiles show no mercy to Jewish property. Likewise in Maimonides, Laws of Injury and Damage 8:10, and in the Shulchan Arukh, Choshen Mishpat 388:10.

[34]. And similarly in the responsa of the Rosh, section 17; in Mordechai, Bava Kamma 195–196; and in the responsum of Maharam of Rothenburg cited in Beit Yosef, Choshen Mishpat end of no. 388.

[35].  [In simple terms he used this language because the informer enjoys the protection of the regime, and against it there is no alternative but to act by counsel and stratagem. – Editor's note (A.D.)]

[36]. Even the Beit Yosef mentions the words of Maharam about the mortal danger posed by an informer only at the end of his remarks and in passing.

[37]. [It appears that the law of the informer according to the words of the Shulchan Arukh and the Rema resembles more the law of the pursuer than that of the tunneling burglar: there is an obligation to warn him, it is a commandment to kill him, and one should try to save by injuring one of his limbs. – Editor's note (Y.B.)]

      Author's response: Only the Rema mentions the obligation to save him by injuring one of his limbs, and only in the language of 'there are those who say.' Apart from this, it seems that according to the Shulchan Arukh it is merely 'permitted' to kill the informer, as is clear from his language at the beginning of the paragraph, and the expression 'it is a commandment' at the end of the paragraph is only emphatic language.

[38].  According to the reports in the press, this is apparently what happened in the case of Shai Dromi, where one of the thieves was shot in the back while fleeing.

      [Seemingly, the case of Shai Dromi, where the thief tried to steal animals from his ranch, falls exactly within the bounds of the law ruled by Maimonides (Laws of Theft 9:12): 'Likewise, one who comes tunneling into his garden, or into his field, or into the sheepfold or enclosure – he has bloodguilt protection, for the presumption is that he came only for the money, because most owners are not found in these places.' – Editor's note (Y.B.)]

[39].  By the editor, Rabbi Itamar Warhaftig.

[40].  Author's response: I would note that these arguments certainly arose as an initial assumption in the Talmud, and therefore the one who claims that the conclusion is different bears the burden of proof. I would also note that Avi Ezri concluded this way, and in Minchat Shlomo too we found a source that takes this view. The rest of the proofs (compelling, in my humble opinion) are written on the preceding pages. Therefore, 'unknown to our predecessors' is a very exaggerated expression.

[41]. Author's response: As stated in the article, several leading later authorities inferred from Maimonides that there is no obligation to save the thief by injuring one of his limbs.

[42].  Author's response: The warning does not turn a prohibition into a permission, but rather ensures that the person is aware of the offense he is committing and has made his own blood forfeit. According to the critic's words, how can warning a person who desecrates the Sabbath 'permit his execution' by a religious court?

[43].   Author's response: See in the body of the article that even according to the Rosh, the reason for killing the informer is not the future danger to life. I would also remind the reader, as I noted above, that there is an explicit dispute among the medieval authorities on this point, and there is no need for inferences from wording. The explanation I proposed is the view of the author of the Shulchan Arukh and of the Rema, and from this its halakhic weight.

[44].   Author's response: How can it be that marauding gentiles are not suspected of bloodshed, whereas precisely an Israelite who comes tunneling in is suspected even of murder? It is clear that the same danger to the homeowner's life that is posed by a Jewish thief who comes tunneling in is also posed by gentiles who besiege his house.

[45].  Author's response: Comments G and I are mentioned as objections in the body of the article, and I have already answered them there by saying that the sanctity of a person's home is an invention no less (to put it mildly) than my own innovation, and in my humble opinion even less plausible than it.

[46].   Author's response: The subject of ruling on the basis of intuition is indeed an important one deserving discussion. In my humble opinion, intuition has an important place in halakhic decision-making, and in practice there is no possibility of ruling mechanically without using intuition as a guiding tool. Of course, every ruling must rely on the sources, but it is already cited in various places in the name of the Beit Yosef and the Chazon Ish that it is preferable to press the language than to press the reasoning. The illusion that one can rule without resorting to intuition is naive positivism, which most contemporary approaches in legal theory do not support. In any event, it seems that the author of the appendix's opinion is itself based on his intuition; in what sense, then, is it superior to the article, which is based on mine?