Dilemmas Concerning Human Life – Lecture 5

This is an English translation (via GPT-5.4). Read the original Hebrew version.

This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.

🔗 Link to the original lecture

🔗 Link to the transcript on Sofer.AI

[0:00] Presentation of the two central principles
[1:40] Determining which side of the equation we are on — pursuer or third party
[3:05] Dealing with minors and lack of intent
[4:32] The life-value of the fetus — partial life
[13:48] The prohibition on saving oneself through another’s property — Rashi
[16:01] The principle of “it is agreeable to him” and its implications
[21:40] The right to self-defense versus a free-standing value
[24:16] The extreme laws with no compromises
[26:16] Presentation of the topic of the burglar who tunnels in
[27:37] Introduction to the topic of the burglar who tunnels in
[33:59] Torah law regarding theft and the burglar who tunnels in
[36:48] The Talmudic text on the burglar who tunnels in — Rava
[42:07] Is it permitted to kill a burglar who tunnels in on the Sabbath?

Summary

General Overview

The text sets out two foundational principles that appear contradictory but can be reconciled: the prohibition on saving oneself by harming a third party, versus the law of the pursuer, under which it is permitted and even obligatory to kill the one posing the threat in order to save the person being pursued. It argues that practical dilemmas arise from the difficulty of assigning a given case to one of these poles, and that in reality things are not binary but include partial or doubtful pursuit and life-values that are not complete, such as a fetus, which Maimonides defines as “like a pursuer.” It then moves to the question of property, presenting Rashi’s view that a person may not save himself even through another person’s property, explaining this in light of Rabbi Shimon Shkop as a matter of ownership rights not dependent on the prohibition of theft, and arriving at the topic of the burglar who tunnels in, where the Talmudic text makes the permission to kill the thief depend on a future threat to life. It argues that despite the Talmudic interpretation, the structure of the topic and the verses suggest that the permission fundamentally stems from the right to defend one’s property, while the framing in terms of danger to life serves as a condition or limitation so as not to permit unrestrained killing.

Two Principles: Third Party versus the Law of the Pursuer

The text states that a person may not save himself at the cost of another person’s life when the injured party is a third party who poses no threat to him. In contrast stands the law of the pursuer, under which, if the threatener is part of the situation and endangers the other person, it is permitted and even commanded to kill the pursuer in order to save the pursued, and anyone is permitted and obligated to act for that purpose. The text attributes a punitive dimension to the law of the pursuer, in that the pursuer is about to kill and would therefore incur the death penalty, so there is no point in waiting until more life is lost.

Classifying Dilemmas and the Claim that Reality Is Not Dichotomous

The text argues that many dilemmas require deciding whether the harm is being done to an uninvolved party, in which case it is forbidden, or to someone who poses a threat, in which case the law of the pursuer applies. It adds that in practical cases it is difficult to determine to which side the injured person belongs, and therefore the binary picture is inadequate. The text presents a continuum of levels of threat and pursuit, rather than a yes-or-no division.

Partial Pursuit, “Like a Pursuer,” and Doubtful Pursuit

The text presents Maimonides’ category of “like a pursuer”: a fetus endangering its mother is not a full pursuer, but the danger to her life does come from it, and therefore it has an intermediate status. The text also presents doubtful pursuit in the example of the kites from Gaza, where there is intent to cause harm but in most cases death does not occur, and therefore the threat is partial. The text emphasizes that intent is not a condition for the law of the pursuer, because according to Jewish law one may kill a minor and an incompetent person as pursuers even though they lack understanding and no intentions are attributed to them.

Blame, Life-Value, and Combining Considerations

The text says that most halakhic decisors do not make distinctions between full and partial life-values with respect to old and young, or sick and healthy, and therefore there is no permission to kill one person in order to save another based on “more life.” It quotes Rabbi Maimon as saying that “youth is a passing defect,” and presents the position that at the two poles there is no room for weighing life-value: if the case involves a third party, it is forbidden to harm him regardless of life-value, and if it involves a pursuer, it is permitted and even obligatory to harm him regardless of life-value. The text argues that in intermediate cases there is an interplay between partial pursuit and partial life-value, and gives the fetus in Maimonides as an example of a combination of partial pursuit with the mother’s advantage as a “complete human being.”

The Kite Example: Partial Responsibility and the Gallant-Bennett Dispute

The text describes the dispute presented between Gallant and Bennett, in which Gallant argues that these are children and therefore it is not appropriate to kill them. It explains that this claim makes sense only if one assumes that the threat posed by the kites is a minor threat and partial pursuit, unlike a child with a gun aiming to kill, where it is obvious that the laws of the pursuer apply. The text proposes that when the risk is not full and the blame is not full, there may be a combination of considerations that weakens the full application of the law of the pursuer.

Proportionality, Personal Threat, and Decision-Making Institutions

The text distinguishes between a situation of concrete personal threat, where one may kill in self-defense, and distant or general risks such as dangerous driving, where the instruction is to move away. It says it has no simple criterion for the dividing line, and presents this as a matter of common sense and proportionality. The text emphasizes that this is not meant to become practical personal guidance but a framework of considerations, and that there are institutions meant to decide in public cases.

Partial Pursuit in Jewish Law: Rabbi Ben Zion Abba Shaul and Leavened Food on Passover

The text cites a responsum of Rabbi Ben Zion Abba Shaul about drinking water from the Kinneret for fear that a slice of bread had been thrown into it, and emphasizes that even “the slightest amount” has a measure and that there is such a thing as “not even the slightest amount.” It uses this to illustrate that there are intermediate zones where there is no sharp line, and from this arises complexity also in evaluating doubtful pursuit.

Property: “A Person Does Not Save Himself Through Another’s Property” and Rabbi Shimon Shkop

The text presents Rashi’s view in Bava Kamma 60b that a person cannot save himself even through another person’s property and not only through another person’s life, and notes that this is the straightforward meaning of the Talmudic text and that some of the medieval authorities (Rishonim) strain the Talmudic text because of the difficulty. The text explains, following Rabbi Shimon Shkop, that this is not a case of “be killed rather than transgress” with regard to theft, because preservation of life overrides theft, but rather that the problem is that the property belongs to its owner and the decision about it is not in the hands of the person in danger. The text states that according to this, even a gentile’s property is protected on the same “legal” plane because ownership itself is binding, even if there is a dispute regarding whether “you shall not steal” on a Torah level applies to a gentile.

“It Is Agreeable to Him” and the Difference Between Consent and Theft

The text presents the concept “it is agreeable to a person that a commandment be performed with his property” as a basis for permitting use of property where there is a presumption of consent. It states that if the owner of the property is standing there and explicitly refuses, then taking it is theft and forbidden, even if morally or halakhically he should have agreed. The text emphasizes that the distinction between saving oneself at the expense of a third party and the law of the pursuer depends on the fact that the third party poses no threat at all, whereas in the case of a pursuer, the harm is meant to neutralize a threat.

Right versus Value: Ownership, Freedom, and Zimri-Pinchas

The text argues that ownership and freedom are not “values” but “assets,” and therefore harming them is perceived as a violation of territory in which only the owner may decide, and the Holy One, blessed be He, will settle accounts with the owner if he refused to help when he was obligated to do so. The text cites the topic of Zimri and Pinchas: if Zimri had turned around and killed Pinchas, he would not have been executed for that, because although he is obligated to stop sinning before God, he does not owe that to the pursuer, and therefore Pinchas cannot force him to stop the sin under immediate threat.

An “American” Intuition and the Cases of Shai Dromi and the Automatic Rifle

The text describes a personal intuition according to which someone who enters his territory in order to steal deserves to be killed if there is no other way to prevent him from escaping with the property, paralleling the approach of “you’re on my property, I shoot you.” It mentions the Shai Dromi case and the public controversy over whether one may shoot thieves, and describes anger at the demand to “let them run away and file a complaint with the police.” It also mentions a case in the United States of a rifle installed facing a door that shot a burglar when the owner was not at home, and presents a similar idea in the Gaza context as an automatic action that places responsibility on the shooter.

An Article in Techumin and the Editorial Response

The text relates that he wrote an article in Techumin following the Shai Dromi case and argued that one can kill in order to defend property, and that the editorial staff objected on the grounds that this went against the topic and the halakhic decisors. The text says the article was published with editorial notes and his responses, and mentions that he was told the “presidency” referred to there had not in fact been asked.

The Burglar Who Tunnels In: The Verses, the Context, and the Punitive Dimension

The text quotes the passage, “If a man steals… if the thief is found tunneling in and is struck and dies, there is no bloodguilt for him… if the sun has risen upon him, there is bloodguilt for him.” It emphasizes that the verses appear within a system of sanctions for theft, creating the impression of a punitive dimension and not merely self-defense. It adds that the Mishnah in Sanhedrin links “the burglar who tunnels in” with “the stubborn and rebellious son” under the category of “judged based on their ultimate end,” which reinforces the impression of a legal judgment and not only immediate rescue.

Rabba’s Interpretation: Danger to Life as the Basis of the Permission

The text brings Rabba in Bava Kamma, who explains the rationale of “tunneling in” by saying that there is a presumption that a person does not restrain himself regarding his property, and the thief assumes that if the homeowner stands against him he will kill him, and therefore, “if someone comes to kill you, rise early to kill him first.” The text notes that the Talmudic text says that if it is his father tunneling in, where he certainly would not kill him, it is forbidden to kill him, and from here it follows that according to the Talmudic interpretation there is no permission to kill solely to save property.

Indications That the Topic Is Not a Standard Pursuer Case

The text points out that the wording “if someone comes to kill you, rise early to kill him first” is not identical to the formulation of “pursuer,” and that later the phrase “this teaches us that he is a pursuer” appears, suggesting a novelty. It notes that the Talmudic text brings a verse to teach that “and he is struck” means by any person, even though in an ordinary pursuer case it is obvious that anyone may save the pursued, and that even the derivation of the permission to kill him on the Sabbath requires a verse, although preservation of life overrides the Sabbath. It adds that the baraita says, “and he dies — by any death by which you can put him to death,” and the need for such a derivation appears to reflect a structure not matching simple self-defense.

The Main Claim: In Practice, the Permission Stems from Defense of Property

The text presents an approach according to which the burglar who tunnels in is not a classic pursuer, because the pursued person could have avoided the confrontation by refraining from defending his property, and nevertheless Jewish law permits him to kill immediately on the basis of a future concern. It argues that the concern for life is a consequence of the homeowner’s right to defend his property, and therefore the driving force behind the permission is defense of property, while the threat to life arises because the thief is expected to react to the loss of the property. The text uses this to explain why a source is required for the permission applying to “any person,” since the homeowner himself might waive his property and avoid the threat, and nevertheless others are permitted to intervene.

Why Danger to Life Is Needed, and a Proposed Explanation from the Tur

The text presents the possibility that attaching the permission to danger to life is meant to prevent cheapening human life and to avoid permitting “wild” killing, and therefore it is allowed only when there is a presumption that the thief will kill if he encounters resistance. It quotes the wording of the Tur, which establishes a rule that “every person is presumed to fall under this rule and one may kill him” unless it is known that the thief loves the owner of the property and would not kill him, and emphasizes that this differs from the law of the pursuer in that here one must know with certainty that he is not a pursuer in order not to kill him. The text suggests another possibility: that the assumption is that in cases without threat to life the theft can be prevented without killing, and therefore only when resistance is expected to escalate into danger to life does the permission apply.

“There Is No Bloodguilt for Him” as a Right and Not an Obligation

The text interprets “there is no bloodguilt for him” as granting permission and not imposing an obligation, unlike the law of the pursuer, where there is a commandment and obligation to save. It states that with a burglar who tunnels in one may choose to forgo the property and avoid the confrontation, but the Torah permits defending the property even at the cost of the thief’s life, and therefore “there is no bloodguilt for him” means that the thief loses the legal protection of his life in this context. The text concludes that the discussion requires getting into further details, which will continue next time.

Full Transcript

[Rabbi Michael Abraham] Okay, so until now I’ve basically tried to sketch the general picture, and I also gave examples to sharpen the different points within that general picture. The claim was that we have two principles facing one another. One principle is that a person cannot save himself through another person’s life — that’s when there’s a third party who is not involved. Opposing that is the law of the pursuer. Meaning, if the person I need to kill in order to save myself is the one threatening me, then he is not a third party; he is part of the situation that created the situation. Then I’m allowed, or even commanded, to kill the pursuer in order to save the pursued. Anyone is allowed to do that, not just me. To kill the… obligated. Obligated. Obligated to kill the pursuer in order to save the pursued. I said that these two principles seem, at least on the face of it, to contradict one another, and we explained in several ways why they do not. I talked about the punitive dimension that exists in the law of the pursuer — that basically he is about to kill, so in any case he would incur the death penalty; there is no point in waiting until he actually kills and thereby losing another life. So in effect we punish him already at this stage. That’s the basic point: these two principles facing one another. I said that many of the dilemmas basically require us to decide whether we are on this side of the equation or that side of the equation. Meaning: is the person we are harming an uninvolved party, in which case it is forbidden, because a person may not save himself through another person’s life? Or is the person we are harming the one threatening us, in which case the law of the pursuer applies? Very often the dilemma revolves around exactly that issue, because in practical cases it’s not always so simple to determine who belongs on which side of the equation. We saw a few examples, and we’ll see more examples like that. But beyond that, I said that this picture is too dichotomous. It’s really not binary, not simply yes or no. There are different levels of threat. We talked about Maimonides’ category of “like a pursuer,” where the fetus endangers its mother. It’s not really a pursuer in the full sense, but on the other hand it’s not in the same position as the mother either. After all, the danger to her life is indeed because of it. And therefore there is what Maimonides calls “like a pursuer.” And similarly we talked about doubt in the topic of the kites from Gaza. We discussed the situation where there is doubtful pursuit — meaning, people are doing something where in most cases no damage will happen, not damage but death, but it could happen. So now the question is whether that justifies…

[Speaker C] So here too, there’s intent not to kill?

[Rabbi Michael Abraham] No. We said — we talked about this — that a minor, for example, if he is a pursuer, we kill him. It’s a dispute in the Talmudic text, but according to Jewish law we kill him even though a minor has no understanding. A minor and an incompetent person. So there is no intent here; we don’t attribute intentions to a minor. The minor does things because that’s what he does; he isn’t responsible for his actions. And nevertheless the law of the pursuer applies. The point is not intent. That’s an important point — I emphasized it. The point is the question of how much pursuit there is here. What is the degree of threat? It’s not a question of intent but a question of whether you really occupy the position of a pursuer or not. In the case of doubtful pursuit, there is complete intent. Whoever flies these kites has complete intent — he just probably won’t succeed. So if he won’t succeed, then we have some kind of partial pursuit, or pursuit that is not full. The fetus, by contrast, has no intention whatsoever, but on the other hand it also is not really performing an act of pursuit. “From Heaven they are pursuing him,” as the Talmudic text says — they put him there. Not only did they put him there; the mother put him there. Meaning, in the end, who is to blame for there being a fetus in her womb? The couple — they are the ones who made it. So why are you trying to pin the blame on it? That’s true, but in the current situation it is the one threatening the mother. That’s unlike the case of saving oneself through another person’s life, where we’re talking about a person who is not threatening me in any way at all; I can only save myself if I harm him, but prior to that stage he is not threatening me at all. So there there is no pursuit whatsoever. It’s not just a question of blame or lack of blame. But then I said there are different levels of pursuit, and there are also different levels of life-value. We talked, for example, about the fetus as having a partial life-value. Most halakhic decisors are not willing to make distinctions that depend on life-value — say, old versus young, sick versus healthy, things of that sort — that doesn’t play a role in that sense. Meaning, you’re not allowed to kill a sick person in order to save a healthy one, or an old person in order to save a young one who has more years left to live. And “youth is a passing defect,” as Rabbi Maimon said. And that continuum of life-values also basically does not play a role. If you are in the category of “a person may not save himself through another person’s life,” then no matter what the life-value is, you can’t do it. If you are on the side of the pursuer, then no matter what the life-value is, you can — in fact you must — do it. So where does it come in? I said that sometimes there’s an interplay between these two axes. And when there is partial pursuit, and the life-value is also not full, then you can start talking. As Maimonides says regarding “like a pursuer.” The fetus is not really a pursuer — that’s partial pursuit. On the other hand, the fetus’s life-value is also not complete. In that situation, says Maimonides, we combine the two reasons. There is partial pursuit here, but the mother also has an advantage in terms of life-value because she is a complete human being. Therefore we can kill, and that’s why I said that sometimes there are situations in which two aspects combine. Another example I gave was again the topic of the kites. Because there too, I don’t have proofs from there — rather, I showed that this is simply how people think. And I tried to explain what that perception is based on. This argument I quoted between Gallant and Bennett — Gallant said, what is this, these are children, how can you kill them? What do you want from them? Now on the face of it, that’s strange. Even a fetus has the law of a pursuer. If a child takes a gun and starts shooting, no one would deny that you need to kill the child. So what happened here? It’s obvious to everyone that the pursuit here is partial pursuit. Meaning, if that child were aiming a rifle and going to kill someone, it wouldn’t matter that he’s a child — obviously you kill him. But he’s flying a kite, and there’s some chance that a person will be harmed, that human life will be harmed. But in most cases — the fact is that until now it hasn’t happened, and there have already been I don’t know how many, thousands of these. So the danger is really a small danger. And still, if this were an adult, then there’d be no problem shooting him. The fact that you are endangering my life — even a small risk is enough; I don’t have to take risks. Don’t create that risk. If you create that risk, bear the consequences. But that’s a claim you can direct at an adult. Because an adult can be told: listen, you want me to protect your life when you are in fact endangering my life just because the risk is small? I’m not willing to take those risks. Don’t create this equation and then get hurt. You created the equation — bear the consequences, even if the risk is a small risk. But you can’t say that about a child. The child didn’t create anything here; he didn’t think; he has no understanding. So there, if the risk is clear, then the law of the pursuer still applies. But where the risk is not full and the blame is not full, it may be that there is some interplay that combines.

[Speaker B] So let’s say here it’s a pursuer of the public, not a pursuer of an individual, and there’s another stringency regarding a pursuer.

[Rabbi Michael Abraham] Regarding the public, right, in principle you’re correct, and we’ll get to that later. Right now I’m talking about, say, one individual flying a kite. Fine? Just for the sake of narrowing it down.

[Speaker B] What you’re saying is that if adults were using these kites, it would be permitted to kill them? Yes. What about a driver on the road in the south — can I kill him?

[Rabbi Michael Abraham] Possibly, if he’s endangering life, yes.

[Speaker B] No, a very small risk that he harms life.

[Rabbi Michael Abraham] It may be yes. Yes.

[Speaker D] Are you speaking philosophically or in terms of Jewish law? Because in Jewish law a minor is under 13. But the guys in reality are over 13.

[Rabbi Michael Abraham] No, with a Noahide — if you’re talking about a Noahide — it’s not 13. The Rosh and the Chatam Sofer write that there are no fixed measures for a Noahide, because the measures are a law given to Moses at Sinai. So who is a minor? Someone who lacks understanding. You have to assess whether this minor understands or doesn’t understand. By the way, someone once talked to me about this already…

[Speaker C] And I said that under those laws you can’t see the one creating the danger as a pursuer. That could also be.

[Rabbi Michael Abraham] Yes, I don’t want to get into the details of the cases right now. For me, I brought it as an example of considerations that combine partial pursuit with partial life-value or partial blame. And I said that the two extreme cases are simple, with no distinctions and nothing of the sort. But when we are in the middle of the axis, suddenly the dimension of blame arises. We said that in principle blame is not relevant in pursuit, because after all even without blame we kill the pursuer. But the fact is that blame exists, because we exempt the pursuer from payment for vessels he broke. So you see there is some dimension here of punishment, of blame. Where does that play a role? So I suggested that it can play a role in a case where the pursuit itself is partial or doubtful pursuit. All right? So the picture begins from a kind of dichotomy of two very clear sides with no distinctions whatsoever, but in life things are often more complex, and you need to combine considerations from both sides.

[Speaker E] I think that in discourse — even in legal discourse — there is the issue of proportionality. This whole topic of partial pursuit — he brought up the driver. Fine, someone smoking next to me, okay? There’s a possibility that he’ll cause me… what’s the proportionality here of the partial pursuit?

[Rabbi Michael Abraham] And I’ll tell you why also in the context of Gaza — also in the context of Gaza — obviously I do not mean that everyone who has a weapon should go there and start killing kite-flyers. There are institutions that are supposed to decide this. No, that’s an important point, it’s not…

[Speaker E] No, but here you’re raising it to practical Jewish law.

[Rabbi Michael Abraham] No, no, not practically.

[Rabbi Michael Abraham] If I’m personally threatened, then yes, I claim that one can kill. If I’m personally threatened? Yes. No, that’s what I asked you. Not personally. Rabbi Ben Zion Abba Shaul and partial pursuit. I brought you a responsum of Rabbi Ben Zion Abba Shaul — they asked him about leavened food on Passover even in the slightest amount, right? He says… They asked him whether one may drink water from the Kinneret. After all, there’s some issue because someone threw a slice of bread in there. Okay? A gentile fisherman… well, to the credit of the Jewish people, all right? So he threw there… they threw. Or they even threw it before Passover, yes, before Passover. Is it forbidden to drink water from the Kinneret? So the truth is, I know many people who actually don’t drink it — they put cloth on the faucet to filter the water. So he says, look, even “the slightest amount” has a measure. That’s Rabbi Ben Zion Abba Shaul’s responsum. Meaning: true, leavened food on Passover is forbidden in the slightest amount, but there is also such a thing as not even the slightest amount. Now where exactly the line is — I don’t have a line. I don’t know where the line is. Someone smoking a cigarette next to me is not partial pursuit; it’s not pursuit. Fine, so maybe in another twenty years…

[Speaker E] it will cause damage and so on, but I mean something else. Here I’m even stricter with you. In your example of the kites, no one died from it.

[Rabbi Michael Abraham] No, so that’s why I’m saying — with the kites it really isn’t clear why no one died from it. In principle the risk that it creates is not so far-fetched. To property it certainly causes damage, and we’ll see later, by the way, that damage to property can also justify the law of the pursuer. What?

[Speaker B] There were attempts to kill… yes. In any case, so I’m saying again, I don’t have

[Rabbi Michael Abraham] a simple answer or a simple criterion for every situation. I’m trying to show the system of considerations. And where the threat is not focused on me — and again, just to make it clear — where the threat is not focused on me, like the kites or like someone driving dangerously on the road, then keep your distance from him. But if he really is threatening you personally right now — you — then yes indeed. But if he is threatening someone else, then that’s again the law of the pursuer. Yes, correct. No, even someone concrete. I’m talking about someone driving wildly — who knows, maybe someone here will get hurt. That’s too remote. I don’t know how to give a clear criterion, but that’s already too remote. That’s just common sense. Whenever there is a threat to a concrete person, even if it isn’t me, you’re right — the law of the pursuer applies in any case. Although of course if he’s threatening someone else, that other person can say, look, the prohibition of murder matters to me, I’m willing to take the risk to my life. There is room for that consideration too. But if I personally, for example, am unwilling to take the risk and he is threatening me and I want to kill him, then yes indeed. If he’s doing it through reckless driving, yes? Clearly, deliberately, then yes.

[Speaker D] He’s drunk, driving drunk.

[Rabbi Michael Abraham] Okay, so that too is probably considered deliberate, even legally, because he put himself into that situation when he drank. Now maybe at this point he’s already under compulsion, but he created the situation. Even legally they see the drunk driver as responsible. All right, so I’m saying: that’s the system of considerations. Now I want to move on toward property. Property has already come up in several places, and with the kites too there’s the issue of damage to property. Because I talked about — let me again anticipate something I already mentioned, or actually two things. One thing is Rashi’s approach in Bava Kamma, which I mentioned, and I said that even the other medieval authorities (Rishonim) who disagree with him, at least some of them, are not really openly opposing him. Rashi says that a person cannot save himself even through another person’s property, not only through another person’s life. And that is the straightforward meaning of the Talmudic text, not just Rashi. The other medieval authorities, because of the great difficulty, force the reading of the Talmudic text, but the plain meaning of the Talmudic text is: a person does not save himself through another person’s property.

[Speaker D] That’s what the Talmudic text says. Nimukei Yosef there. Yes, yes.

[Rabbi Michael Abraham] You simply can’t take it. Except for a king. What? Except for a king, right. A king may breach fences. So again, how do you understand such a thing?

[Speaker B] Where is that in Bava Kamma?

[Rabbi Michael Abraham] Page 60b. How do you understand such a thing? What’s going on? “Be killed rather than transgress” with regard to theft, as Tosafot asks against Rashi? So I explained there, based on what Rabbi Shimon Shkop says, that the claim is that this is not “be killed rather than transgress” concerning theft. Theft is overridden by preserving life, like all prohibitions in the Torah except the three severe ones. But what forbids you from taking someone else’s property is not the prohibition of theft; it is the fact that it belongs to him. It is simply his. When I talk about prohibitions, that concerns calculations I make. I make calculations about what is permitted to me and what is forbidden to me, overrides and considerations and so forth. With someone else’s property, it’s not a question of prohibitions at all. You are not the one who can make the decision, whether there is a prohibition or not. In the end, the decision about the property belongs to the owner of the property. And therefore, even if taking it is totally justified, and there is no prohibition of theft, and there is nothing of the sort, you still cannot take it. You cannot take it because it is his. I brought Rabbi Shimon Shkop, who basically says that unlike the rest of the Torah prohibitions — for example, pork is forbidden because the Torah forbade it — in theft, the Torah forbade it because it is forbidden to take it; it’s not forbidden to take it because the Torah forbade it. The Torah forbade it because it is forbidden to take it, because it is someone else’s property. One of the implications is that even a gentile’s property carries the same prohibition, despite the dispute among the medieval authorities (Rishonim) whether there is a Torah-level prohibition of theft from a gentile. Rabbi Shimon Shkop says that is irrelevant; it doesn’t matter, because on the legal plane — what he calls the legal plane, the doctrine of laws — on the legal plane, since the property belongs to the gentile, then obviously you cannot take it. That is a Torah-level prohibition; reasoning is like Torah law, even though there is no explicit “you shall not steal.”

[Speaker B] So why is it prohibited?

[Rabbi Michael Abraham] Because it’s his.

[Speaker B] It has nothing to do with “you shall not steal.” So then what are the implications of “it is agreeable to him”?

[Rabbi Michael Abraham] What do you mean, “it is agreeable to him”?

[Speaker B] So if I have a book in the synagogue, then okay — it’s agreeable to me that people should read that book, right?

[Rabbi Michael Abraham] Okay, no problem. There are presumptions: “it is agreeable to a person that a commandment be performed with his property.” So fine, you can take it.

[Speaker B] Great. So maybe it’s agreeable to him that he save himself using my property?

[Rabbi Michael Abraham] No problem, take it. But if the person is standing here and says, “No, I’m not willing,” are you allowed to take it? Then it’s theft. Yes. Meaning, if you have reason to assume — and I think a reasonable person would agree that I take his property, especially if afterward I’m going to return it to him — not only that, he is actually obligated to do that from a halakhic standpoint. Okay? Then in practice you can take the property. Even Rashi would say that. In practice you can take the property because it is not theft, not because theft is permitted. Because the person agrees, so it isn’t theft. But if he is standing here and says, “I do not agree,” then no. What does that mean? It means, now in a more extreme form, what I said before.

[Speaker B] What? It’s forbidden through him?

[Rabbi Michael Abraham] No, this is a case of… he’s not a pursuer; this is the other situation. A pursuer is someone who comes out to threaten me. Here he isn’t threatening; he can save himself if he harms you. Again, “your life takes precedence over the life of your fellow” — that’s the whole distinction I started with. The difference between saving oneself through another person’s life and the law of the pursuer is exactly the question of… say they tell me to shoot you or else they’ll kill me. Are you a pursuer? After all, if I shoot you, I’ll save myself. You’re a pursuer, no? So where is this distinction? There is a difference between whether, when I harm you, I do so in order to save myself, or whether you are the threat — in which case clearly I need to harm you in order to remove the threat. Those are two entirely different situations. And in this case we’re talking about the property of a third party; he is not pursuing me.

[Speaker E] We also spoke about Maimonides in the laws of one who injures and damages, where there is property that is pursuing, and they throw it into the sea.

[Rabbi Michael Abraham] The claim I actually want to show from here — at least in Rashi’s view and those medieval authorities (Rishonim) who in principle agree with him, among the Ashkenazic schools and so on — is that the prohibition on harming a third party in order to save myself is so strong and severe that it is not only harm to life; it is also harm to property. I showed this on both sides. Meaning, the law of the pursuer also applies to property that is pursuing me, and today we’ll see that even if you are pursuing my property, you are considered a pursuer and I can kill you. We’ll see that in a moment. But at least that’s what will be argued. And here I’m saying the same thing about the rule that one may not save oneself through another person’s life — on that side too. Because I said that in both extreme situations we make no distinctions based on the value of the thing being harmed — whether the value of the life or the value of the thing I’m harming. If I’m in one of these two extreme situations, the law is absolute. If you’re pursuing me, I may harm you no matter what. If you’re not pursuing me but are instead a third party, I may not harm you in any way whatsoever, including your property, even if I die. Meaning, I’m trying to sharpen here the force of these extreme laws — that on both extreme sides there is no possibility of making distinctions. The distinctions begin when we are in the middle — when there is pursuit plus partial life-value and all the other things we mentioned. And what about the burglar who tunnels in?

[Speaker B] We’re getting to him today. I want to talk about him.

[Rabbi Michael Abraham] So that’s the first point: basically the claim is that even damage to someone else’s property is something I may not do if that property belongs to a third party. The other side of the coin, I would expect, is that if someone threatens my property, he is basically a pursuer. Now true, he’s only pursuing property, not life. Does that justify killing him? He’s only pursuing property. My answer is yes.

[Speaker B] But according to the reasoning that you’re allowed to kill him because one way or another he has already incurred the death penalty, that doesn’t apply…

[Rabbi Michael Abraham] That reasoning doesn’t exist. It doesn’t exist even in the case of a minor. That’s why I said that blame is not required in order to apply the law of the pursuer. Blame plays a role only where there is partial pursuit; then considerations of blame can get mixed in. That was exactly my point — because we see in the Talmudic text that the concept of… if he’s a minor, or if he’s someone who isn’t fully threatening my property but only partially, then maybe it really doesn’t…

[Speaker D] In his case, since the harm is partial, then seemingly it should be forbidden. He said that in property matters he hasn’t incurred death for stealing. Correct. And in addition, the harm of the pursuit itself is only partial harm.

[Rabbi Michael Abraham] No, so I claim not. I claim not. It can indeed come into play where the pursuit itself is only partial pursuit. But if you come deliberately and clearly to harm my property, then you have the law of a pursuer. Even if someone else — is he also allowed to kill that person? Yes, but we’ll get to that in a moment.

[Speaker B] Is this connected to the weasel and the pit? Is it connected to the law of the weasel and the pit?

[Rabbi Michael Abraham] Yes, yes, yes — in a moment

[Speaker B] we’ll see, there’s some connection.

[Rabbi Michael Abraham] Fine, you…

[Speaker D] are defining ownership of assets as a moral value.

[Speaker B] No, again and again…

[Rabbi Michael Abraham] It’s not a value, it’s an asset. When I spoke about freedom and liberty, I defined it that way. Ownership is not a value; it is an asset. If you harm my asset, I have a right to defend myself.

[Speaker D] Yes, but you’re putting it on a very high level as a right.

[Rabbi Michael Abraham] Forget value. It’s not that there is some great value in owning money. There is a right of self-defense. We talked about this when we talked about freedom and liberty — people think freedom is a value because we are very reluctant to infringe on someone else’s freedom. And I explained there that no, freedom is an asset, not a value. A person is in a state of freedom, and he has a right to be in that state. Why should you take it from him? And therefore he has a right to defend himself. But the right to defend oneself does not necessarily indicate that we are dealing with a value. It’s mine, and you are coming deliberately and want to harm my right, so I have a right to defend myself.

[Speaker D] The question is whether all rights are at the same level of importance. No, no — Rav Kook’s claim here raises the right to tangible property to an almost…

[Rabbi Michael Abraham] And I explained that this is not a question of value-intensity — that’s exactly the point, because we are not dealing here with a value. It’s a question of right. Meaning, there is some kind of wall. When you enter my territory, only I make decisions. Now it may be that my decisions are wicked and the Holy One, blessed be He, will settle accounts with me because I didn’t give you the money so you could be saved — I should have done that — but the decision is mine, just as I need to give money in charity to a poor person. Is the poor person allowed to take the money from me? No. Even though I am obligated to give it to him, there is a commandment and a prohibition not to refrain. True. But still, the decision is my decision, and the Holy One, blessed be He, will settle accounts with me. I also brought another example, of Zimri, if you remember. The Talmudic text says that if Zimri had turned around and killed Pinchas, he would not have been executed for it. So the later authorities (Acharonim) ask why. After all, he could simply stop sinning, and then Pinchas would not harm him, and everything would be fine. The permission to kill a pursuer exists only where you can’t manage otherwise. If you can save yourself without killing the pursuer, then there is no permission to kill the pursuer. So here Zimri could have stopped sinning, Pinchas would not have killed him, and everything would be fine. Right — but he isn’t obligated. He isn’t obligated to stop sinning? What do you mean he isn’t obligated? Of course he is — it’s a sin. Right, but he isn’t obligated to do that to the pursuer. I owe that to the Holy One, blessed be He, and He will settle accounts with me; I am in the wrong, all of that is true. But you can’t threaten me because of that. I don’t owe that to you. I’ll settle with the Holy One, blessed be He, over the…

[Speaker B] Wait, wait — and if he had been worshipping idols and he killed her? What? If he had been worshipping idols and he killed her? Then the sin would be less severe than what’s happening here.

[Rabbi Michael Abraham] Ah, the question is whether I can…

[Speaker B] But there it’s not the law of a pursuer, so therefore…

[Rabbi Michael Abraham] I don’t know whether that category is relevant at all. From Pinchas’s side with respect to them, they are not pursuing Pinchas. The fact that Pinchas is allowed to kill them is not because of the law of the pursuer. The fact that Zimri is allowed to kill Pinchas is because of the law of the pursuer.

[Speaker B] If Pinchas isn’t threatening him, then he’s forbidden to kill him? No, because the law of the pursuer…

[Rabbi Michael Abraham] If Pinchas hadn’t threatened him, then it would have been forbidden for him. Okay, so what I want to show here is that the extreme cases—really, both extreme cases—the law in them is absolute law. Meaning, there are no distinctions. Not only are there no distinctions in the value of life—fetus, person, sick, healthy, old, young—but it even extends to property. Meaning, any violation of any right of mine, whether it’s my life, my property, or whatever it may be—if we’re at one of the two extremes, then the same law applies to any pursuer. The interplay begins in the middle. We’re in the middle, where there are intermediate situations. Why am I saying this? Because now we really would have expected—I brought maybe one more example just to sharpen it—someone threatens that I give him a shekel, otherwise he kills me. I mentioned this example. And I said I have no doubt that I’m allowed to kill him, the one threatening me, even though I could give him a shekel and everything would be fine. Meaning, what’s the justification for killing a person in order to save a shekel? The answer is that I’m not killing him in order to save a shekel; I’m killing him in order to save myself. I’m not willing to give him a shekel. Why should I give him one? I don’t want to give him one.

[Speaker D] But you don’t know

[Rabbi Michael Abraham] that he won’t kill you after the shekel? No—let’s say I do know, it doesn’t matter for the sake of the discussion, let’s say I know. So I’m not—I don’t want to give him a shekel. Now he says, “I’ll kill you if you don’t give me a shekel,” he’s threatening me, so I kill him in self-defense. But understand that in the end I killed him over the shekel, because I could have given him the shekel and solved the problem. So there are situations where, even though I can solve the problem by giving money, I’m not obligated to do so—it’s my right. Once I have a right, it’s absolute, meaning even to the point of killing. Why am I saying this? Because we would expect that in the context of someone who comes in through a tunnel, or killing a thief, the law would be the same. If a thief comes, as I said before, if a thief comes and threatens my property, since he is a pursuer, this is not “saving oneself through another’s money,” this is a pursuer—so he is pursuing my property. Once that belongs to the pole of pursuer, you can harm him, you can kill him in order to save the property. Before I get into the topic of someone who comes in through a tunnel, which really deals with this issue, I’ll just give some introduction. Yes, you surely remember the story of Shai Dromi, with the lone farms in the Negev, where several Bedouin thieves broke in, with weapons, with weapons? Okay, several thieves broke in there and he shot them, and killed one of them, I think, or something like that.

[Speaker B] In the back, when they were on their way out—what? In the back, when they were on their way out.

[Rabbi Michael Abraham] Could be—I don’t even remember the case anymore—but it doesn’t matter. A discussion arose there whether it’s permitted to shoot such a thief. If it’s already on the way out, that may be a more problematic situation, although they’re still taking my property, but in the end it’s the same situation. So a discussion came up there whether he was allowed—whether he had been allowed—to do that. I think he went to jail in the end. No, no, he was acquitted. I think he was found guilty in court; I think there was a pardon at the end, I don’t remember exactly how it ended. The “Shai Dromi Law” is named after him. Okay, in any case there was some debate around this issue. I’ll tell you: my basic feeling was that obviously—what do you mean? Anyone who enters my territory, I kill him. That’s my personal feeling. I don’t understand the discussion at all. Meaning, someone who enters my territory deliberately and knows he’s entering, and he takes my property—I kill him. And between us, if you couldn’t stop it any other way? If I can’t stop it any other way, I see no problem at all.

[Speaker C] Even when it’s clear he’s not going to kill you?

[Rabbi Michael Abraham] Wait, wait—I’m getting to the tunnel case. This is an introduction to the topic of someone who comes in through a tunnel.

[Speaker C] Even if it’s clear he’s not going to kill you?

[Rabbi Michael Abraham] Yes, yes—even if it’s clear. I’m saying, that’s my intuition.

[Speaker C] In the tunnel case there’s a chance.

[Rabbi Michael Abraham] Wait—with the tunnel case, I’m—that’s the introduction to the law of someone who comes in through a tunnel; I’m getting there. I’m just giving an introduction or motivation. I’m describing my intuition—I haven’t yet said anything actual. My initial intuition when I hear something like that is “cold blood, cold blood,” as they say. Meaning, if you enter my territory, I kill you. That’s it. I don’t intend—again, what does “I kill you” mean? If I can stop it without that, okay. If I can catch you and take you to the police, fine. If I can’t. “Can’t” not in the sense that you’ll kill me, but in the sense that you’ll escape with my property and I won’t manage to save it—then I kill you. I have no problem with that. Meaning, in principle, the American approach that says: you’re on my property, I shoot you. It’s not a question. And that’s what I would expect in light of the description I’ve given until now. Because in light of the description I’ve given until now, that’s what comes out, right? If a person threatens even property, then in the end if he has the status of a pursuer—he’s on that side of the equation—you can harm him, no matter what he’s threatening: this kind of life, that kind of life, or even property.

[Speaker B] If in my view he’s threatening—you don’t know he’s threatening.

[Rabbi Michael Abraham] Ah, okay, it’s always “in my view.” Who’s going to decide? Who’s there in the situation?

[Speaker F] If you knew there was a chance he’d kill you? No, if it’s ultimate—wait—my initial intuition.

[Rabbi Michael Abraham] What I personally think, regardless of Jewish law and the tunnel case and all those things. That’s my tendency, and I was very irritated by that whole business where they say to him, “Forget it, let them run away even if you can’t save it, let them run away with the property and file a police complaint.” File a police complaint—you can do atonement rituals with that police complaint. Now they say, okay, but it’s still only property, so what’s the justification for killing a person in order to save property? Like I said before with the shekel, and I make the same claim here too, and I want to examine the tunnel-case topic through that lens. Meaning, the intuition—I’m putting it on the table so the discussion will be straightforward—my initial intuition is American. Meaning, whoever is on my property, I kill him.

[Speaker B] As you described it until now, that’s Jewish law, not intuition.

[Rabbi Michael Abraham] I haven’t described it yet—what do you mean, in Jewish law?

[Speaker B] Say with the shekel—if someone comes to damage—if someone comes to harm my property, that’s a pursuer.

[Rabbi Michael Abraham] With regard to the shekel, you can say there, what about my life? So there’s the background here that you could…

[Speaker B] That’s only in the context of saving oneself.

[Rabbi Michael Abraham] Yes, that’s why I say: I would expect it to be symmetrical. But now when I come to check the Jewish law on the other side, it turns out it isn’t so symmetrical, as many of you noted, okay? So I want to examine that, and I want to claim that it actually is symmetrical.

[Speaker F] There was a case in the United States many years ago, where someone had a house there in the summer—he didn’t live there, but sometimes he visited there—and every time people broke into his house, so he set up a rifle facing the door: open the door, the rifle fires. And he killed someone. And then I think he went to prison. He wasn’t the pursuer, and they were there as burglars, and he—it wasn’t—he wasn’t even in the house when the rifle fired.

[Rabbi Michael Abraham] Yes, that was my son—he has a suggestion for how to deal with Gaza,

[Speaker F] he

[Rabbi Michael Abraham] says: who-is-next-dot-com. Meaning, set up a site, who-is-next-dot-com, where you announce that the moment a rocket is fired, there’s an automatic mechanism: once a rocket is fired, this house will be destroyed. That’s it. Now decide what you want. I’m not doing anything; I didn’t fire. Whoever fired the rocket did it, not me.

[Speaker D] With the children on the roof of that house?

[Rabbi Michael Abraham] No, all the cameras in the world—put them there, I don’t care, let there be all the cameras in the world—but the one who killed him is the one who fired the rocket. The one who launched the rocket automatically activated the… Don’t come with complaints to me; I didn’t do anything. It’s like the rifle—it’s exactly the same idea. Okay, what about that guy?

[Speaker F] Well, I think

[Rabbi Michael Abraham] that he went to prison.

[Speaker F] He went to prison? I think.

[Rabbi Michael Abraham] In any case, this really brings us to the topic of someone who comes in through a tunnel, and there, as several of you already noted, you see that the symmetry is not so complete. Meaning, in the tunnel case, somehow it seems not to be true that you can kill in order to save property. So I want to examine that. I’ll just say in advance: I wrote an article about this in Techumin, on this whole issue of someone who comes in through a tunnel, following the Shai Dromi affair, and there I argued that you can kill in order to defend property. In a moment I’ll explain how this fits with the Talmudic passage. Volume 27 maybe, 8, something—or 27 or 28. There are several of my articles there in a row; I don’t remember exactly which one. And the entire editorial board rebelled—they didn’t agree. Meaning, no one on the editorial staff agreed. “It goes against the passage, it goes against the halakhic decisors, it’s incorrect in my view”—but that’s what they said. And in the end—just as an anecdote—in the end they decided to take it to their presidency, for them to decide. There were three rabbis: Rabbi Shaar Yashuv, of blessed memory by now; Rabbi Lichtenstein, also of blessed memory by now; and who was the third? I don’t remember anymore. Rabbi Yisraeli, who already then I think was of blessed memory. No, no—but two were, two were. So that was their presidency. So I spoke with the editorial coordinator, whom I knew back then, and after some time he told me they had finally decided to publish it with their comments. You can see in my article: at the end there’s also an appendix with the editorial comments and my responses to their comments below, in their footnotes and so on. In the end they decided that these presidents apparently don’t even remember they’re presidents of Techumin. They were appointed at some point, so they put their names there just to decorate things a bit, but there was no point going to them.

[Speaker B] Rabbi Lichtenstein didn’t agree with you? They didn’t go to him at all.

[Rabbi Michael Abraham] That’s at least how I understood it from the editorial coordinator. Why should you decide? Go to them, let them say what they think. Again, it’s not so much a question of whether I’m right, but whether what I’m saying is a well-founded position. You can disagree, but that doesn’t mean “don’t publish.” I also think I’m right, of course, but that’s a different discussion. Okay, so that’s just the framework. Let’s get into the substance. The Torah says: “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 he 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 make restitution. If he has nothing, then he shall be sold for his theft. If the theft is indeed found alive in his hand, whether ox, donkey, or sheep, he shall pay double.” That’s the passage. Within it there is the law of one who comes in through a tunnel, yes: “If the thief is found breaking in, and he is struck and dies, there is no bloodguilt for him.” Already the expression is interesting: what does “there is no bloodguilt for him” mean? “There is no bloodguilt for him” means the person who killed him is not liable to death.

[Speaker D] Kind of after the fact.

[Rabbi Michael Abraham] Yes, exactly. A sort of after-the-fact formulation. “Kill him”—what, is there an obligation to kill him? No: “there is no bloodguilt for him.” What does “there is no bloodguilt for him” mean? And more than that: in the context of the verses, the whole context is the sanctions imposed on the thief, right? He pays double, he pays fourfold and fivefold, he is sold for his theft if he cannot pay. That’s all about what is done to the thief for his theft. What is the law of one who comes in through a tunnel doing here? The tunnel case is not recompense to the thief; it’s not a punishment or sanction on the thief. The one who comes in through a tunnel is, at that very moment, a danger—soon we’ll see this point, I’m getting ahead of myself—but at that moment of danger you’re allowed to defend yourself, it’s the law of a pursuer. What is that doing here in the passage? What does it have to do with the laws of theft? In Maimonides too, by the way, the law of one who comes in through a tunnel appears in the Laws of Theft, not in the Laws of Murderer and Preservation of Life, in the Laws of Theft. All these things are basically hinting—and again, for now on the level of the Written Torah, yes?—they hint that in the case of one who comes in through a tunnel there is some sort of recompense for the theft, or a punitive dimension, and not merely self-defense lest he kill me. At least that’s how it appears at first glance. Even the Mishnah in Sanhedrin, in the chapter on the wayward and rebellious son, brings the law of one who comes in through a tunnel together with the wayward and rebellious son, because both are judged on account of their end. But “judged on account of their end” does not mean—in the case of the wayward and rebellious son, it is not the law of a pursuer, that in the end you will kill and therefore they kill you. It’s prevention of criminality. That’s why Rashi also writes about this that “we save him through his own life”—the child—we save him from his criminality. So if we put those two in the same basket, the one who comes in through a tunnel and the rebellious son, and they are “judged”—incidentally, that very phrase, “judged on account of their end”—that means there is some punitive dimension here. They are actually judging him, just on account of his end. Okay?

[Speaker D] But you said that in the law of a pursuer there’s a punitive dimension too, so that doesn’t prove anything.

[Rabbi Michael Abraham] I didn’t understand. You argued before that in the law of a pursuer it’s because you kill, so there’s a punitive dimension because he’s liable to death, and that’s what Shmuel asked before. But for property there’s no death penalty for that. Fine. So that’s the introduction. For now we’re Americans. But the Talmud says there, on page 72a: Rabba said: What is the reason for the tunnel case? There is a presumption that a person does not restrain himself over his property, and this one says: “If I go, he will stand against me and will 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 and kill him first.” Meaning, Rabba is basically making the familiar translation that you mentioned earlier: if I defend myself, since I can’t help but defend myself, then there is concern that the thief will kill me in order to succeed after all. And since that’s so, he has the law of a pursuer, and I’m allowed to kill him. And Rabba basically inserts into this picture—or empties it of—everything I described until now. He’s basically saying it’s purely the law of a pursuer: because you threaten me, therefore I’m allowed to kill you, and there is no justification for killing in order to defend property, which is what I described before—that the killing is because I want to defend my property. So Rabba says: no, it’s only because of a future concern for mortal danger. And indeed the Talmud says, as you mentioned earlier, that if it’s his father who comes in through a tunnel—which is the Talmud’s example of someone who certainly won’t kill me even if I resist, because he’s my father—then even if he’s in a difficult situation and needs the money and comes to steal from me, still, up to there. Meaning, he won’t kill me, okay? So in that situation I’m indeed forbidden to kill him; that’s what the Talmud says. So you really see that, at least in the Talmud’s interpretation—I’m not even talking about the verses—in the Talmud’s interpretation it appears that there is no permission to kill in order to save property. You may kill where there is mortal danger. By the way, some commentators on the Torah really do write the plain sense of the Talmud, the American approach, on the verses; they say yes, because you threaten me, I’m allowed to kill you. But Jewish law follows the Talmud.

[Speaker B] But between this and that, you were talking very much between this and that. What? Between the father and that.

[Rabbi Michael Abraham] Correct, there are other boundaries there. That’s why a son has the commandment to honor parents, and parents don’t have the commandment to honor children—they don’t need it. They honor them anyway.

[Speaker D] Is there a distinction if I warn the thief in advance—that I warn him?

[Rabbi Michael Abraham] I’ll comment on that later. Fine. Even with a pursuer, by the way, there is a known dispute. If you can warn him, many halakhic decisors say yes, you should warn him, if that will help. That is also how it is ruled in practice in Maimonides. If you can—no, not only if it helps, but if you can warn him. But if by the time you warn him he’ll meanwhile kill the other person, then no. In any case, in the Talmud itself you apparently see not like what I said—that there is no permission to kill a thief in order to save property, only because of concern for life. But I want to claim that this is not so.

[Speaker B] Wait—and this isn’t a lone opinion?

[Rabbi Michael Abraham] No, no, no. This is what appears in the Talmud; no one disputes it, and it is ruled by all the halakhic decisors. I want to bring several questions, or several indications, that the picture is nevertheless not so simple. First indication: the Talmud at the beginning, when it speaks about someone who comes in through a tunnel, doesn’t call him only a… pursuer. It says, “If someone comes to kill you, rise early and kill him first.” And later the Talmud says: this teaches us that he is a pursuer. There’s some phrase there afterward, but the fundamental expression is: “If someone comes to kill you, rise early and kill him first.” Now certainly the idea is the same idea—he comes to kill you, therefore you may kill him, not because of the property. But the different formulation suggests that this is apparently not the ordinary law of a pursuer. Second point: the baraita—the Talmud, no, really the baraita there on page 72b—asks whether another person too is allowed to kill the thief in the tunnel case. And it derives from a verse that yes: “and he is struck”—by any person. Not only the homeowner, but anyone may kill him. Now if this is the law of a pursuer, then what’s the question? In the law of a pursuer it’s obvious that everyone is permitted and obligated to kill the pursuer in order to save the pursued person. If so, why do we need a verse for this? By the way, for the law of a pursuer there is no such verse. For the law of a pursuer itself there is no such verse. Only in the tunnel case…

[Speaker D] No, that’s not proof; it’s just a methodological style in the Talmud to ask a question in order to decide it, not because…

[Rabbi Michael Abraham] But why bring a verse? Why don’t they bring a verse for a pursuer? Because for a pursuer it’s obvious. In the tunnel case he’s also a pursuer, no? So you see that it’s not quite so simple. Now notice: this is the initial assumption. After the verse appears, the verse says yes, anyone can kill him. One could say there was an initial assumption that this is not a pursuer—I still need to explain why. There was an initial assumption that this is not a pursuer; the verse teaches us that he is a pursuer. But after the verse teaches it, then it’s already an ordinary pursuer. But in the initial assumption, and in the very fact that you need a verse—something you didn’t need for a pursuer…

[Speaker D] Maybe this is the source for pursuer too—that…

[Rabbi Michael Abraham] The Talmud never says that anywhere. It doesn’t ask… But it doesn’t ask anything; it doesn’t even ask the question. Here it asks and brings a verse. I would have expected it to say: and the same applies to a pursuer, or that a pursuer is learned from here…

[Speaker B] So what’s the Torah’s novelty in someone who comes in through a tunnel, according to this approach? What? According to this line of thought, what’s the Torah’s novelty in the tunnel case?

[Rabbi Michael Abraham] If it’s a pursuer.

[Speaker B] If it’s a pursuer.

[Rabbi Michael Abraham] It’s the same question. Right. Third point: the Talmud discusses whether it’s permitted for the homeowner himself as well—whether it’s permitted to kill the one who comes in through a tunnel even on the Sabbath. It brings a verse: “there is bloodguilt for him”—whether on a weekday or on the Sabbath. “There is no bloodguilt for him” if the sun has risen upon him—whether on a weekday or on the Sabbath. Why do we need to say that? In the law of a pursuer does anyone say such a thing? No one says that—it’s obvious. In war there was some discussion all the way until the Hasmoneans, yes.

[Speaker C] The difficulty is that he’ll kill—that he will kill. They’re talking about the chance that he… what’s the chance he’ll kill? And then if the chance is high, you’re allowed. No—what high chance? It doesn’t say anywhere if there’s light then he won’t… no, there’s light.

[Rabbi Michael Abraham] The Talmud’s assumption is not Sabbath. Someone who comes in through a tunnel is also by day; it’s not only at night. “If the sun has risen upon him” means when he’s already fled. You can’t punish him; you can prevent the theft. That’s the difference—that’s how the Sages interpret it. Does the law of a pursuer override the Sabbath?

[Speaker B] Obviously. What

[Rabbi Michael Abraham] do you mean? Saving life, yes. So if this is the law of a pursuer, why do I need a verse to teach me that I’m allowed to kill the pursuer on the Sabbath? Again, that’s obvious. And again, this is the initial assumption. And after the verse is brought, then indeed the law is applied also on the Sabbath, and anyone can do it, all like a pursuer. But the fact is that for each such thing a verse is needed. Meaning, at least in the initial assumption, you see this is certainly not self-evident.

[Speaker D] Another point: why do all these support the American version?

[Rabbi Michael Abraham] No, no—we haven’t yet put down the question mark. Another thing: the baraita says, “and dies”—by any death by which you can put him to death. What does that mean? Not only by the sword. You might have thought only by the sword in the tunnel case. Not with a gun. I don’t understand—he’s threatening my life, and I have to fight him in a gentleman’s duel? What kind of thing is that? The Talmud says: like a murderer. There was an initial assumption that just as with a murderer, whose death is by the sword, so too here; the verse teaches us that it is not so. By the way, there are halakhic decisors who indeed say that even with a pursuer—this isn’t stated in the Talmud—but from Maimonides it sounds that way too, that with a pursuer ideally you kill him by the sword. Only if that isn’t possible, then by any means. And again, that is evidence of the punitive dimension in a pursuer. And really it’s the death by sword he would have been liable to if he were to commit murder. But obviously, if not, then in order to save the pursued person you kill him anyway. Now here we need yet another verse. A verse to tell me: by any means, not only by the sword. Again, you see here some punitive dimension, and here it really requires explanation—what is the punitive dimension? After all, he came to steal; there is no death penalty for robbery. So what is going on here? I think the basic difference… it opens up all these distinctions. Let’s think for a moment about the situation. The situation is that a person comes to me, let’s say at night for the sake of discussion, enters my house, armed—or at least I fear he is armed—and starts stealing downstairs. I’m sleeping upstairs. Okay? Now they tell me: you’re allowed to kill him. Why? Because if you resist, then he may kill you, and then he has the law of a pursuer and you may kill him. So don’t resist. Sit quietly, stay upstairs on the second floor, let him take everything. Like they said to Shai Dromi, right? What’s the problem? Let him take what he wants. In the end you’re killing him over property. After all, if you hadn’t resisted, nothing would have happened. There would be no threat to your life and nothing at all. Do you see the similarity to the shekel?

[Speaker D] Not exactly, not exactly, because you say you fear he’s armed. Meaning, the defense of the property itself, pure property, doesn’t necessarily follow from that. If there’s no fear at all and the person comes in wearing a swimsuit.

[Rabbi Michael Abraham] Wait, wait, one second—I’ll get to that. You’re right, I’ll get to it in another minute. So first of all you see here

[Speaker E] that it’s not even armed and not a threat over a shekel—he’s not even supposed to know, by the way, that he’s armed.

[Rabbi Michael Abraham] It’s enough that I fear it.

[Speaker E] No—even if he’s armed over the shekel, he’s already threatening you.

[Rabbi Michael Abraham] No, the Talmud’s conclusion is that in this situation, when you catch a thief tunneling into your home, that is a threat. That is the Talmud’s assumption—an empirical assumption. I’m not arguing here right now over the empirical assumption. Given that assumption, it’s like the shekel. After all, I could have given him the shekel and gotten rid of him. And here too, I can let him steal what he wants, and that’s it; nobody gets hurt and everything is fine. But I want to defend my property—I don’t want to give up my property. Because of that he threatens me—he may threaten me, the Talmud assumes, to kill me—so I defend myself.

[Speaker B] So he becomes a pursuer.

[Rabbi Michael Abraham] Don’t defend yourself, and he won’t be a pursuer.

[Speaker B] Why does he have to be armed in the tunnel case? But in the tunnel case the thief doesn’t need to be armed. The Torah assumes that if a person stands up for his property, then he’ll kill you.

[Rabbi Michael Abraham] That doesn’t mean he has to be. So how will he kill me—what, with his hands? Yes, by strangling, with his hands, fine—but it’s the same thing. It’s the same thing. There has to be danger to my life here.

[Speaker F] Why with his hands? For example, in the Tosefta there’s the tunnel case, and there’s another verse that says, “If someone comes to kill you, rise early and kill him first.”

[Rabbi Michael Abraham] That’s not in the Torah, but in the Talmud.

[Speaker F] But if you don’t

[Rabbi Michael Abraham] Of course, there’s mortal danger here—I mentioned earlier too the case with the father—but I still need to get to that, just a moment. What I basically want to claim is that the basic point that distinguishes the tunnel case from a pursuer is this very point. With a pursuer, when someone threatens me, I have no other way to solve the problem; if I did, then “you can save him by one of his limbs.” Then of course I’m forbidden to kill the pursuer. But here I have the simplest possible way. I don’t even need to do anything—passive non-action is best. Stay asleep quietly, shut your eyes tight, don’t go outside, lock your door, and let him take what he wants. That is basically what they demanded that Shai Dromi do, right? That’s what they demanded. Shut your eyes, be quiet, you can’t do anything, lock the door and let them go, and afterward file a complaint with the police. That’s what they said. The Torah says no; Jewish law says no. You may defend yourself, you may defend yourself, and true, that may bring him to threaten your life, so kill him. Now more than that—we’re already making a leap—you don’t even need to first defend yourself; kill him immediately. And the Talmud doesn’t say: defend yourself, and then if he threatens you, kill him. The Talmud doesn’t say that. The Talmud says you may kill him. Why? Because if you try to defend yourself, there is concern that he will kill you. Meaning, this entire hypothetical process, in practice you never actually go through it—it remains hypothetical. In the end, you kill him immediately. And all this because of this strange calculus that doesn’t get off the ground. You can just stay in your room, and that’s it, and nothing will happen.

[Speaker B] In Shai Dromi’s case they already had the property, because they were already leaving.

[Rabbi Michael Abraham] Fine, that doesn’t matter at the moment. I’m not getting into the specific details of Shai Dromi right now, but the principled discussion. A thief entered my house. I think it’s still the same even if they already had the property—it makes no difference. The question is whether I’m doing this as a punitive act or whether I’m preventing the theft. If I prevent the theft by the fact that they take the property and run, and I kill them—that too is preventing the theft. Punishment would be going to his house afterward without managing to recover my property and killing him—or I don’t know, beating him, I’m not sure exactly what. That’s punishment. In any case, the claim is that this is the basic difference. What does that actually mean? It means I look at it like the question of the shekel. In practice, the permission to kill is because of the property. It is not because of the threat to life. True—what does “because of the property” mean? In the end, the Talmud does say it’s because he threatens my life. But he threatens my life only because I have the right to defend my property. And now a situation of pursuer has been created, and I’m allowed to kill him. If not—if it were not permitted to kill because of the property, then this whole thing would never begin. It would be forbidden to kill the…

[Speaker D] I’m with you up to here. Okay. It’s permitted to defend his property. Now it becomes a case of mortal danger, and I kill him because he’s mortal danger, not because of the property. Wait—I have permission to defend my property.

[Rabbi Michael Abraham] Yes, but even at the price of the life of the pursuer,

[Speaker D] of

[Rabbi Michael Abraham] the thief, only

[Speaker D] when it’s a matter of saving life.

[Rabbi Michael Abraham] And if he—this is the question—if he runs away with the money, I can’t stop him, but he doesn’t kill me. He’s a big thug. How did you jump to that?

[Speaker D] Wait, you’re right—just

[Rabbi Michael Abraham] a moment, we’ll come to that.

[Speaker D] Let’s say it’s not that. A man comes with a gun and threatens me: “Give me a kiss or I’ll kill you.” Am I allowed to kill him? It has nothing to do with money at all. It has to do with the fact that he’s threatening me. He wants to force an act on me, it doesn’t matter what, and he threatens me. That’s what I call the emphasis. Property isn’t even a factor here.

[Rabbi Michael Abraham] No, now I’ll ask you the opposite question. Let’s go back to the thief—exactly the question you asked earlier. The thief will not kill me. Certainly he won’t kill me. He takes the money and goes. He’s a thug; I can’t stop him. Okay? Fine? So he won’t kill me—is it permitted for me to kill him? No. That’s the point. Not because he threatens me.

[Speaker D] But you’re taking the example, in order to argue for the American position, you’re taking the shekel example. Yes. But with the shekel I’m not defending the shekel; I’m defending myself against a person threatening my life.

[Rabbi Michael Abraham] It’s obvious that in the end I’m doing it because of the shekel.

[Speaker D] No, no, no—I’m not at all sure that if I give him the shekel he won’t kill me.

[Rabbi Michael Abraham] There’s no certainty? Fine—Elijah the prophet came and informed you that if you give him a shekel, he leaves.

[Speaker D] And is that what the Talmud is discussing? Is that what the Talmud is discussing? Elijah didn’t come.

[Rabbi Michael Abraham] I’m saying that the Talmud explicitly says about me

[Speaker D] that I’m allowed to defend myself.

[Rabbi Michael Abraham] Exactly—so no forced interpretations. I’m asking you what happens when I know he won’t kill me. Okay? Not the law—I don’t care right now about the practical case where there’s always some concern—but we’ll also get to such situations. Here I really do have a leap that I’ll need to come back to. But my claim is that basically, at least in this initial assumption before the leap I mentioned, first of all my basic motivation is property, not life. True, in order to defend the property, it may be that a threat to life will emerge, and then I am permitted to kill him.

[Speaker B] Let’s say it’s clear no threat will arise—a weak person, let’s say, who can’t threaten me. I can slap him twice and I can…

[Rabbi Michael Abraham] Right, so that’s the question.

[Speaker B] The question is whether it’s permitted.

[Rabbi Michael Abraham] No—if he’s weak and you can prevent the theft, then apparently it’s forbidden. No—you can’t prevent the theft, because I’m saying he takes it and runs.

[Speaker B] That’s what I asked before, in general.

[Rabbi Michael Abraham] Look, so what we see from here first of all is that this is not a classic case of pursuer. It’s not a classic case of pursuer, because I created the situation of pursuit—I, the pursued one, created the situation. I could have chosen not to defend the property. That’s why the Talmud needs a source for the fact that his death may be by any means and not only by the sword, and also on the Sabbath, and also by any other person, yes? “Any other person” really is not a simple question. If I decide to forgo my property, then there’s no problem, and let him go. What gives another person permission to kill the one who comes in through a tunnel? Maybe I’ll decide to give up my property, and that’s that. By the way, that is one of the proofs for my leap. The permission for another person. The permission for another person says that in fact I’m killing him over the property. Because if it were really only because of the threat, then first let them decide whether he’s resisting or not; maybe he’ll stay shut upstairs. Why does some other cowboy suddenly go in there and shoot him because he’s on someone else’s property? You have to determine whether there is a situation of pursuit here or not. So that’s the basic distinction, and I think it explains all the differences I mentioned earlier. Of course, though, it leaves the question: why do we need the threat to life? If it really is permitted to kill in order to defend property, then I would expect that even in the case of his father—where certainly he won’t kill him—but assuming I can’t stop him from taking the money in any other way except by killing him, it should also be permitted to kill him. Because in the end I’m killing in order to save the property. So why does the Talmud say that only where there is at least some concern—even a remote concern, but some concern—for protecting life? Here there are two possibilities. One possibility is to prevent cheapening of human life. The Torah says: true, in principle you kill over property, but you can’t permit people to kill so wildly. So I say: I have to hang it on some sort of near-fiction of mortal danger. Look at the language of the Tur, for example: “Therefore one may not kill him unless one knows with certainty that if the owner of the property stands up to save his property, this one will rise against him and kill him. However, every person is presumed to be in this category, and one may kill him, unless he knows that the sinner loves the owner of the property and would not kill him even if he stood against him to save his property.” That’s the father. Meaning, unlike the law of a pursuer, where if you see the situation of pursuit you shoot—here, no. Here you always shoot… sorry, not “in the situation”… not with a pursuer—you have to be certain that the person is a pursuer. Here you have to be certain that he is not a pursuer in order not to kill him. Again, this is different from pursuit, and this time more stringently. And why?

[Speaker B] Because really I think the permission

[Rabbi Michael Abraham] to kill is to defend the property—pursuit of property. Exactly. The permission to kill is because of pursuit of property, to save the property. True, I’m not willing to allow a person just like that to kill, so I say: I create almost a fiction—wherever there is some concern that danger to life is present, I say okay, I define this as the law of a pursuer. But that’s a definition. It’s not that there is really pursuit here. If it were another kind of pursuit, in such a situation I wouldn’t permit killing.

[Speaker D] Or someone that if he stands against him

[Rabbi Michael Abraham] it won’t come to that

[Speaker D] that’s the father, so that’s not true. Or there’s a presumption—the Talmud says…

[Rabbi Michael Abraham] Wait, I’ll get to the presumption—that will be next time. I’ll get to the presumption, because there are disputes there. The second possibility—and maybe it’s not independent of the first—is that the Torah and the Talmud assume that usually, if he won’t endanger my life, then I can prevent the pursuit. So I’ll hit him, I’ll struggle with him, I won’t yield. As long as there’s no danger to my life, the assessment is—again, as a general assessment—the assessment is that I’ll manage to prevent the taking of the property. And therefore they tell me: don’t kill him, save your property. Why are you allowed to kill him? Because there’s concern that if you insist, he’ll kill you, so that in the end the killing is still for the sake of saving property. But in any situation where there is no threat to my life, if I’ve already caught him, then he simply won’t manage to steal. Meaning, I’ll be able to prevent it. But true, if some big thug comes whom I can do nothing against, then maybe indeed. It could be that there too one would be allowed to kill him. And really they’re only talking about the ordinary situations.

[Speaker F] Is there an issue of deterrence? Meaning?

[Rabbi Michael Abraham] Like Maimonides says, let’s say, that this is a phenomenon.

[Speaker F] So those are considerations…

[Rabbi Michael Abraham] I don’t think that’s directly relevant to the tunnel case itself. It may be that the Torah wanted to deter in general—not because it was a specific phenomenon, because it’s not speaking about a specific case. But it may be that it had some interest in deterrence, and therefore it said that his life is ownerless. And therefore what I’m saying—“there is no bloodguilt for him”—that too is the same point. Why does the verse say “there is no bloodguilt for him”? It doesn’t say “kill him.” “There is no bloodguilt for him” means: it is your right to save your property. If you want to forgo it, forgo it—no problem. If you take pity on his life, fine. Go to the police. That’s okay. You don’t have an obligation—it’s not like a pursuer. You can shut yourself in the room and nothing will happen. But you are allowed to defend the property even at the price of the thief’s life, and “there is no bloodguilt for him” is exactly that expression. “There is no bloodguilt for him” means: that is your right to do. There is no commandment here and no obligation; it’s not the law of a pursuer. But it is your right to do it, because a person has the right to defend his property. So that’s the broad picture. We need to get into the details here; we’ll see that next time.

Dilemmas Concerning Human Life – Lecture 5

Table of Contents

Summary

General Overview

Two Principles: Third Party versus the Law of the Pursuer

Classifying Dilemmas and the Claim that Reality Is Not Dichotomous

Partial Pursuit, “Like a Pursuer,” and Doubtful Pursuit

Blame, Life-Value, and Combining Considerations

The Kite Example: Partial Responsibility and the Gallant-Bennett Dispute

Proportionality, Personal Threat, and Decision-Making Institutions

Partial Pursuit in Jewish Law: Rabbi Ben Zion Abba Shaul and Leavened Food on Passover

Property: “A Person Does Not Save Himself Through Another’s Property” and Rabbi Shimon Shkop

“It Is Agreeable to Him” and the Difference Between Consent and Theft

Right versus Value: Ownership, Freedom, and Zimri-Pinchas

An “American” Intuition and the Cases of Shai Dromi and the Automatic Rifle

An Article in Techumin and the Editorial Response

The Burglar Who Tunnels In: The Verses, the Context, and the Punitive Dimension

Rabba’s Interpretation: Danger to Life as the Basis of the Permission

Indications That the Topic Is Not a Standard Pursuer Case

The Main Claim: In Practice, the Permission Stems from Defense of Property

Why Danger to Life Is Needed, and a Proposed Explanation from the Tur

“There Is No Bloodguilt for Him” as a Right and Not an Obligation

Full Transcript

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Table of Contents

Summary

General Overview

Two Principles: Third Party versus the Law of the Pursuer

Classifying Dilemmas and the Claim that Reality Is Not Dichotomous

Partial Pursuit, “Like a Pursuer,” and Doubtful Pursuit

Blame, Life-Value, and Combining Considerations

The Kite Example: Partial Responsibility and the Gallant-Bennett Dispute

Proportionality, Personal Threat, and Decision-Making Institutions

Partial Pursuit in Jewish Law: Rabbi Ben Zion Abba Shaul and Leavened Food on Passover

Property: “A Person Does Not Save Himself Through Another’s Property” and Rabbi Shimon Shkop

“It Is Agreeable to Him” and the Difference Between Consent and Theft

Right versus Value: Ownership, Freedom, and Zimri-Pinchas

An “American” Intuition and the Cases of Shai Dromi and the Automatic Rifle

An Article in Techumin and the Editorial Response

The Burglar Who Tunnels In: The Verses, the Context, and the Punitive Dimension

Rabba’s Interpretation: Danger to Life as the Basis of the Permission

Indications That the Topic Is Not a Standard Pursuer Case

The Main Claim: In Practice, the Permission Stems from Defense of Property

Why Danger to Life Is Needed, and a Proposed Explanation from the Tur

“There Is No Bloodguilt for Him” as a Right and Not an Obligation

Full Transcript

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