Dilemmas Concerning Human Life – Lecture 6
This transcript was produced automatically using artificial intelligence. There may be inaccuracies in the transcribed content and in speaker identification.
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Table of Contents
- Burglary by tunnel, the law of a pursuer, and the justification for killing
- The Sabbath, the need for a source, and the difficulty of framing it as a pursuer
- The proposal: permission to kill in order to save property, with the threat as an operational rationale
- Human nature, “A person does not stand by over his property,” and the contradiction from the laws of a fire
- “Freezing the halakhah” versus cynical exploitation, and the connection to the Sabbath
- Analogies: a threat in the street, Zimri and Pinchas, and a soldier with a cellphone on the Sabbath
- Fleeing from a religious court, an agent of the religious court, and the blood avenger in Mishneh LaMelekh
- Gentiles who besieged Jewish towns, Terumat HaDeshen, and Magen Avraham
- Proofs from Maimonides: placement, the wording “permission,” and the laws of a pursuer
- Warning, “he can save him by injuring one of his limbs,” and the limits of defense
- An informer as like burglary by tunnel, and extending the logic to property
Summary
General Overview
The text presents a reading of the passage about burglary by tunnel according to which the permission to kill a thief who breaks into a house does not really rest on the law of a pursuer and danger to life as the fundamental principle, but rather on the homeowner’s right to defend his property, while creating a kind of “envelope” of concern for life either to avoid cheapening human life or to explain why the Jewish law permits it even on the Sabbath. It challenges the Talmudic framing that this is an extension of the law of a pursuer, because if the whole justification were preservation of life, then the homeowner should have been instructed to lock himself in and avoid confrontation. It also argues that the need for a special source to permit this on the Sabbath does not fit ordinary life-saving. Along the way, it also advances a separate thesis according to which the Jewish law “freezes itself” מול someone trying to exploit it cynically in order to commit an offense confidently, knowing the homeowner will recoil because of the prohibitions. Therefore it removes barriers like the Sabbath and even allows severe harm so that the Jewish law will not become a shield for criminality.
Burglary by Tunnel, the Law of a Pursuer, and the Justification for Killing
The Talmud bases the permission to kill the burglar on concern that he might kill the homeowner, as a kind of extension of the law of a pursuer, because the Talmud does not accept killing merely to save property, without some component of threat to life. The text argues that from the standpoint of logic it is difficult to say that the permission comes from danger to life, because the homeowner could remain locked in his room and not defend himself, and then no threat to his life would arise. It emphasizes that the clash is created precisely because the homeowner goes out to protect his property, so the danger to life is born from the attempt to save the property, not the other way around.
The Sabbath, the Need for a Source, and the Difficulty of Framing It as a Pursuer
The text argues that if this were an ordinary pursuer, there would be no need for a special source permitting the killing of the burglar on the Sabbath, because life-saving overrides the Sabbath anyway. It concludes that the permission here is not simply “saving a life,” but a mechanism that allows the homeowner to protect his property, and that is why a special rationale is needed for the Sabbath. It sharpens the point by saying that even with respect to the Sabbath, one could have told the homeowner to remain in his room so as not to come either to killing or to Sabbath desecration, and therefore the very permission to desecrate the Sabbath in this context requires a further explanation.
The Proposal: Permission to Kill in Order to Save Property, with the Threat as an Operational Rationale
The text proposes that the permission to kill the one who comes by tunnel is actually permission to kill in order to save property, in an “American-style” approach, except that it is limited to a case where there is no way to save the property without killing. It explains that the concern that “perhaps he will kill” is not the moral ground that justifies the killing, but rather an indication that the homeowner will not be able to save his property unless he kills, because the confrontation will lead the thief to kill him. It applies this as well to the example of a father who comes by tunnel: according to this view, if it is certain that the father will not kill the son, then the son can save the property without killing, and therefore there is no justification to kill the father.
Human Nature, “A Person Does Not Stand By Over His Property,” and the Contradiction from the Laws of a Fire
The Talmud explains the law of the tunnel by the presumption that “a person does not stand by over his property,” meaning that it is natural for a homeowner to confront someone over his property, and therefore it is expected that the thief may kill him in order to escape. The text sets this against the laws of a fire on the Sabbath, where precisely because a person is frantic over his property, the Sages limit rescue efforts lest he come to desecrate the Sabbath. It argues that the gap between the use of this presumption in the tunnel passage and its use in the case of a fire strengthens the possibility that danger to life here is an explanatory framework rather than the real reason for the permission, and that the real permission has to do with defense of property within value-based limits.
“Freezing the Halakhah” versus Cynical Exploitation, and the Connection to the Sabbath
The text offers another formulation according to which the thief comes on the Sabbath or at night on the assumption that the homeowner will not violate severe prohibitions in order to save property, and so he is “counting on” the protection of the Jewish law. It says that someone who exploits the Jewish law in order to commit an offense gets a response of “freezing,” meaning that the Jewish law removes the protections and limitations that would otherwise prevent the homeowner from defending himself. This is then used to explain why even the barrier of the Sabbath falls away in the case of burglary by tunnel, because the Sabbath too could become a tool that protects theft if the homeowner recoils from desecrating it.
Analogies: a Threat in the Street, Zimri and Pinchas, and a Soldier with a Cellphone on the Sabbath
The text argues that when facing a direct threat in the street like, “Give me a shekel or I’ll kill you,” one is permitted to kill the attacker, and there is no obligation to give up the money in order to avoid confrontation. It cites the passage of Zimri and Pinchas in tractate Sanhedrin, according to which if Zimri had turned around and killed Pinchas, he would not be executed for that, and explains this as expressing the idea that one is not obligated to stop an act, or even a “sin,” just in order to avoid the need to defend oneself from someone attacking you. It compares this to a practical ruling for a soldier who wants to go to synagogue on the Sabbath and is required by security instructions to carry a cellphone, concluding that one need not refrain from doing something permitted merely in order to avoid entering a situation where one must carry something required by an external security risk.
Fleeing from a Religious Court, an Agent of the Religious Court, and the Blood Avenger in Mishneh LaMelekh
The text cites a discussion in Mishneh LaMelekh asking whether a person is allowed to flee from a religious court and whether he may kill an agent of the religious court who comes to carry out a death sentence, and presents a negative conclusion because the agent is carrying out a public obligation in which the condemned person himself is included. It notes that Mishneh LaMelekh also discusses whether an unintentional killer may kill the blood avenger, and brings the claim that this would be permitted because the unintentional killer is not really liable to death by the primary law, even though the blood avenger has permission. It also raises a question about suicide in a case where a death penalty has been ruled by a religious court, as opposed to a case where today there is no ordained religious court, and leaves unresolved the question whether one who kills himself transgresses once the court has already ruled.
Gentiles Who Besieged Jewish Towns, Terumat HaDeshen, and Magen Avraham
The text brings the law of gentiles who besieged Jewish towns on the Sabbath: if they come over matters of money, one does not desecrate the Sabbath, but if they come over matters of life, one does desecrate it. It quotes Terumat HaDeshen, brought in the Shulchan Arukh, that “in our time,” even over matters of money one desecrates the Sabbath, because if they are not allowed to plunder they will kill, and the matter is therefore considered life-threatening. It brings Magen Avraham’s question as to why one should not simply let them take the money in order to avoid Sabbath desecration, and presents a distinction according to which with a gentile there is not necessarily conscious exploitation of the Jewish law, so there is no reason to “freeze” Sabbath prohibitions, whereas with a Jewish thief there may be a dimension of halakhic exploitation that justifies removing the barriers.
Proofs from Maimonides: Placement, the Wording “Permission,” and the Laws of a Pursuer
Maimonides places the law of burglary by tunnel in the Laws of Theft and not in the Laws of Murder and Preservation of Life, and the text sees this as an indication that this is a law connected to the thief and to defense of property. Maimonides writes, “Everyone has permission to kill him,” regarding one who comes by tunnel, in contrast to the language of commandment in the case of a pursuer: “All Israel are commanded to save the one pursued… even at the cost of the pursuer’s life,” and the text sees this as proof that we are dealing here not with a duty of rescue but with a permission for the homeowner. Maimonides applies the permission “whether the intruder is an adult or a minor, male or female,” and the text concludes from this that even a small chance is enough, such that it is forbidden only when it is certain the intruder will not kill, which is seen as the reverse of the certainty requirements in the law of a pursuer.
Warning, “He Can Save Him by Injuring One of His Limbs,” and the Limits of Defense
In the law of a pursuer, Maimonides requires, where possible, a warning, and limits killing if one can save the victim “by injuring one of his limbs.” The text emphasizes that Maimonides and the Talmud do not place parallel limits in the case of one who comes by tunnel, and there are views that infer from this that there is no obligation of warning and no obligation to save by injuring one of his limbs. It connects this to the idea that the thief acts by making use of halakhic protections, and therefore the Jewish law removes those protections from him, whereas in the case of a pursuer the Jewish law preserves a normal structure of restricting lethal force to what is necessary.
An Informer as Like Burglary by Tunnel, and Extending the Logic to Property
The text brings the Talmud in Bava Kamma and the rulings of the medieval authorities (Rishonim), Maimonides, and the Shulchan Arukh that permit killing an informer, and presents the words of Rabbi Eliezer of Metz, who compares an informer to one who comes by tunnel, “because a person does not stand by over his property.” It quotes a responsum of the Rosh about the custom “to punish him by removing him from the world” when dealing with an established informer, both because of “public necessity” in order to deter and in order “to save all Israel, who are pursued by his hand.” It concludes that approaches permitting the killing of an informer even over property strengthen the reading according to which the Jewish law allows us to understand burglary by tunnel primarily as a law of defending property rather than a law of saving life.
Full Transcript
[Rabbi Michael Abraham] We’re in the passage of burglary by tunnel, and we saw that from the plain sense of the Talmud it emerges that the permission the Torah gives to kill a thief—if a thief comes by tunnel to steal, then you can kill him; “he has no blood”—but the Talmud frames this, and I’m not going back over all the introductions and what I connected this to in previous lectures, the Talmud says that the permission to kill the thief is based on the concern that he will kill the homeowner. Really this is some kind of extension of the law of a pursuer. In other words, the Talmud is not willing to accept the view that a threat to property is sufficient justification to kill the one making the threat, or that I’m allowed to kill in order to save property. The Talmud wants there to be some kind of threat to life, on the one hand. On the other hand, I said that I tend more toward the American view, which says that if someone enters my house, he’s not leaving. In other words, it doesn’t matter at all whether he’s threatening property or threatening life. But in the Talmud itself, apparently we don’t see that. And the question is how—or the Saudi method.
[Speaker B] What? The Saudi method.
[Rabbi Michael Abraham] The Saudi method, yes. The Saudi method is that if he comes into your place, he doesn’t leave, even if he doesn’t want to steal a thing from you; he simply doesn’t leave, period. Actually in Israel it works the other way around. If a woman wasn’t allowed in because she belongs to BDS, then we’re the ones who don’t let her in; it’s more or less like those who don’t let people out. In any case, this view, that what we have here is an extension of the law of a pursuer, we saw that it’s difficult first of all on logical grounds. Because a person can stay shut in his room and not defend himself, and then the thief will wander around the house, take what he wants, and go on his way. So the fact that I come out and try to defend my property is really what creates the need to kill him. In practice, you can’t say that I kill him because I’m under threat. I’m not under threat. If I stayed in the room, he wouldn’t do anything to me; he came to steal. Rather what happens is that I go out to defend myself, and then there is concern that maybe he will kill me, and therefore under the law of a pursuer I can kill him. So if the whole justification really were only life-saving, I would expect the Talmud to tell me to stay in the room and not defend myself. Beyond that, the Talmud brings a special source for the fact that this can be done even on the Sabbath. Now if this is an ordinary case of a pursuer, why do we need to talk about the Sabbath? That’s completely obvious. If there is a threat to life on the Sabbath, of course it is permitted, and indeed it is a commandment, to kill the pursuer even on the Sabbath. Life-saving doesn’t need another source for that. And again, that strengthens the point that this is not really the law of a pursuer in the simple sense. In other words, it’s not just killing for the sake of saving life. Killing for the sake of saving life wouldn’t have needed all this. I brought another proof for that. So my claim was that the permission to kill the thief is actually permission to kill in order to save property—an American-style approach. In other words, you are allowed to kill him in order to save property. Except that obviously if I can protect my property in a way that does not require killing the thief, then there is no threat to my property that requires killing him in order to save it. There, there is no permission to kill him. But in a place where—as a rule, yes—
[Speaker D] But in a place where he threatens the—
[Rabbi Michael Abraham] My property, and I have no way to save the property because he’s going to kill me. In other words, the fact that he’s going to kill me is not because that creates the threat; that’s not the point that justifies killing him. Rather, that’s the point that says I can’t save my property without killing the thief. Because if I don’t kill him, he’ll kill me. Meaning, I won’t succeed in saving my property. So the justification for killing him is that otherwise I won’t manage to save the property, not because there is a threat to life. In other words, the concern the Talmud mentions—that maybe he’ll kill me when I defend myself—the Talmud is basically saying: do this in a place where you can’t defend yourself in any other way, meaning your property will be lost unless you kill him. If so, then kill him—but for the sake of the property, not because of the threat.
[Speaker E] But isn’t the natural human behavior, when someone comes, that he defends his—?
[Rabbi Michael Abraham] Yes, so the Talmud itself says that. In a second I’ll get to it. Good point, yes.
[Speaker B] If so, then the logic regarding the father—that on the Sabbath he says he won’t kill you on the Sabbath, and therefore it’s forbidden—
[Rabbi Michael Abraham] Right, but again, according to my understanding—
[Speaker B] The property is not—
[Rabbi Michael Abraham] No, according to my understanding the claim is that since he won’t kill me, then I can save my property even without killing him. Since in any case he won’t kill me, there is no justification to kill him. And there too I would translate it that way. So in the end, the issue is not whether I am under threat or not. The question is whether I can save the property. If he won’t kill me, then I can save the property even without killing him. Let’s say a practical difference, according to my interpretation, would be that if the father is some kind of thug, he won’t kill me, fine. He’s a good-hearted thug. But he’s still the kind of person from whom I won’t manage to save my money. Even if he won’t kill me, he’s stronger than I am and he’ll take my money. So then am I allowed to kill him? According to the interpretation I’m suggesting, I’d say yes. That’s not stated in the Talmud. But the claim is that in the end, yes, the Talmud requires a threat in order to justify killing the thief—but the threat is not needed in order to classify him under the law of a pursuer. The threat is only an explanation of why I can’t save my property without killing the thief, because otherwise he’ll simply kill me. Therefore in the end I kill him in order to save the property.
[Speaker F] But isn’t there always a threat the moment he enters my house? Who knows what he’ll do next? I can’t be a prophet. And once he’s entered my territory, I assume he may come into my bedroom too. Even if I locked it, he’ll break it down.
[Rabbi Michael Abraham] That’s a very far-reaching assumption. Usually someone who comes quietly into a house doesn’t come in with a rifle and do whatever he wants. That’s a robber. A thief usually comes quietly. That’s why there’s the difference between fourfold and fivefold payment as opposed to double payment for a robber, as the Talmud says. The assumption is that a thief does not come to kill. Even in the Talmud when it says this, the assumption is not that the thief came in order to kill. If you defend yourself and he gets scared and won’t succeed, then he may kill you. By the way, even then the question is whether he’ll kill you in order to get out with the loot, or whether he’ll kill you because he’s afraid you’ll kill him. There are different formulations among the medieval authorities (Rishonim). But in any case it’s clear that even for the sake of the loot, it’s not obvious that he would kill you. And just to kill you for no reason—certainly not.
[Speaker D] He’ll hide in the other rooms, not in your bedroom, and leave. But this still depends on the fact that it’s on my property. Because if I’m walking on the road and he comes to rob me, that doesn’t apply. That’s not the law of burglary by tunnel, right? It’s only when he comes— I don’t agree.
[Rabbi Michael Abraham] I don’t agree. Here, there was a question. Okay. I brought the example of a person who threatens me and says, “Give me a shekel.” On the street, not at home, not through a tunnel, nothing. “And if not, I’ll kill you.” He’s threatening me with a gun. Do I have to give him a shekel? The answer is no. I’m allowed to kill him.
[Speaker D] I’m allowed to kill him.
[Rabbi Michael Abraham] I said even more than that. The Talmud in tractate Sanhedrin brought the case of Zimri, right? The Talmud in tractate Sanhedrin says that if Zimri had turned around and killed Pinchas, he would not be executed for it. So the later authorities (Acharonim) ask: what do you mean? He could have saved himself even without killing Pinchas if he had stopped sinning. If he had stopped sinning, Pinchas wouldn’t hurt him. So what is the permission to kill the pursuer? After all, this is a case where “he can save him by injuring one of his limbs.” He has the option of being saved without killing the pursuer, so how is he allowed to kill the pursuer? So the claim is: no. I want to sin. It’s none of your business whether I sin or not; that’s my account with the Holy One, blessed be He. And I don’t owe you that I stop sinning. I want to sin. If you threaten me because I’m sinning, I’ll kill you—you have the law of a pursuer. And certainly when you demand a shekel from me, where of course I have the right to keep my shekel. The right to sin is a big novelty. But the right to keep my shekel is certainly a simple right. By the way, that reminds me: before last Sabbath, literally a few minutes before the Sabbath, I got a WhatsApp question from some soldier. A soldier asked me—he was at some outpost and had to go to… he wanted to go to synagogue on the Sabbath, but the standing instruction there was that if he went to synagogue he had to take a cellphone. Okay? In case they needed to call him back to the outpost or something. Apparently he was going to some nearby community or something like that. So the question was whether he was supposed to stay at the outpost. He thought he had to stay on base. What’s the justification for taking the cellphone? He could stay on base and pray alone. The matter of prayer with a quorum—by the way, the question of what exactly its status is, whether it’s an obligation or not, or exactly how to define it—we won’t get into that now. But in principle, it doesn’t seem to justify violating the prohibition of handling set-aside objects or carrying, or whatever the issue was there. I asked him whether if he went there without this instruction, would he take a weapon. He said, “Of course. A soldier goes everywhere with a weapon.” I said to him, “Then take a cellphone too. What’s the difference?” In the end, you’re going—and I thought of it because it’s the same line of thinking as here. You’re going to pray. You’re going to pray, right? That’s even desirable. But now when you go to pray, some kind of security problem is created. That security problem obligates you, in their case, to take a weapon and a cellphone. Okay? Fine. So take a weapon and a cellphone, take whatever you need. You don’t have to refrain from going to synagogue in order not to get into a situation where you need to take a cellphone or a weapon. And here too, same thing. I don’t need to refrain from giving him a shekel, or refrain—even from sinning, to that extent—in order not to enter a situation where I’ll have to violate the prohibition of murder. I have the right to do what I decided to do. If I get into trouble because I decided to do something that I have a right to do, then I’ll solve the problem. I don’t have to refrain from what I’m doing because that thing may create problems.
[Speaker D] So does that mean you also have the right to sin, if there are witnesses and warning, and then try to flee from the religious court?
[Rabbi Michael Abraham] That’s an interesting question. Mishneh LaMelekh discusses it. Mishneh LaMelekh asks exactly that question, and that’s connected to Zimri. He asks: what happens—just a second—what happens if one flees from a religious court? Fleeing may very well be permitted. But to kill the agent of the religious court—that is, the court agent who comes to carry out the death sentence imposed on you after you desecrated the Sabbath with witnesses and warning—are you allowed to kill the court agent? He claims no. In the end, although he hesitates, he concludes no. But before that he asks another question—didn’t I mention this? Before that he asks another question about the blood avenger. Is the unintentional killer allowed to kill the blood avenger who comes threatening him? There it’s simpler, because after all he isn’t really liable to death. The blood avenger has permission to kill him, but I have the right to defend myself, because I’m not really liable to death. So regarding the blood avenger he claims yes, I am allowed to kill the blood avenger. A big novelty; nothing like that appears from the Talmud, but that’s what he claims. But regarding this case he says no. And I think I explained it—I seem to remember. I said my claim is that the reason you’re forbidden to kill the agent of the religious court is that the court agent is also your agent. The obligation to kill someone who desecrates the Sabbath is an obligation on the public; it’s not some private commandment of the court. The court is operating here as representative of the public. It carries out the obligation placed on the public. And you too are part of the public. So in principle, the obligation to kill you rests on the whole public, including you. So clearly you can’t run away from an obligation that is imposed on you yourself. If somebody else wants to do his duty, like Pinchas, and I owe him nothing, then yes, I’m allowed to defend myself. But if he is carrying out the law—meaning, he is doing what the public is supposed to do—then there I too am supposed to cooperate. Of course that doesn’t mean I have to commit suicide if the court agent doesn’t succeed in killing me.
[Speaker E] If that person, yes, a warrant was issued against him and all that, and he killed himself, would that be considered intentional self-destruction, or—?
[Rabbi Michael Abraham] On the face of it, yes. I think that as long as someone else is supposed to kill me, not me. For example today—let’s say today, when there are no ordained religious courts, then there are no capital cases, right? So obviously today, even if a person desecrated the Sabbath with witnesses and warning, obviously he doesn’t need to kill himself. To tell you that he’s allowed to kill himself? I don’t think so. As long as it hasn’t been placed into the regular halakhic procedure. Now here there’s a difference, because here there wasn’t even a religious court that determined that I am liable to death, because today there are no ordained judges at all. So it seems obvious to me that that would just be ordinary suicide. In a place where a religious court did determine a death sentence against me, then I’m already basically a dead man because the court determined it, and then I truly am liable to death. Now the question is whether, when I kill myself, I am committing a transgression or not. I don’t know. Interesting question. I don’t know how to answer it.
[Speaker B] Wouldn’t it be better to say, in the case of Zimri and Pinchas, that with Pinchas it’s not that he’s permitted, but exempt if he did it, because you have to say that he needs to separate from the sin?
[Rabbi Michael Abraham] Obviously they wouldn’t tell Zimri that a priori. In other words, the fact that he decided not to stop—does that justify, or permit, or exempt him for killing Pinchas? Obviously we expect him to stop the sin in order to save Pinchas, not only because it’s a sin. But he doesn’t owe that to Pinchas.
[Speaker B] But here it sounds like you have the right to defend yourself and you—
[Rabbi Michael Abraham] You don’t owe that to Zimri; you owe it to the Holy One, blessed be He. It’s a sin. So obviously the person is no righteous man if he—but as far as his obligation to Zimri goes, to Zimri I owe nothing. If I decided to sin, I decided to be wicked, that’s none of your business; that’s my business with the Holy One, blessed be He. And the Holy One, blessed be He, will settle accounts with me. And if I continued and because of that also killed Pinchas, then He’ll certainly settle accounts with me for that too. In other words, because I insisted on sinning, I also killed Pinchas. Fine. Then He’ll also settle accounts with me for that.
[Speaker D] Pinchas was only supposed to kill him while he was in the very act of intercourse. And if it wasn’t during the act, would he have been allowed to kill Pinchas before that?
[Rabbi Michael Abraham] No. But even during the act he is allowed to kill Pinchas—that’s what the Talmud says. Otherwise it’s just an ordinary pursuer, so what’s the novelty of the Talmud? It’s obvious. Standard law of a pursuer: someone comes to kill me, and that’s it, there’s nothing else going on—then obviously he has the law of a pursuer. No, the Talmud says that even in a place where it was permitted for Pinchas to kill him—and not only permitted, after all he received “Behold, I give him My covenant of peace”; the Holy One, blessed be He, praises him greatly for that, Pinchas. Fine, let Him praise him, that’s nice. But that has nothing to do with me. I owe him nothing.
[Speaker H] Regarding the soldier’s question, why did you tell him that if he’s taking a rifle with him, what—
[Rabbi Michael Abraham] What does that mean? That he’s committing a transgression because of—exactly. You—you need to go there because you want to pray. Praying is permitted on the Sabbath, right? Now what? You go there, and suddenly some life-threatening security problem is created. That problem is dealt with by means of a weapon or a cellphone or both, depending on the circumstances. No problem. If there’s a problem, you’re allowed to deal with it. That’s permitted; it’s not a forbidden act. Therefore you’re not obligated to refrain from going to synagogue so as not to need to do those things. You go to synagogue because it’s permitted, and whatever you’ll need to do in order to—
[Speaker D] So then also someone who drives to synagogue? No, no, no, because that’s not—that’s an essential problem.
[Rabbi Michael Abraham] The synagogue itself requires you to drive, which is not a factor coming from a third party. It’s like the difference between a pursuer and saving oneself at the cost of another person’s life. Here I’m going to synagogue, and that in itself is permitted. Now someone else comes and threatens me, so I defend myself. But if the very going to synagogue itself involves a prohibition, or a commandment that comes through a transgression… The claim is basically—
[Speaker D] The Sabbath boundary, for example—that was the point. Right, right, obviously.
[Rabbi Michael Abraham] Anything that’s because of the going to synagogue itself, like the distance—
[Speaker D] The Sabbath boundary. If he weren’t going to pray, right, he wouldn’t be—
[Rabbi Michael Abraham] He wouldn’t go—then don’t do it, yes, yes. In a place where going to synagogue itself requires a prohibition, that’s a commandment that comes through a transgression. In a place where I’m going to synagogue and everything is fine, that’s permitted, only somebody is threatening me that if I go to synagogue there will be a problem, then I’ll deal with him.
[Speaker I] And is that because it’s prayer? If he were going out for a—
[Rabbi Michael Abraham] No, no, no. Also—for a walk, also. We go for a walk, we’re in—let’s say even in communities in Samaria or something like that—people go out walking on the Sabbath and take a weapon with them. So should they not go for a walk? It’s a walk; it’s not some great commandment. Doesn’t matter. Going for a walk is permitted. If a threat is created as a result of my walking, then I have to defend myself. What can I do?
[Speaker D] Why isn’t that like the car to synagogue?
[Rabbi Michael Abraham] So that’s what was asked here earlier. Because the car is required for the very going to synagogue itself; it’s not a threat from a third party. So that’s a commandment that comes through a transgression—I commit a transgression in order to do the commandment. Here I do the commandment, and now someone threatens me, so I defend myself against him.
[Speaker D] And if you’re taking a drive around and you happen to pass a place where you could also stop by a synagogue?
[Rabbi Michael Abraham] Then that’s already adding to a measure, and the question is how to relate to adding to a measure, yes. Well, in any case, it’s even more than that here, because here it’s a special trip to the synagogue.
[Speaker D] No, no, within the area where you’re driving around… what’s the question? What’s the question? You can also come with something—
[Rabbi Michael Abraham] Adding to a measure is when you’re cooking for a sick person and you want to add a few more things for yourself—you’re already doing the act of cooking anyway. Here it’s different. If you add extra distance just for this, that’s not exactly adding to a measure. Anyway, by the way, even adding to a measure—there are views that say that’s Torah-level, and views that say not. But anyway, for our purposes: the claim is that the justification for killing the thief is not because of the threat to life, but because of the defense of property. So then why does the Talmud nevertheless need to say that there is a threat to life here? So what I said until now is that the threat to life is only an indication that I cannot save my property without defending myself, because he will simply kill me. It’s just to make sure that there really is a threat to my property. Another possibility that I mentioned—already last time too—is that perhaps they still don’t want to cheapen human life. Just to kill a person over some property or other, when you don’t even know whether it’s necessary, to what extent it’s necessary, and so on. So look, we’ll put in some restriction. In other words, if there is even a hypothetical and remote concern that maybe he will kill you—it’s some kind of half-fiction—but there has to be some fear of death in order for me to permit you to kill over property. Because in terms of the law of a pursuer, that wouldn’t be enough. It’s a remote concern. The law of a pursuer requires near certainty. In other words, if you think someone came to kill you, with all due respect to your thoughts, you can’t kill him. There has to be near certainty. But here I’m saying I permit it even on the basis of distant certainty, because in fact I’m permitting it for the sake of the property. In order to avoid a total cheapening of human life, a kind of value-distortion, okay, so I need some sort of fiction or semi-fiction, some possible threat, even a small chance. In a different formulation, I’d put it like this—and this is also why the Talmud discusses the fact that this can be done even on the Sabbath. I think the more correct formulation, and in a moment I’ll bring a little evidence for it, is that when the burglar by tunnel arrives, his assumption is that I won’t defend myself, because after all I’m forbidden to violate the prohibition of murder in order to save property—if not for my explanation—so I won’t defend myself. So what is he doing, basically? He’s counting on that. He’s counting on the protection the Torah gives him. He’s going to commit a transgression and he knows he’s protected, because the Jewish law protects him. And because I don’t want to violate the Jewish law, I won’t kill him over property, so he’s counting on that. Someone who counts on the protection of the Jewish law—the Jewish law freezes itself. It doesn’t give him that protection. In other words, someone who wants to exploit the Jewish law cynically so that others who observe the Jewish law will allow him to violate the Jewish law—in other words, basically I’m going to steal, okay, which is forbidden. But the Jewish law protects me, no problem; you’re forbidden to kill me because that would be a prohibition, you’re not a murderer, right? And therefore I’ll go on stealing as usual. No. That’s not how it works. If you are cynically using the Jewish law for self-protection, then the Jewish law freezes itself—there are no protections. Including the Sabbath. Including the Sabbath, exactly. Because regarding life, you can still talk about the law of a pursuer. But I’ll say more than that: when it is permitted to kill the burglar by tunnel on the Sabbath, the question comes up again. Because why don’t I stay in the room? So you tell me that for the sake of property I’m allowed to kill him? Why? Because he’s threatening my property. That’s like a pursuer. We already saw that pursuit of property is also the same idea. But here I’m also required to desecrate the Sabbath. Leave aside the prohibition of murder, which is an interpersonal prohibition toward him. What gives me the right to desecrate the Sabbath? Stay in the room. After all, desecrating the Sabbath is really one of the gravest transgressions there is. You have to spend all your money in order not to violate it, right? Any prohibition. Certainly the prohibition of desecrating the Sabbath. Someone who desecrates the Sabbath has the status of an apostate. Okay? So why? What suddenly? Stay in the room. There won’t be danger to life, you won’t need to kill anyone, and you won’t violate Sabbath desecration, taking life, taking a soul. Why? What?
[Speaker D] Like with a fire, where you’re forbidden to extinguish it.
[Rabbi Michael Abraham] Exactly. We’ll get to the fire in a moment. So the claim is that the Sabbath too, in this case, is basically providing protection to the thief. The thief who comes on the Sabbath says: look, he may kill me to defend himself, but desecrate the Sabbath? He won’t desecrate the Sabbath. He’s a righteous man, after all. So I’ll steal—what do I care? He can’t do anything. Okay? So basically the Jewish law says to him, as it were: if you use me cynically so that I will protect you in your criminal behavior, you won’t get that protection. And therefore all the laws are frozen, all the prohibitions that might stop me from defending myself—the Jewish law says: no, they don’t exist. If someone exploits me, then I’m not there. That’s what the Jewish law is basically saying. I’ll show you another example, another example. I’ll bring several examples, yes. One example: the Talmud speaks about gentiles who besieged Jewish towns. Okay? Gentiles are laying siege to towns in the Land of Israel, on the Sabbath, in tractate Eruvin and so on. So the Talmud says that if they come in order to steal money, then it is forbidden to defend against them. But if they come to take lives—notice, “forbidden to defend against them” doesn’t mean it’s forbidden to kill them. That’s not what it says there. But it is forbidden to fight them because of the laws of life? No—it is forbidden because of Sabbath desecration. One does not desecrate the Sabbath for them. What would happen, for example, if those gentiles came on a weekday? Am I allowed to kill them? The prohibition of murder is no less severe than the prohibition of—regarding gentiles it’s still “one who sheds the blood of man,” so it’s not “do not murder,” but it’s still a severe prohibition. So is that allowed? On the face of it, it seems yes. The Talmud is talking about the Sabbath desecration. And that is exactly the distinction I made earlier. The distinction I made earlier is that regarding life, you can still tell me this is the law of a pursuer. So I’m allowed to kill him; it’s a commandment vis-à-vis him. If he created—what was the logic of a pursuer, if you remember? Saving oneself at the cost of another person’s life. You created the equation of either you or me. So you can’t say to me, “Who says the blood of the pursued is redder than my blood? Why are you killing me to save him? His blood isn’t redder.” But you’re the one who created the situation in which a choice has to be made between you and him. So don’t come with complaints. You have to solve the problem. But with Sabbath desecration, that doesn’t exist. With Sabbath desecration it’s not about him. Whether he is guilty or not guilty is irrelevant. How am I allowed to desecrate the Sabbath? That’s not his claim against me; that’s the Holy One’s claim against me. So there I claim that what we have is basically a freezing. Now what happens with gentiles? We see the same thing. When gentiles come on a weekday, then I’m allowed to kill them—assuming I’m right in my reading of the Talmud—even if they come over matters of property.
[Speaker D] Not on the border, meaning? What? The distinction about a border town or not a border town.
[Rabbi Michael Abraham] Also on the border, it doesn’t matter. Yes, on the border—or not on the border—or yes on the border; on the contrary, on the border all the more so. But on the border there is concern that they will capture land, and then maybe one may desecrate the Sabbath anyway. Obviously one desecrates the Sabbath for them. No, I mean in the case where it’s on the border. But the Talmud says that if they come over ordinary matters of money, then not. Okay? So why really not desecrate the Sabbath against them, but killing them yes? What, killing them is a lighter prohibition than desecrating the Sabbath? No. But killing them is a prohibition vis-à-vis them. And killing them on the Sabbath—beyond the fact that I am harming them, which is allowed because they created the situation, as in the law of a pursuer—but desecrating the Sabbath, what gives me the right to desecrate the Sabbath? So I should stay quiet and let them steal. That’s exactly the difference between the prohibition of Sabbath desecration and—
[Speaker D] What does the Talmud say? That one is allowed to—but what does the Talmud say, that one is allowed to desecrate the Sabbath, no?
[Rabbi Michael Abraham] If they come over money, it is forbidden to desecrate the Sabbath.
[Speaker D] That’s not how I remember it. And on the border it is allowed, right? So? That’s the distinction—that on the border it is allowed to kill them, but over money not. Right. So you’re saying they’re exploiting the Sabbath?
[Rabbi Michael Abraham] No, no, I still haven’t said they’re exploiting anything. I just brought the Talmudic passage; in another moment I’ll get to exploitation. So this is what the Gemara says, okay? On the face of it, this contradicts the law of someone breaking in through a tunnel, right? Because in the law of someone breaking in through a tunnel, if he comes for money, you kill him. So what are you going to say—that these gentiles don’t kill? Only thieves who break in through a tunnel get killed? If I defend myself against these gentiles who come for my property, they won’t kill me? That’s unreasonable. Therefore, says… says the… Magen Avraham—that is, Terumat HaDeshen writes before the Magen Avraham; the Shulchan Arukh brings it in the name of Terumat HaDeshen: nowadays, even if they came over a money matter, we desecrate the Sabbath, because if the Jews do not let them plunder and rob their property, they will kill them, and so it is considered a matter of life and death. I don’t know what those gentiles of old were, such righteous people that they were careful about the prohibition of murder—I don’t know. It reminds me of Abraham our forefather. I once spoke about that story, remember? That Abraham said to Sarah, “Please say that you are my sister.” Like Isaac—both Abraham and Isaac. “Please say that you are my sister so that they won’t kill me and take you.” So in the yeshivas they always ask: why did it have to come to that? Why would the Egyptians kill him? If they take her, they’ll commit adultery—what’s preferable? The prohibition of murder over the prohibition of adultery? They’ll kill him in order to solve their problem with the prohibition of adultery, so murder is easier for them to violate? Right, so we talked about that Ran exactly, about the yeshiva pilpulim. In any case, the claim of Terumat HaDeshen is that nowadays, because there is a concern that if I defend myself they will kill me, then it is really just like someone breaking in through a tunnel, and therefore it is permitted for me. I don’t know what he thought about the gentiles of old, I have no idea. But in any case, that’s what is written, and it is also ruled in the Shulchan Arukh, that from the standpoint of the laws of someone breaking in through a tunnel, they apply here too—it’s the same thing. Why did the Gemara say otherwise? I don’t know. Maybe the Gemara said something hypothetical: if you happen to know that these are very polite gentiles who are only coming to steal and they won’t kill you, fine, then don’t kill them. But obviously, if you have a situation like someone breaking in through a tunnel, then all the laws of someone breaking in through a tunnel apply here. Okay?
[Speaker D] If a thief comes on the Sabbath, he takes, takes all my property and I’ll be poor,
[Rabbi Michael Abraham] Poor is like dead—is that preservation of life? “Poor is like dead,” but that’s, you know, homiletics. To make that into preservation of life, that’s… But it says even the gentiles read it. Yes, the censor wrote that. Okay.
[Speaker D] In any case, is it permitted to kill those people with bombs? What? Someone who burns the bunker.
[Rabbi Michael Abraham] Yes, because he is pursuing property, right. So we talked about that—minor or adult,
[Speaker D] To set a fire—that’s also not directly against a person, no?
[Rabbi Michael Abraham] So we said there is a small chance. So far there hasn’t been, yes, but there is some chance. So the Magen Avraham says there as follows: “It requires analysis—let him allow them to take the money and not desecrate the Sabbath,” regarding those gentiles who besiege the towns. Where does the Shulchan Arukh get such a ruling, that he should let him take the money, that he should not defend himself, should not protect his property, and then won’t need to desecrate the Sabbath? Notice again: he doesn’t ask why he is guilty—how does that permit me to desecrate the Sabbath? So he says: avoid desecrating the Sabbath; stay in the room.
[Speaker C] And this question of desecrating the Sabbath—is that the killing, that’s the Sabbath desecration?
[Rabbi Michael Abraham] Yes, that’s the Sabbath desecration—to kill. But what troubles him is the dimension of Sabbath desecration in the killing, not the dimension of murder, okay? “And it can be said that since a person does not stand by when it comes to his property, we are concerned lest one of them stand against them and be killed, and therefore we desecrate the Sabbath.” Yes, the same logic. “But in the case of an individual person, let him allow him to take his property and not desecrate the Sabbath.” A single gentile comes—not a group of gentiles—a single gentile comes, let him take the property, because here it won’t reach a situation of threat to life, and therefore let him take the property.
[Speaker D] Instead of a football Sabbath, a theft Sabbath.
[Rabbi Michael Abraham] That’s in Texas, yes, that’s Texas football. Anyway: if you kill somebody, Texas will kill you, as was said.
[Speaker B] So the claim is—only here the Jewish law lets them off if it’s something…
[Rabbi Michael Abraham] Wait. Now this is the question. They ask about this Magen Avraham: what’s the difference? In the case of someone breaking in through a tunnel, it’s an individual person. So why not… exactly the same question I asked at the beginning: let him steal whatever he wants, stay shut in the room, and let him go on his way. What’s the permission—I’m speaking now on the Sabbath, let’s leave aside life, that problem we already solved—but what about the Sabbath? That’s the question they ask on the Magen Avraham, and it’s a tremendous difficulty. A tremendous difficulty, because it’s really the same thing. And therefore it’s also unreasonable that the Magen Avraham didn’t think of this, because this isn’t some point somebody brought him from some place and he didn’t think about it for a moment. This is the sugya itself. You’re talking about comparing it to someone breaking in through a tunnel. That’s what you’re talking about. So how can you say that with an individual person, no? The only explanation I found for this matter—I once saw someone who wanted to claim something very far-fetched, I don’t even remember what. The only reasonable explanation I managed to think of in this context is the formulation I said earlier. That is, when a gentile comes and wants to steal from me, he isn’t relying on halakhic protection. He’s not—he’s trying to steal, and he hopes I won’t catch him. He doesn’t know what Sabbath is and what Sabbath isn’t, and whether I’ll keep it or not keep it. Here this is a power struggle: he’s trying to steal; either I’ll manage to defend myself or I won’t. There is no cynical use of Jewish law as a shield here. In such a situation, killing him may be permitted to you, but desecrating the Sabbath is not. Because desecrating the Sabbath is a prohibition—what permission is there to desecrate the Sabbath? After all, you have to give up all your property in order not to violate a prohibition. So let him steal all the money and you won’t have to violate the desecration of the Sabbath. In the case of the thief, we are speaking about a Jewish thief. And here in this case exactly. The Jewish thief comes on the Sabbath. Why does he come on the Sabbath? So we know why he comes. Because he thinks about it—he thinks—he’s a Torah scholar, but not that much of a Torah scholar. That is, he knows the rule that it is forbidden to kill on the Sabbath; he doesn’t know the rule that someone breaking in through a tunnel may be killed even on the Sabbath. He didn’t learn that. He knew—he got only as far as the initial assumption in the daf yomi.
[Speaker D] But already in the days of Joshua the gentiles did this, and the Sages enacted that they should fight on the Sabbath. That doesn’t fit with what you’re saying.
[Rabbi Michael Abraham] No, fighting on the Sabbath is unrelated. Fighting on the Sabbath is about life.
[Speaker D] But I mean about this point, that the gentiles exploit the Sabbath—that already existed from the days of Joshua, and the Sages enacted that they should fight on the Sabbath.
[Rabbi Michael Abraham] No, the Sages enacted it so that such a situation would not come into being.
[Speaker D] Right, but in that you’re saying that the exploitation of the Sabbath already existed.
[Rabbi Michael Abraham] No, there was concern that in the future, if we do not fight, they will exploit it. But that’s not what we’re dealing with here. Here we’re dealing with a given situation. There it’s about a threat to life—they’ll exploit the Sabbath to threaten life. But here no; here we’re talking about a person who comes to steal. Just an ordinary gentile who comes to steal—he isn’t thinking about Sabbath or not Sabbath. He’s saying—he is not coming to exploit the Jewish law; even if he knows we rest on the Sabbath, he isn’t coming to exploit the Jewish law. He doesn’t know what Sabbath desecration even is.
[Speaker B] So the Rosh brought, yes, and this sharp fellow here, he’ll always identify some gentile thief.
[Rabbi Michael Abraham] Fine, so I don’t know.
[Speaker B] He knows all the tricks. Okay.
[Rabbi Michael Abraham] So if we see that such a phenomenon exists, I assume the Sages would have enacted that even the gentile agent may be killed. Let’s check whether he’s a gentile or a Jew. Of course—there will be a religious court; at the entrance there will be a religious court, and if he turns out to be a gentile, then we’ll also have to convert him and then kill him.
[Speaker D] A thief comes to you, you say: are you a gentile? Do you know what Israel is? Okay, he comes in—if he kisses the mezuzah, you…
[Rabbi Michael Abraham] Then he’s a gentile—he kisses the mezuzah.
[Speaker D] You say to him: Rabbi Shimon? If he looks at you…
[Rabbi Michael Abraham] You sound like Tzvika from Yisraeli. Over the years he identifies gentiles by the nose. You see him from the side. I don’t know, I don’t understand these things, but she knows—identifies gentiles by the nose.
[Speaker D] Wouldn’t it have been right to kill?
[Speaker G] Huh? Maybe you should kill by the nose?
[Rabbi Michael Abraham] If you live in a city whose majority is… yes, but we have indications. These are jokes. Obviously there are various indications of who is a gentile and who is a Jew. We can more or less… certainly there will be cases where it’s a gray area. Okay, that’s not… Anyway, so I’m saying: this Magen Avraham, it seems to me that the only explanation I can think of, at least, is this explanation of cynical exploitation. And that strengthens what I wanted to say earlier: that what permits me to violate prohibitions in order to protect property is that Jewish law will not place obstacles in front of me where someone is exploiting Jewish law to create those very obstacles. That is, if you are trying to make cynical use of it—not in our school.
[Speaker C] Can we say that Jewish law is trying to say, regarding a Jew, if the Jew comes to steal and he knows that one may not kill because of… then the law neutralizes itself and you can kill him, whereas a gentile who doesn’t know that—that’s what I said.
[Speaker D] What about something online? I mean, a kind of theft through the internet or something, where you want to defend yourself,
[Rabbi Michael Abraham] So what can you do? You mean desecrate the Sabbath, not kill someone—desecrate the Sabbath online. Internet. If a fish comes to steal your boat, you put up a net.
[Speaker D] How on the Sabbath? If you surf on the Sabbath, you’re not desecrating the Sabbath?
[Rabbi Michael Abraham] No, if you know someone is planning—word gets to you, I don’t know, at 8:20 there’s some plot that’s coming on the Sabbath. Interesting question, I don’t know—interesting question. Publicly, obviously, if it becomes a phenomenon, then it would be permitted to desecrate the Sabbath, no question. The question is whether a private person who knows that they are going—or a business, or whatever—who knows they are going to threaten him, and there there is no danger to life at all, not even the fiction. But on the other hand, according to my interpretation, that is: if you don’t desecrate the Sabbath, you won’t succeed in protecting the property. According to my first interpretation, then it would be permitted here; according to the second interpretation, it would be forbidden here. What do I mean first and second? The first is that I say what needs the threat to life is that without it, you won’t succeed in protecting the property—basically, you kill him in order to protect the property. Why does there need to be some threat from him, some concern that he’ll kill me? Because simply, if there is no threat, you will always be able to save it without killing him. So here in this case, that doesn’t exist, because in this case there is no threat, and from that perspective I will not succeed in saving my property, so it would be permitted for me to desecrate the Sabbath. But if I say you always need… Let me ask another question. The Gemara says—and this is what you asked earlier—the Gemara says, before I read it: Rava said, what is the reason for someone breaking in through a tunnel? It is presumed that a person does not stand by when it comes to his property. And Ameimar said: if I go, he will stand before me and not let me, and so on. That is, a person does not stand by when it comes to his property. So what does that mean? On the face of it, everything I said is not correct. Why? Because the Gemara says—I asked why do we permit him to defend himself in a way that will bring him to the need to kill, especially on the Sabbath. Tell him to stay in the room, let the thief take the money. The Gemara says: but that’s not an option; he won’t listen to me. A person does not stand by when it comes to his property. People come to steal and he immediately defends himself; he doesn’t begin thinking now, wait, there’s Sabbath desecration here, there isn’t. So there’s no choice—you have to assume the person will defend himself, then the other one may kill him, then the law of a pursuer applies, and then you may kill him. The problem is that elsewhere the Gemara says that precisely because a person does not stand by when it comes to his property, we forbid him to do things. For example, a fire on the Sabbath, what you mentioned earlier. The Gemara in the chapter “All Holy Writings” says that if a fire breaks out on the Sabbath, a person may not save property. A person may not save his property in a fire—only food for three meals, and clothing for that Sabbath, or sacred writings. Those are the things one is allowed to do. Why? Because a person does not stand by when it comes to his property. What does that mean, “does not stand by when it comes to his property”? It means that if you allow him to save it, he’ll also begin committing Sabbath desecrations. So you don’t allow him to save it even when there is no Sabbath desecration, because a person does not stand by when it comes to his property. So what do we see? That if you require a person not to save his property, he can indeed stand by that. It’s not that he’ll say, wait, wait, there’s a threat to my life—I won’t think. Here in our case it is written the opposite. Here it says you cannot forbid him to defend himself because he won’t listen to you; a person is agitated over his property. There you say the opposite: because he is agitated over his property, I won’t let him begin saving it. What do you mean? He’s even more agitated over his property—he won’t listen to you, he’ll desecrate the Sabbath and do everything. The opposite—tell him, do this, don’t do that; that is, give him instructions, because otherwise he won’t listen to you if you don’t command him altogether not to save property. So which logic is it? Is the logic this way or that way? So it seems to me, in light of what I said earlier, that this is exactly the point. It’s not really because of this whole line of reasoning that the Gemara says it is permitted to kill someone breaking in through a tunnel. It’s a fiction. The Gemara is trying to show that there is some possible situation in which there would be a threat to my life. That may not be the real logic—I mean, most likely that’s not what will happen. It’s a remote possibility. But that remote possibility is enough to permit it. Why? Because that is not the basis of the permission; it’s not because of that that I permit it. I permit it in order to save the property; because of that I permit harming him. I just need to find some envelope, some framework, to explain why there is nevertheless some justification for it. That’s all. Because otherwise, indeed, “agitated over his property” appears here in the opposite meaning from what we are used to elsewhere. So that is yet another proof of what I said.
[Speaker B] If this is such a strained case, then on the Sabbath it’s weak. What? In the case of someone breaking in through a tunnel on the Sabbath, if you say that’s strained there, that it’s a pretext—if it’s a pretext…
[Rabbi Michael Abraham] In the case of someone breaking in through a tunnel it’s a pretext,
[Speaker B] then the permission on the Sabbath is very weak.
[Rabbi Michael Abraham] Why? On the contrary: I’m saying there is no protection for the thief—not Sabbath desecration and not murder.
[Speaker B] It’s not a pretext, not really—it’s a pretext, it’s sort of…
[Rabbi Michael Abraham] Right. I’m saying basically that what I am doing when I kill him is saving the property. How do I construct here some kind of framework as though there were a threat to life? But it isn’t really a threat to life. So why create such a construction? Because I don’t want to, say, cheapen human life or something like that. But fundamentally the permission is not because of that. The permission to kill him is because he threatens my property. And therefore I really do not need this to be a realistic likelihood; it’s enough for me that it is a remote possibility.
[Speaker B] And for that you permitted Sabbath desecration?
[Rabbi Michael Abraham] Yes, exactly. I’m saying: all the protections that Jewish law gives the thief fall away. Including Sabbath desecration—that too is protection for the thief. He exploits Sabbath desecration in order to steal. So Jewish law says: no, no—nothing that protects you exists. There are no restraints before the homeowner who is defending himself. In the Ran and also in the Yad Ramah, when he brings this logic that a person does not stand by when it comes to his property, he says: certainly not all thieves come over matters of life and death. You can’t assume every thief comes over matters of life and death—that’s not a reasonable assumption. “And if the homeowner stands before him and takes my money, the thief will not kill him immediately.” The thief will not kill the homeowner even if the homeowner defends himself. He’ll run away. And we see, we know, that in most cases even today when a thief comes into a house—it’s scary, everything is true—in most cases the thief will not kill the homeowner. “Rather, it is the homeowner who stands against him in order to kill him if he does not immediately let go of the vessels.” The homeowner won’t be able to hold himself back. That is, if you don’t stop here and I can’t stop you otherwise, I’ll kill you. I don’t see anything else. Before the halakhic permission—we’re talking now about explaining the halakhic permission. Suppose there were no halakhic permission—even if there were no halakhic permission, the homeowner wouldn’t stop; he would kill him if he had to. Okay, now the thief knows this, and therefore the thief will kill the homeowner. And since the thief will kill the homeowner, the homeowner now under the law of a pursuer will kill the thief. Do you understand what kind of pilpul we’re doing here? Obviously this pilpul is not a real assessment of reality. That’s obvious. As we saw there, a person actually can hold himself back. What do you mean, he says a person can’t hold himself back and must defend himself and kill the thief? Here, in the laws of Sabbath we require him to sit quietly, leave the house, leave his whole house to burn. His whole house goes up in flames, understand—it’s not a thief who comes to steal a few things from inside the house. This is a person who is about to lose all his property on earth, and we tell him: be quiet, sit still, go outside with two loaves of bread and some spreads for the Sabbath so that you’ll have something to eat on the Sabbath—and there he does listen to us. So are we not going to tell him that he’ll listen to us to stay in the room and not kill the thief?
[Speaker I] I think the assumption here is that the thief knows what he came for; the homeowner does not know what the thief came for—he…
[Rabbi Michael Abraham] Doesn’t know whether he came to kill or to steal. But the Ran does not say that. The Ran says that even if the homeowner knows—that’s what the Ran says—even if the homeowner knows that the thief will not kill him, he will still defend his property at any price. If he has to kill, he’ll kill too. Now the thief knows that, and therefore we also follow the majority, and the majority of thieves do not come to kill—that is the Ran’s assumption. You can argue with it. No, because the homeowner doesn’t know this specific thief who comes with such knowledge. Right, but the Ran doesn’t go in that direction. It’s a possible explanation; I’m only saying that the Ran doesn’t go in that direction.
[Speaker J] But if I understand, then by the end result of the Ran’s days, most thieves do end up going…
[Rabbi Michael Abraham] In the end, after they understand that I too won’t stand by,
[Speaker J] so how can he say it’s not the majority who go? If not, it would really—he would…
[Rabbi Michael Abraham] He is explaining how the law is created that permits me to kill him. Let’s say there weren’t such a law, and now the Sages are sitting and thinking to themselves how to make this law—not the Sages, the Torah—how to make this law. Let’s say this law didn’t exist; still, you create the situation. Why? Because the homeowner would defend himself at any price, the other one would suddenly know that he will defend himself—not because he is permitted, even though he is forbidden—so he wants to kill him, and consequently the homeowner defends himself. You understand that all this is a distant explanation. I’ll read you the language of the Tur. I have here the language of Maimonides; for some reason I don’t see here the language of the Tur. It’s on the second page—the Tur maybe, on the second page. Ah, it’s on the back. No, no, that’s a draft. I print on both sides. Maimonides says: “Therefore he is killed, whether he was an adult or whether he was a minor, whether male or female.” In most of these cases there is no danger to life for me. A small child comes, or a woman comes, or a person who is weaker than I am—then there is no danger to life. “Therefore he is killed, whether this or that.” Understand: in the law of a pursuer, you need almost complete certainty, complete certainty, that the pursuer will kill the pursued in order for there to be permission to kill him. Here you need complete certainty that he will not come to kill me in order not to kill him—like a father. Right? When the father comes in the case of someone breaking in through a tunnel, there is complete certainty he won’t kill the son, and then indeed it is forbidden to kill him. Now if so, then clearly this is not the law of a pursuer. If it were the law of a pursuer, then you would need near certainty that the pursuer will kill in order to permit killing him. But in the laws of someone breaking in through a tunnel it works the opposite way. In the laws of someone breaking in through a tunnel, for there to be a prohibition to kill, you need certainty that he will not kill you. Why? It’s clear that this is what I said earlier: I kill him in order to save the property. True, they did not permit it unless there is some small chance that he will kill me, but that is not the reason why I may kill him. That is not the reason—it’s an excuse. That is, I expand the laws of preservation of life and I say: this too is preservation of life. But it isn’t really preservation of life. I expand it in order to allow a person to defend his property. I’ll bring a few more proofs.
[Speaker I] Even though with a child the assumption is that you can stop him and take the money without killing him. Right—what you can…
[Rabbi Michael Abraham] There is a remote concern that you won’t succeed. Maybe it’s an older child; maybe he has a gun in his pocket. You can always try—you don’t want to. Right. Right, right. By the way, there is a dispute about this. There are halakhic decisors who say that you do not need to save him by injuring one of his limbs, even if I can. Someone breaking in through a tunnel is different from a pursuer. I’ll get to that in a moment. There is a question.
[Speaker B] It comes out that here it is permitted to kill because it is close to protecting the property, but to save my life I am forbidden to steal. From Rashi, right.
[Rabbi Michael Abraham] Right. I am forbidden to commit transgressions, but if someone comes to harm me, I may do anything in order to defend myself. The opposite. I’m saying these are two sides of the same coin. Just as I may not harm property in order to save my life, I may kill someone who comes to harm my property. I said, if I remind you of the context—the context in which I opened—I said there are two laws facing each other: saving oneself with another person’s life, where one must be killed rather than transgress, and the law of a pursuer, where there is ostensibly a contradiction between them. And I said there is no contradiction, because the pursuer created the situation and all the explanations I gave there. After that I showed that in the two extreme situations we do not make calculations at all of level, intensity, and which value of life one must save, or what value of life one may harm in order to save. So if it is saving oneself with another person’s life, you may not harm the other person even if the value of his life is the very minimum of the minimum—even a fetus. Okay? And then I said: and even property, as Rashi says. Therefore I may not harm another’s property in order to save life. To that extent we make no distinctions. That is the other side of the coin; it is not a contradiction, it is exactly the same thing. The other side of the axis is that if there is pursuit—not “saving one’s fellow,” but the other side of the axis—then again we make no distinction between property and life. Pursuit after property, pursuit after lives—it makes no difference. Once you are on the pole of pursuit, then I will kill you if I need to. If you are on the side of someone saving himself through the property or life of another, then I may do nothing at all, not even harm property, because he is not guilty and I cannot use him to defend myself. On the contrary—two sides of the same coin.
[Speaker B] Does someone breaking in through a tunnel apply only to my property? Say I’m sleeping at my friend’s house and then suddenly a thief comes?
[Rabbi Michael Abraham] No, what are you talking about? No. What does it say explicitly? No, anyone. Anyone? Yes. And from the fact that the Gemara brought—I brought this—from the fact that the Gemara brings a verse in order to include anyone, that is another proof of what I’m saying. Because in the law of a pursuer you don’t need that, and the Gemara also does not bring a verse. The law of a pursuer is usually about a third party. A third party shoots the pursuer in order to save the pursued, and nobody would ever think to say that this applies only to the pursued and not to a third party. And suddenly, in the case of someone breaking in through a tunnel, you need a verse so that someone else can do it too. And why? Very clearly, because the person himself can decide that he is defending his property, and then you get into the whole chain I described earlier. But a third party—what permission is there for him to kill in order to save property? I have the right to defend my property even if that brings me to the need to kill him, but that other fellow cannot know—maybe I’ll decide to give up, and I’ll stay in the room and I won’t fight with him and there is no danger to life at all. Why are you interfering? So the Gemara says no—that is, they learn from a verse that even a third party, but you need a verse. Meaning, it is not self-evident.
[Speaker I] It comes out that if a child enters my house, if my working assumption is that he came to kill me, I am forbidden to kill him because I can overpower him, but if he came to steal—a bazooka—then I’m allowed to kill him.
[Rabbi Michael Abraham] Yes, that’s what comes out. Strange. No, because what happens when he comes to kill…
[Speaker I] You,
[Rabbi Michael Abraham] then it is obvious to him that you have no halakhic protection.
[Speaker I] He doesn’t, yes.
[Rabbi Michael Abraham] I understand. But you, the one saving… Exactly. That proves exactly what I said earlier about cynicism. If you make cynical use of Jewish law, then there is no Jewish law. That is, if you do not make use of Jewish law, then the rules of Jewish law operate, so one has to decide what is permitted and what is forbidden. But someone who comes to steal property is trying to use Jewish law because he thinks that for property we won’t do it.
[Speaker I] And his life depends on it, yes, yes. Because you could have come and said that in such a case also, try to save by injuring one of his limbs.
[Rabbi Michael Abraham] But there are halakhic decisors who say no. That’s another proof of what I said earlier. I’m not saying it must be so, obviously. There are halakhic decisors who say that too. But I’m saying this is another proof for the conception I’m proposing here. In Maimonides, this matter of someone breaking in through a tunnel appears in the laws of theft, not in the laws of guarding life. Again, I would have expected it to appear within the framework of the laws of a pursuer, in chapter 1 of the laws of murder and guarding life. It’s an indication. What?
[Speaker I] But in the portion of Mishpatim it comes in the context of theft.
[Rabbi Michael Abraham] Right, right. Like in the verses. Right. In the Torah portion itself you can’t always infer from the context in which it appears, but in Maimonides it is even a principle. Maimonides places a law somewhere, and we’ll see later—really in the next class, I think—we’ll see an example of this. When Maimonides places a law in a certain place, that is an indication of how he understands it. Because he says it. He thought about every law—where exactly to place it. There are different legal conceptions if it is found here or if it is found there. The fact is that he places it in the laws of theft, not in the laws of murder and guarding life. So that too is a certain indication. Also in commandment 239, in the commandments as well, Maimonides writes: “It is the commandment by which the Torah instructed us regarding the law of the thief, that we fine him—either double payment, or payment of four and five, or we kill him if he comes by tunnel, or we sell him to be sold.” There is a list of laws concerning a thief, and not even the last among them and not the first, but one in the middle—namely, that we kill him when he comes by tunnel. This is a law of the thief. That is, when you come to threaten my property, I am permitted to defend myself against thieves even by killing. This belongs to the laws of theft; it does not belong to the laws of guarding life. Now Maimonides writes something else regarding someone breaking in through a tunnel. Maimonides writes, Laws of Theft chapter 9: “Regarding someone breaking in through a tunnel, permission is granted to anyone to kill him.” No—my emphasis is on “permission,” not on “anyone.” “Permission is granted to anyone to kill him.” Compare his words to the laws of a pursuer, Laws of Murder chapter 1. First of all, it is located in different laws, as I said earlier. Notice the formulation. “All Israel are commanded to save the pursued from the hand of the pursuer, even at the cost of the pursuer’s life. This is a positive commandment not to spare the life of the pursuer.” Do you understand the difference in formulation between a commandment and a permission? What is permission? This is a commandment, isn’t it? It’s danger to life, no? Absolutely not—no danger to life. You have permission; if you want to defend your property, no problem—the Torah does not forbid it to you. If you want not to defend yourself and let him steal in order to spare human life, you may perhaps receive the President’s Volunteer Award, but you are not obligated. Okay? You have permission to defend yourself. And this is very rare, by the way—I think I mentioned this—in matters of life and death, that there is such a thing called “permission.” In matters of life and death, either one is obligated or one is forbidden. What is permission? You have permission to kill? What is this, James Bond 007—he has a license to kill? What is this? No—either you are obligated to kill, and then of course kill, or it is forbidden. There cannot be a middle state. But no, here there can be a middle state. Why? Because the permission is to defend the property, not to kill. But if in order to defend the property I need to kill, then I have permission to kill as well—but of course I also have permission not to kill. I can let him steal the property, not kill him, and go to the police afterward and say, fine, let the property go. So that’s also possible. Therefore Maimonides does not say this is a commandment, because there really is no commandment here. If it were a pursuer, it would be a commandment; it would not be a permission. Could it be that he means that in his view one should save him by injuring one of his limbs? I didn’t understand. That too, with a pursuer…
[Speaker D] is also like that.
[Rabbi Michael Abraham] Then why in the case of a pursuer does he say it is a commandment? There too I can save him by injuring one of his limbs—let him do that. In the next phrase Maimonides says: “Permission is granted to anyone to kill him by any death that they can put him to death with.” Okay? By any death—not only by the sword. It’s not clear what… and in the law of a pursuer is it also like this? Permission by any death, not only by the sword? I would have thought I need only to engage him in some sort of duel with a sword—what kind of thing is this? I need to defend my life, don’t I? No. Because in the law of the thief, killing the thief has some punitive dimension for the theft, and there would have been room to say that maybe this is only with a certain death that the Torah established. So Maimonides says no: you may kill him by any death because you need to defend your property.
[Speaker B] Execution is within the framework of a religious court, whereas with a pursuer also not.
[Rabbi Michael Abraham] Also with a pursuer and also with someone breaking in through a tunnel, no. So why with a pursuer does Maimonides not trouble himself to note that it is by any death or something like that, while with someone breaking in through a tunnel he does? Because there was an initial assumption that with someone breaking in through a tunnel it would not be by any death, since this is not really rescue but, I don’t know, perhaps only punishment or something like that. And on that he says no—by any death. There is an innovation that here too it is by any death.
[Speaker J] Isn’t that from the Gemara? What—the Gemara?
[Rabbi Michael Abraham] Yes, yes, the Gemara brings it. The Gemara brings a verse for it, and that is the question in the Gemara too. The question is why they bring such a verse.
[Speaker B] Right, because in both cases you are also the judge and also the religious court and also the executor.
[Rabbi Michael Abraham] Right, right. But in both cases—and still Maimonides distinguishes between them, that’s my point. Like what I said earlier about certainty. And now with respect to a pursuer, Maimonides says this: if possible, one must warn him. Yes, Laws of Murder chapter 1: if it is possible to save the pursued by injuring one of the limbs of the pursuer, it is forbidden to kill the pursuer. And if possible, you also need to warn him. If possible; if you can’t, then not. But if possible, you must warn him. The Gemara and Maimonides do not mention these qualifications with respect to someone breaking in through a tunnel—not that you can save him by injuring one of his limbs, and not the need for warning. Now there are decisors who bring this, but it does not appear in the Gemara and not in Maimonides—only with respect to a pursuer and not with respect to someone breaking in through a tunnel. And indeed there are decisors who inferred from here that one need not warn in the case of someone breaking in through a tunnel—neither warning, nor are you obligated to save him by injuring one of his limbs even if you can. What’s the difference? Here he comes for property and there for life, so is this more severe? The answer is yes. Because one who comes for property is using halakhic protection. There are no halakhic protections—do with him what you want; he has no blood. As the Torah itself says, he has no blood; his flesh is like the beasts of the field. The pursuer is not using halakhic protections. The pursuer knows that if I can, I will defend myself. So there, fine—make sure you need to, and if you need to, then do it; but make sure you need to. There is no collapse of all the halakhic walls here. Again, an indication of cynical use.
[Speaker I] And because Jewish law determined that he has no blood, then the thief knows—it’s as though when he comes, he studied in kollel.
[Rabbi Michael Abraham] It’s always like that. The question is whether a law destroys itself after it exists and everyone knows it. This is a question that comes up in many yeshivas.
[Speaker I] I assume with a pursuer, the pursuer knows they can kill him.
[Rabbi Michael Abraham] No, he doesn’t know this law. People know that a person knows the other will defend himself; he won’t hand himself over to die. You don’t have to be a Torah scholar for that—everyone understands it. I just want to conclude with an additional law that goes in a similar direction, and it is a really surprising law. It’s a Gemara in tractate Bava Kamma, a fairly laconic Gemara, and from it emerges that it is possible to kill an informer. Someone who hands over Jewish property to gentiles—it is permitted to kill him, and perhaps it is even a commandment to kill him. Now this is very… it appears there, by the way, and it isn’t clear whether this is some incident that happened or something like that; it’s not entirely clear what its halakhic status is. Halakhic decisors bring it as practical Jewish law, including Maimonides and the Shulchan Arukh. There are capital cases nowadays—it is permitted to kill an informer. Rabbi Eliezer of Metz—I’m reading in the name of the purchaser—I’m reading the Haggahot Maimoniot on the laws of theft.
[Speaker G] Is this a concern for the public?
[Rabbi Michael Abraham] Wait a second, we’ll see in a moment. Rabbi Eliezer of Metz would compare the matter of the informer to someone breaking in through a tunnel—the informer, yes—“because a person does not stand by when it comes to his property, and therefore it is permitted to kill him, as we say in the last chapter of ‘He Who Steals,’ and so too it appears in the Jerusalem Talmud, chapter ‘The Rebellious Son.’” So here again, “a person does not stand by when it comes to his property,” the same reason as regarding someone breaking in through a tunnel. In a responsum of the Rosh, responsum 17, in two places in responsum 17: “Therefore, the practice has spread in all the Jewish communities that when there is an informer established in this conduct, who three times informed against Jews or their property into the hands of violent men, they seek counsel and stratagem to punish him”—and in the Venice edition, “to remove him from the world”; “to punish him, to remove him from the world,” there are two versions—“because of safeguarding the matter, so that others will speak and there will not be many informers in Israel, and also to save all Israel who are pursued under his hand.” There are medieval authorities and halakhic decisors who understood that again this is concern for future danger to life, but in the Rosh it is not written that way. In the Rosh it is written that it is permitted to kill him because of the danger to my property. He gives two reasons; one of them applies even to an individual person. The second says there is some concern that he is going to pursue all the Jews—I don’t know whom he’ll take and whom he won’t—but it is a public concern. That perhaps is easier to understand; we once discussed the status of the public. But his first reason says that because he threatens my property, it is permitted to kill him, if he is established as being such a person. What does that mean—why? Because if he is established as such, then clearly he is a cynic. If he is someone who does it once, I don’t know, perhaps his impulse overcame him, I don’t know what happened. But if this is his way of life, then he is basically using halakhic protection plus, of course, the protection of the gentiles, so that we will not need to defend ourselves against him. Now in such a situation Jewish law removes all the protections—it is permitted for you to kill him, an ordinary Jew. He is not threatening you at all; he is threatening everyone in Israel—kill him. He’s not threatening you? You know of someone who is an informer—kill him. Even if he is not threatening you right now in any way? Yes, that’s how it is. No, obviously not—don’t forget that we are talking here, obviously this is…
[Speaker D] not applicable in a place where there is a legal system. We’re talking about the Gemara; by then there was no Sanhedrin anymore…
[Rabbi Michael Abraham] There was no legal autonomy. Obviously in a state or…
[Speaker D] in a place where there is an orderly legal system, you don’t do things like that. Take him to court. But there the legal system belongs to the gentiles, to whom he hands over the property. You are here as a persecuted minority; you need to develop ways to defend yourself without the help of the legal system. Now here he’s talking about an informer who gives information—like Vanunu, a spy or something like that—which could cause danger to life? So the state—but again, it’s not me as a private individual. Are you allowed to kill a person because he is informing information involving danger to life?
[Rabbi Michael Abraham] No, because the state needs to do that, not me. The state is permitted. When there is no system—when there is no system—then in that situation all the more so…
[Speaker D] if you’re talking about property, then all the more so about…
[Rabbi Michael Abraham] someone who informs against lives.
[Speaker I] Right. “All the more so” doesn’t always work from property.
[Rabbi Michael Abraham] Right. Someone who informs against lives—it is certainly permitted to kill him. The dispute among the medieval authorities here is whether even for someone who informs against property. But the fact that there is such a view—that even for someone who informs against property one may kill—strengthens what I said earlier: that from the standpoint of Jewish law, there is at least room for an American-style interpretation. In my opinion it is even the more reasonable interpretation, this interpretation that says that when I kill the thief, I do it as protection of the property and not because he creates a threat to my life.
[Speaker D] And someone who helps BDS? What?
[Rabbi Michael Abraham] BDS. If you help BDS, then what—you studied in Jerusalem? No, if you help, then you won’t study. But if that’s your opinion, then you can study there—that’s what the court said, and obviously that’s correct. Okay, that’s it.