Lecture from the 9th of Adar, 5767
This transcription 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
Table of Contents
- The reality of theft, police, and law
- Comparisons to famous cases and American law
- Moving to a halakhic and systematic analysis
- The Torah verses and the plain reading of the tunnel burglar
- The Mishnah in Sanhedrin: “judged based on his end” and kim lei be-derabah minei
- Comparison to the law of a pursuer and Afikei Yam
- Maimonides in Sefer HaMitzvot and framing it as punishment for the thief
- The Talmud: presumption, “if someone comes to kill you, rise early to kill him,” and grounding the permission in danger to life
- Baraitot on “the sun shone,” doubt, and the distinction between a father against a son and a son against a father
- Maimonides’ ruling in the laws of theft
- The central difficulty: danger created only if one confronts him to save property
- Two interpretations of “a person does not hold himself back over his property” and the difficulty from the laws of the Sabbath
- A normative interpretation: there is no obligation to sacrifice property in order to save the attacker’s life
Summary
General overview
The text presents an intuitive sense of outrage at a police-legal approach according to which, if there is no danger to life, a person may not use deadly force against a thief—even when thieves can stand right in front of him and load up his property. From there it moves to a systematic analysis of the law of the tunnel burglar in the Torah, the Mishnah, the Talmud, and Maimonides. The speaker argues that on a simple reading of the Torah verses, it appears that there is permission to kill a thief during the break-in in order to prevent the theft. But the Talmud qualifies that permission and bases it on a presumption that the thief will kill if someone resists him, using the rule, “If someone comes to kill you, rise early to kill him.” He then raises a fundamental question: if the permission depends on danger to life that arises only when the homeowner chooses to confront the thief in order to save his property, then has permission to kill in defense of property effectively slipped in through the back door? He proposes two ways of understanding this—either as a psychological explanation, that “a person does not hold himself back over his property,” or as a normative explanation, that a person is not required to sacrifice his property in order to save the life of the one threatening him.
The reality of theft, police, and law
The text describes a situation in which a police commander says that what should have been done in the face of thieves was simply “to let them steal” and not intervene. The speaker presents this as an absurdity: thieves can come in broad daylight with a truck, load up property right before his eyes, and even ask for help, while the homeowner has no legal option to do anything. The text gives examples of damage to property, like slashing four tires, and also mentions a case in which the police were contacted online and did not arrive. The speaker sharpens the claim that the prohibition on acting is not just a matter of practical inability but a principled prohibition, and explains that, as he understands it, “if your life is not in danger, you categorically may not shoot,” so that a thief could theoretically stand there with a sign saying, “Sir, we will not shoot you,” and load up your property with no permission to fire.
Comparisons to famous cases and American law
The text mentions a case of a man at a train station who shot four Black men and got into trouble with the police, adding that “it turned out he was also Jewish,” as part of a comparison to discourse about the boundaries of self-defense. It mentions “Shai Dromi” and raises the claim that in a certain situation “the land wasn’t registered in his name in the land registry,” so that “even under American law he couldn’t shoot.” It also raises an example of forcing a person out of his car at gunpoint, and discusses whether that counts as danger to life. The text mentions “urban legends” about burglars who were hurt in a house and sued for compensation, and raises practical questions such as connecting window bars to 220 volts and leaving poisoned food in dormitories, with the comment that “they said no,” along with a cynical reply that a police officer will always say “no.” But the text also presents the story of Shai Dromi as an example of how “they’re making his life miserable,” and describes the institutional attitude toward him as if he were “some total murderer.”
Moving to a halakhic and systematic analysis
The speaker says that up to this point these are only “initial intuitions,” and that Jewish law also seems, on the face of it, to have a very similar approach. But he wants “to argue that not quite,” and to begin dealing with the issue “more systematically.” He opens with the biblical source of the tunnel burglar and seeks to understand the phrase “if the sun shone upon him,” and the scope of the permission to kill a thief during the break-in as opposed to after the theft is already in his hands.
The Torah verses and the plain reading of the tunnel burglar
The text cites the verses: “If the thief is found breaking in and is struck and dies, there is no bloodguilt for him,” versus “If the sun shone upon him, there is bloodguilt for him,” and suggests that in the plain meaning of the verses, one may kill a thief while he is entering the house in order to prevent the theft, but after he has left with the property, one may not “take the law into one’s own hands.” The speaker notes that he saw that Rabbi Yosef Bekhor Shor interprets “if the sun shone” literally—after the thief has already gone out—and explains that it seems reasonable that one does not kill a person in order to recover property already in his possession, but rather turns to legal means. He lingers on the wording “and is struck and dies” as language that sounds post factum, but still exempts the killer from punishment, and emphasizes that from the Torah alone one gets what seems to be an “American-style approach.”
The Mishnah in Sanhedrin: “judged based on his end” and kim lei be-derabah minei
The text brings the Mishnah in the chapter of the rebellious son, and the following Mishnah about the tunnel burglar, where it says, “One who comes through a tunnel is judged based on his end,” and raises the difficulty that the term “judged” belongs to judges, not merely to a private right of self-defense. It quotes the continuation of the Mishnah: “If he came through a tunnel and broke the barrel, if he has bloodguilt he is liable; if he has no bloodguilt he is exempt,” and explains that the exemption from paying damages rests on kim lei be-derabah minei, which hints that the killing is being treated as a death penalty and not merely as defensive permission. The speaker suggests that the Mishnah chose specifically to bring the case of the broken barrel in order to reveal the nature of the killing as punishment, and argues that this creates another intuitive difficulty about incentives: the thief must return the stolen property, but is exempt from damages for the vessels he broke.
Comparison to the law of a pursuer and Afikei Yam
The text brings the view of Afikei Yam regarding the law of a pursuer: according to him, the exemption from paying damages when the pursuer breaks vessels stems from the fact that killing him is “the execution of a death sentence,” because if he were to succeed in killing, he would then be judged in court and sentenced to death—so “why wait?” The speaker notes that this approach is problematic, and raises the difficulty of a “minor pursuer,” who is not punishable in court and yet it is still permitted—and obligatory—to save the victim even at the cost of killing the pursuer. He also links this distinction to the law that one must save him “through one of his limbs” if possible. He notes a consequence brought by halakhic authorities and by Maimonides, that ideally “one should try to kill the pursuer with a sword,” as the death of a murderer, and develops a discussion emphasizing that saving the pursued alone seems to provide a necessary permission even without a framework of punishment.
Maimonides in Sefer HaMitzvot and framing it as punishment for the thief
The text cites Maimonides in Sefer HaMitzvot, commandment 239: “that we fine him with double payment or with fourfold or fivefold payment, or kill him if he comes through a tunnel, or sell him,” and emphasizes that according to Maimonides the killing of a tunnel burglar belongs to “the laws of the thief” as punishment for theft and not to the law of a pursuer. He notes that Maimonides places the laws of the tunnel burglar in Hilkhot Geneivah, chapter 9, and not in Hilkhot Rotze’ach u-Shemirat HaNefesh, where he discusses a pursuer, and attributes to Rabbi Shach in Avi Ezri the conclusion that this is “punishment for the thief.”
The Talmud: presumption, “if someone comes to kill you, rise early to kill him,” and grounding the permission in danger to life
The text brings Rava’s statement: “There is a presumption that a person does not hold himself back over his property,” and the thief says, “If he stands against me, I’ll kill him,” and summarizes that the permission to kill is built on a future threat that the thief will create if the homeowner resists him. The speaker emphasizes that the phrase “If someone comes to kill you, rise early to kill him” appears here as a central foundation, and notes that in his view it has no other source, and that in the law of a pursuer it is not used in this way. He formulates the central point of the dispute as it emerges from the Talmud: there is no permission to kill in order to protect property as such; the permission exists only because of danger to the life of the homeowner if he confronts the thief.
Baraitot on “the sun shone,” doubt, and the distinction between a father against a son and a son against a father
The text quotes two baraitot that seem opposite: one says that if “it is clear to you like the sun that he has no peace with you, kill him; and if not, do not kill him,” while the other says that if “it is clear to you like the sun that he does have peace with you, do not kill him; and if not, kill him.” It explains that the Talmud resolves this by saying: “Here it is a father against a son; here it is a son against a father.” It concludes that according to this resolution, a father who comes through a tunnel against his son is not killed because “certainly he would not kill him,” whereas a son who comes against his father “is killed even in doubt.” So ordinarily, in a case of doubt one kills, unless this is a relationship in which peace is clearly presumed. He connects this to the difference between Israeli law and the halakhic understanding: under the law, a clear indication of danger to life is required in order to permit killing, whereas in Jewish law a clear indication of peace is required in order to forbid it, and in an ordinary case “any other case” remains under a presumption of danger.
Maimonides’ ruling in the laws of theft
The text quotes Maimonides: “And why did the Torah permit the blood of the thief, even though he came over money matters? Because it is presumed that if the homeowner stands before him and prevents him, he will kill him… and thus this one is… like a pursuer,” and emphasizes that Maimonides permits killing “whether he was an adult or a minor, male or female.” It quotes the limitation: if “the matter is clear… and he came only over money matters, it is forbidden to kill him,” and if one killed him, “this person is a killer.” It then cites the application: “Therefore, a father who comes through a tunnel against his son is not killed… but a son who comes against his father is killed even in doubt.” The text raises questions about whether the presumption fits reality and about the mutual awareness of father and son of the danger, but concludes this section with the statement that the halakhic conclusion is that the permission depends on danger.
The central difficulty: danger created only if one confronts him to save property
The text returns to the picture with which it opened: a thief could theoretically “come with a sign saying, ‘I’m not killing you,’” and load up property. The speaker formulates the fundamental difficulty as follows: the halakhic permission to kill is based on danger to life, but that danger arises only because the homeowner chooses to get up and struggle in order to defend his property, whereas he could simply “stay asleep” or avoid the confrontation. He concludes that indirectly, “this whole business of killing in order to protect property” does enter after all, even though the Talmud sets a condition of danger to life, because the Torah does not obligate the homeowner to avoid the confrontation.
Two interpretations of “a person does not hold himself back over his property” and the difficulty from the laws of the Sabbath
The text proposes a first interpretation according to which this is a psychological assessment—that a person cannot forgo his property, and therefore the Torah gives legitimacy to self-defense. But the speaker rejects this and brings proof from the Talmud in tractate Shabbat regarding a fire: the Sages forbid saving property lest one come to extinguish the fire, which implies that a person is in fact capable of withstanding the loss of property, even if it is difficult. He notes a counterclaim about the difference between a thief, which creates a sense of “being a sucker,” and a fire, which is “an act of fate,” but argues that in reality Israeli law is applied and people do manage to refrain from shooting, so there is no necessity to say that the Torah permitted killing only because of psychological inability.
A normative interpretation: there is no obligation to sacrifice property in order to save the attacker’s life
The text proposes a second interpretation, according to which “a person does not hold himself back over his property” is a normative statement—that a person has the right to stand up for his property. He compares it to a case of someone threatening with a gun: “If you don’t give me a shekel, I’ll kill you,” where it is agreed that one may kill the assailant even though one could save oneself by handing over the shekel, because the assailant created the equation, and you are not obligated to give him money in order to save his life. He expands this through the words of Kli Chemdah about Zimri and Pinchas, according to which Zimri would be exempt if he had killed Pinchas, even though he could have stopped sinning and saved himself, because “I may be obligated… to the Holy One, blessed be He,” but “I’m not obligated to do that for you.” From here he sketches a principle: what you are not obligated to do for another person, you are not required to do even if the price is the attacker’s life. He concludes that proof from the case of “the shekel” is not decisive for the tunnel burglar, because there the threat is immediate, whereas with the thief the threat arises only if one confronts him. Still, he presents this line as a sensible basis for understanding the permission, and says that the continuation of the analysis will be “next time.”
Full Transcript
[Speaker B] And the shtick—
[Rabbi Michael Abraham] He’s forcing them to compensate him, to return his stolen property to him. That’s his only chance of ever seeing any of that property again. Meaning, there’s just no other chance. And against that background, the police commander there comes and tells him that what he should have done was just let them steal, that’s all—and not intervene. So beyond the fact that it’s outrageous, maybe I’ll paint it in an even more extreme way: thieves can come in broad daylight, with a big truck, come to my house, load up the whole house, and ask me to help them.
[Speaker B] I also heard that happened at another house. Yes, and they contacted the police online and they didn’t come.
[Rabbi Michael Abraham] In any case, thieves can come in broad daylight—meaning, come to my house, start loading up the whole house, ask me for help, I don’t know. I mean, absurdities can go on forever. I can be holding a cannon in my hand—it makes no difference. There’s nothing I can do. They’ll just stand there and load up my whole house, and there’s nothing I can do. What I’m supposed to do is just let them steal. On the face of it, that seems to me outrageous in the intuitive sense.
[Speaker C] Has nothing ever been stolen from the Rabbi? Here on the street they slashed four of my tires. A few days later it happened to our neighbor too.
[Rabbi Michael Abraham] Did you catch them? Was there something you could have done and didn’t do? The fact that sometimes things happen to us and there’s nothing we can do—that’s one thing. But that’s not what we’re talking about here. We’re talking about people who can come right before your very eyes; you have the means to threaten them, to deal with them, but you’re forbidden to do anything. Meaning, you just have to stand there and watch. Right in front of your eyes they can load up your whole house, and there’s nothing you can do. The police commander tells you: let them steal everything. Simple as that.
[Speaker B] No, but he—
[Rabbi Michael Abraham] —is entrusted with law enforcement. Meaning, if he says that’s what we’re supposed to do, then it’s something even far more outrageous. Maybe that’s just his own police mindset. But what do you mean, his own mindset? I don’t assume he invented it. I assume that’s how he understands the legal instructions are to be applied. Meaning, I’m not a lawyer, I’m not expert in the rules here, but it seems to me—from what I understand of the legal rules—that if your life isn’t in danger, then categorically you’re forbidden to shoot. You’re forbidden to shoot. And once there’s no danger to life, they can stand there with a sign saying, “Sir, we’re not going to shoot you,” and load up your whole house. According to the law, you’re forbidden to shoot.
[Speaker B] Are you allowed to remove them from the house?
[Rabbi Michael Abraham] Remove them? Try pushing them. That’s certainly allowed. Try pushing five people. One at a time.
[Speaker B] One at a time.
[Rabbi Michael Abraham] And meanwhile the other four will tie you to a tree.
[Speaker B] Then I’m already in danger.
[Rabbi Michael Abraham] No, no danger. Somebody said two—
[Speaker D] Two.
[Speaker B] But—
[Rabbi Michael Abraham] They tied you to a tree. You’re in no danger at all.
[Speaker B] After they tied me to a tree they can do anything.
[Rabbi Michael Abraham] But before that.
[Speaker C] In short, there’s a legal outlook here of Goetz, only here it’s inside your private property. In private property. A man sitting at a station, in a train station—that same Goetz, that same person that four Black guys approached—he shot all four of them, killed three, one stayed alive, and then he got in trouble with the police. He had a trial. He got off with some kind of symbolic fine because he didn’t have a license.
[Rabbi Michael Abraham] And they sued—
[Speaker C] —him. And it was a very famous case. Here in Israel too people talked about it a lot. Yes, I don’t know, it turned out he was also Jewish, on top of all the other troubles.
[Rabbi Michael Abraham] American law, as far as I understand—again, I haven’t checked the—
[Speaker C] details, but specifically in the case of that Shai Dromi, the land wasn’t registered in his name in the land registry. Meaning that even according to American law he couldn’t shoot. And if robbers force you out of your own car, you also can’t shoot. No, no—it happened. They pull a person out of your car at gunpoint and say, “If you don’t get out, I’ll cut you up.” So it’s exactly the same absurdity, exactly the same absurdity.
[Speaker B] What? I didn’t understand. They tell you what, “if you don’t get out”? Car thefts are done by a method where if—
[Speaker C] If you don’t get out, I’m driving off with your child who’s inside the car too.
[Speaker B] Well then there’s danger to life. You’re allowed to shoot.
[Speaker C] No.
[Rabbi Michael Abraham] No, not danger to life. You can leave. Leave with the child?
[Speaker B] No, that’s what they’re threatening, that’s what they’re threatening, yes.
[Rabbi Michael Abraham] He wants you to leave.
[Speaker B] One thing’s for sure: if you pull out a gun and shoot him, you’ll be arrested immediately, right there on the spot.
[Rabbi Michael Abraham] Being arrested is something else. Of course you should be arrested, there’s no problem. A person shot and killed someone—you have to check what happened. I think that’s how it should be. But the question is what the principled instruction is for a person in that kind of situation. Meaning, as far as I understand, American law on this issue is much harsher—at least within your own property—and American law lets you, at least after a warning, I don’t know exactly. Again, I haven’t checked the details. There are all kinds of urban legends here about people who even sued for compensation—burglars who broke into a house and got hurt by something, and then sued the homeowner for damages.
[Speaker B] What did they sue for?
[Rabbi Michael Abraham] I don’t know.
[Speaker C] Whether it really happened—I don’t know, maybe urban legends—but there are stories like that there. What, search Google for urban legends.
[Rabbi Michael Abraham] Okay, so apparently—I don’t know if it’s really to that extent, I don’t know if it happened—but there are urban legends like that.
[Speaker C] In any case, back to the point: under the Dromi law, to defend the house against thieves by means that could kill the thief, or kill him de facto—why not simply connect the bars on the windows in my fourth-floor apartment to 220 volts?
[Rabbi Michael Abraham] So that’s it—someone told me that’s forbidden. Is that true?
[Speaker C] Is that checked? Checked.
[Speaker D] Another thing: in the student dorms once people were taking food from the refrigerators, private food, and I checked whether you could leave poisoned food. They said no. Is that an offense?
[Speaker B] I don’t get it. There’s police here. The police—why are you shocked, yes? That’s how it is. If you ask a police officer whether it’s allowed, he’ll tell you no. If you do it, they won’t do anything to you. So there, you see. What?
[Speaker D] They’re making his life miserable.
[Speaker B] Dromi’s.
[Rabbi Michael Abraham] Try it and let’s see whether they do nothing to you. In the meantime, I see they’re doing plenty to him.
[Speaker B] There are, what can you do, low-quality people there, may God remember Leibowitz.
[Rabbi Michael Abraham] No, what is this “may God remember Leibowitz”? Leibowitz isn’t the only person in the country. There’s something here that apparently really is anchored in law. She didn’t invent it. Maybe she could be more empathetic or less empathetic, but she didn’t invent it.
[Speaker B] I—
[Speaker C] think there’s no reason to attack her over it.
[Rabbi Michael Abraham] Fine. But in principle I don’t think this is something she just made up. Meaning, there’s a legal background here that apparently allows this. You see it in the police too, you see the attitude—the attitude toward him as though he were some total murderer from the standpoint of the establishment. It’s simply outrageous, it’s not… Now again, these are all initial intuitions before even entering the topic. I’m just presenting the issue. Because ostensibly Jewish law too has a very similar approach. We’ll see in a moment. But I want to argue that not quite. So let’s try to deal with the issue a bit more systematically. Let’s begin perhaps with the Torah portion, the first source, the passage of the tunnel burglar. “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.” This source, the passage of the thief: “If the thief is found breaking in and is struck and dies, there is no bloodguilt for him. If the sun has shone upon him, there is bloodguilt for him; he shall surely pay. If he has nothing, then he shall be sold for his theft. If the stolen item is found alive in his hand, whether ox or donkey or sheep, he shall pay double.” Meaning, it seems that the Torah here is speaking, on its face, about a thief who comes to steal from me and is found breaking in, and if he is struck and dies, there is no bloodguilt. Meaning, I’m allowed to kill him. On the face of it, in the Torah it looks like there’s an American-style approach here. Meaning, someone who comes to steal from me—I’m allowed to kill him. That’s what it says, at least: there is no bloodguilt for him. That expression perhaps has a slight smell of after the fact, but I’m not punished for having killed him. True, “if the sun has shone upon him, there is bloodguilt for him; he shall surely pay. If he has nothing, then he shall be sold for his theft.” What does it mean, “if the sun has shone upon him”? That’s the question. “If the sun has shone upon him”—when I first read the verses, and afterwards I saw that Rabbi Yosef Bekhor Shor really does interpret it this way—I think that’s the plain meaning of the verses. “If the sun has shone upon him” means after he’s already gone out. Meaning, once my property is already in his hands, I can’t go and take the law into my own hands and kill him. That’s already gone. At that stage I have to file a complaint with the police, I don’t know, go to court, and try to recover my property through legal means. But in the course of the defense, when he comes into my house, it seems from the verses that I’m allowed to kill him. That’s really an American-style approach. And “if the sun has shone upon him” also seems altogether reasonable. Meaning, it can’t be that I go to someone’s house, my stolen property is there, and I kill him in order to recover it. That’s already excessive. Meaning, if I want to bring justice to light, I’ll go to the police, I’ll go to court. The property is already in his hands. That’s already a fact. Now I just need to try to get it back from him. But at the prevention stage, at the stage when he comes to me, I can shoot him. That’s what the Torah seems to say. That’s what the Torah says.
[Speaker D] It says “and is struck and dies.” I don’t know if this is exactly the place right now, but my understanding of “and is struck and dies” is: if you rolled him down the stairs and he died, fine; or if you shot him in the knee and he got a hemorrhage and died, fine. But if you shot him in the head intentionally, that’s already not “and is struck and dies,” that’s a lethal blow. So I don’t know, because there’s a difference between “and is struck and dies”—
[Rabbi Michael Abraham] But they didn’t have that kind of deadly weaponry back then, like today’s guns. No, obviously not, but a bow and arrow, I don’t know, a sword.
[Speaker D] Well, that’s not exactly—
[Rabbi Michael Abraham] No, so I think “and is struck and dies”—I think the simple understanding is that you simply killed him. It’s not… True, there is some wording here that is a bit post factum, in the sense that it doesn’t say “kill him,” it says that if you killed him there is no bloodguilt for him. That kind of wording is always somewhat after the fact. But still, you won’t be punished. Meaning, that’s what it says here. After all, there’s always the possibility simply to let him steal and then go to the authorities afterwards and try to recover it from him. That possibility does exist. But if you killed him—if you nevertheless decided to defend yourself and you killed him—you killed him, and there is no bloodguilt for you; there is no bloodguilt for him. So up to this point it looks like a certain approach, an American-style approach. In the Mishnah, the Mishnah says in the chapter of the rebellious son, right after the Mishnah about the rebellious son appears a Mishnah about the tunnel burglar. It says there regarding the rebellious son: “The rebellious son is judged based on his end.” Meaning, why do they kill the rebellious son? What offense did he commit? What, he stole a tartemar of meat and drank half a log of wine? So the Talmud says—he is judged based on his end. The Mishnah says, judged based on his end—his future, because he will eventually rob people and so on, so they kill him already now. In the next Mishnah there appears the law of the tunnel burglar, who also is judged based on his end. So there, in the Mishnah, this is the next source: “One who comes through a tunnel is judged based on his end. If he came through a tunnel and broke the barrel—if he has bloodguilt, he is liable; if he has no bloodguilt, he is exempt.” So what is written here? The tunnel burglar also is judged based on his end. What does “judged based on his end” mean? In what sense?
[Speaker B] What, his future also? If he’s liable for money—if there is bloodguilt for him, he’s liable for money—so they ask whether this is kim lei be-derabah minei?
[Rabbi Michael Abraham] No, no, that’s the latter clause. First I’m talking about the first clause: “One who comes through a tunnel is judged based on his end.”
[Speaker B] His end is that if someone resists him, he’ll kill him.
[Rabbi Michael Abraham] Yes, exactly—that’s what the Talmud explains. We’ll get there in a moment. “His end” means that if the homeowner resists, then the thief is liable to kill the homeowner, so already now we move the cure before the blow and kill him based on his future. On the face of it, it seems that this is not punishment, but permission to defend oneself. At least that’s how I would understand this law. I’m not the court—the homeowner is not a court—so it’s not that I can punish him. There’s also no death penalty for theft, so it’s hard to interpret this as punishment. On the face of it, it seems that I have a right to defend myself. That’s also how it looks in the Torah itself: “and he is struck and dies, there is no bloodguilt.” Meaning, it’s not that you’re a judge and can sentence him to death, but if you killed him, you’re exempt—meaning, there is no bloodguilt for him. But once you look more carefully at the Mishnah, it already starts raising question marks. Because the Mishnah begins by saying: “judged based on his end.” What does “judged based on his end” mean? The term “judged” belongs to judges. Meaning, we judge him to death based on his end. Judge him? All I have is a right to defend myself. It’s not that we are punishing him with the death penalty; rather, I have a right to defend myself. So the term “judged” already says something. After all, with the rebellious son, where it says “the rebellious son is judged based on his end,” that is certainly talking about an actual judgment, done in court. Fine. So here too that’s already a hint, at least to my mind. But let’s continue. What does the continuation of the Mishnah say? “If he came through a tunnel and broke the barrel, if he has bloodguilt he is liable; if he has no bloodguilt he is exempt.” What is the Mishnah saying? That the law of kim lei be-derabah minei applies to the tunnel burglar. Meaning, if this tunnel burglar, while entering to steal, broke vessels, then he is also liable to pay for the vessels he broke. The Talmud says: if this is the kind of person whom one is allowed to kill—and later we’ll see who is allowed and who is forbidden—then he is exempt from paying for the vessels he broke. Why? Because there is a rule in Jewish law, kim lei be-derabah minei: if someone is liable both for death and for money, then he dies but does not pay; there is no “dies and pays.” This latter clause too—first of all, we need to understand why the Mishnah chose specifically this law. There are other laws of the tunnel burglar. Why was this specific law chosen as some representative law that the Mishnah brings? The rest it leaves for the Talmud. Why? Why is this the only law that appears in the Mishnah? He is judged based on his end, and immediately afterwards kim lei be-derabah minei. Why specifically this? I think the explanation can be connected to the fact that the rule of kim lei be-derabah minei, on its face, indicates that when we kill the thief, the tunnel burglar, this is actually the execution of a death sentence. Because if it were not a punishment, why would it even make sense to apply the rule of kim lei be-derabah minei here? Kim lei be-derabah minei means that if someone is liable to two punishments, we impose the death penalty and cancel the monetary penalty. But if I merely have the right to defend myself and kill him, then that is not a death penalty, ostensibly. So why is he exempt from paying the money? Why should the fact that I have a right to defend myself exempt him from paying for the damage? It seems that the Mishnah understands the permission to kill the thief as carrying out a punishment. And that fits very well with the expression “judged based on his end.” Meaning, it’s a kind of punishment. And therefore the Mishnah chose specifically to bring this law in order to teach me the foundation of the law of the tunnel burglar. The foundation of the law of the tunnel burglar means that he has a death penalty. It’s not only my right to defend myself; it’s a death penalty. He is judged based on his end. Why death? Because he is destined to kill, so already now I kill him. My killing of the tunnel burglar right now is not only because I have the right to defend myself, even to the point of killing him, but because this is the execution of a punishment he deserves, a death penalty. And since that is so, a person is not charged with two punishments, and therefore he is exempt from the money. That is why the Mishnah brings specifically this law—to teach me the essence of the killing of the tunnel burglar, namely that killing the tunnel burglar is a punishment. Where do we see a similar principle?
[Speaker C] And if this thief is also quick, and also successful—he also broke into my house, he also managed to get away from me, and then in the end he’ll even profit financially from it? No, he won’t profit financially—he’ll have to return the theft. What he took he’ll have to return, but the vessels he broke he’s exempt from. The damage. But if this thief isn’t quick, then he’ll pay fourfold or fivefold, or double; whereas if he is quick, he won’t pay anything.
[Rabbi Michael Abraham] If he’s quick and they don’t catch him, then any thief who isn’t caught doesn’t pay. So that’s obvious.
[Speaker C] They caught him, but it took two hours until they caught him.
[Rabbi Michael Abraham] In any case, any thief, however it is—if he came through a tunnel, he is exempt for breaking the vessels. In any case, quick or not quick, he is always exempt for breaking the vessels. All that remains is only what he stole.
[Speaker D] What he stole he has to return. But a religious court won’t kill him—even with witnesses and prior warning, they won’t kill him. Certainly not. So it still isn’t—I understand it from the very fact that he put himself in a situation of possible death, that he is exempt from breaking vessels. But where does it say kim lei be-derabah minei? That’s something we say—it doesn’t say kim lei be-derabah minei in the Mishnah.
[Rabbi Michael Abraham] That’s in the Talmud later on. That’s clear.
[Speaker D] What the Mishnah says—
[Rabbi Michael Abraham] It’s obvious, he—
[Speaker D] —is that he put himself into a situation of death, and then he is exempt from the other things.
[Rabbi Michael Abraham] Why? Where does that come from? Where is there such a rule? Only because of kim lei be-derabah minei. That’s clear; everyone agrees to that. Kim lei be-derabah minei means that when he is liable to two punishments, the monetary punishment is removed from him, and he is liable only for the death penalty. And then the question arises: what punishment is there here? The Mishnah says: he is judged—pay attention—he receives punishment, he is judged based on his end. Meaning, since he is going to kill, already now he deserves the death penalty. They say something similar regarding a pursuer. And regarding the rebellious son, in the previous Mishnah. In the end I didn’t manage to kill him, or I didn’t try.
[Speaker C] Doesn’t matter, but as for the vessels, he’s exempt.
[Rabbi Michael Abraham] The vessels he took he’ll have to return. The vessels he broke, he’s exempt.
[Speaker B] We learned—you—
[Speaker D] Are you talking about that very moment when he’s stealing—at that moment they catch him—or later?
[Rabbi Michael Abraham] It doesn’t matter when. He’s exempt for the vessels. If he broke them while he was in a situation of capital liability, he’s exempt.
[Speaker B] Judged based on his end, and then you’re allowed to kill him. Allowed to kill him. So even after he finished the theft, after the sun has risen on him, for example?
[Rabbi Michael Abraham] No, then it’s forbidden to kill him. Why? Because maybe he’ll steal tomorrow too? What?
[Speaker B] No, it’s not talking about stealing tomorrow—
[Rabbi Michael Abraham] It’s talking about the fact that if I defend myself, he’ll kill me. In a moment we’ll see the Talmud’s explanation. If I defend myself now, then he’ll kill me.
[Speaker D] What will happen in another week—that’s not what’s under discussion. In any case he is judged with reservations. Clearly—that’s exactly the point I want to focus on.
[Rabbi Michael Abraham] That’s why I’m already presenting it from the Mishnah. So exactly—that’s the point I want to sharpen. But I’ll just bring as an example something that is discussed more explicitly among the later authorities. Here I didn’t find that much discussion of it, even though it seems to be the same thing here. There is Afikei Yam, one of the great scholars of the generation before the Holocaust, and he writes that in the law of a pursuer there is also such a rule. If someone—Reuven—is chasing Shimon in order to kill him, then I am allowed to kill—no, not allowed, I am obligated to kill Reuven in order to save Shimon. If while Reuven is running after Shimon he breaks vessels, then he is exempt. It is explicit in the Talmud—never mind where—he is exempt. Why? Kim lei be-derabah minei. So the author of Afikei Yam says: you have to say that the law of a pursuer is not merely the right of self-defense or the obligation to save the pursued; rather, there is here the execution of a death sentence. The idea behind this is that, after all, what will happen? If I leave him, Reuven, to pursue, and he succeeds in killing Shimon, then what? They’ll bring him to court and execute him—he’s a murderer, liable to death. So the Torah tells me: why should you wait until he succeeds, and then bring him to court and execute him? Carry it out now—at least Shimon will be saved. But you have to pay close attention: what emerges from this is that saving Shimon in itself is not enough to permit killing Reuven. What enables us to kill Reuven is that Reuven deserves the death penalty, and we judge him now based on his end. Now, this is a somewhat problematic conception. It raises difficulties. What about a minor pursuer, for example? He doesn’t deserve the death penalty; he’s not a punishable offender. If a minor murders, we don’t kill him. He’s not legally culpable at all; he can’t stand trial.
[Speaker B] And what if you can stop him from murdering without killing him?
[Rabbi Michael Abraham] Of course then yes—but that’s not what we’re talking about. Then we’re not talking about that at all.
[Speaker B] So then it’s not a punishment, because you—
[Rabbi Michael Abraham] You can’t know, because if you can save him by injuring one of his limbs—if you can save him by one of his limbs, you’re forbidden to kill him. But if you can’t save him that way, then he is going to kill, and in that case now you may kill him.
[Speaker B] No, but why should that matter? Why are you dividing the reason between someone I can successfully stop and someone—
[Rabbi Michael Abraham] Isn’t that obvious?
[Speaker B] Jewish law explicitly distinguishes between them—what do you mean?
[Rabbi Michael Abraham] Jewish law distinguishes, yes. But Jewish law doesn’t distinguish in the reason in that way. So what is the reason? If you can save him, then he won’t deserve—
[Speaker B] —the death penalty, so because of that you’re allowed to—
[Rabbi Michael Abraham] That’s what the law is saying when it says kim lei be-derabah minei. It says that it’s a death penalty; therefore there is kim lei be-derabah minei. It’s a death penalty. So the author of Afikei Yam says: what kind of death penalty is it? Like “judged based on his end” here. Since he is going to become liable to the death penalty, there is no logic in waiting with that death and letting Shimon die too, just so that later we can kill Reuven. So that’s where the issue of one of his limbs comes in.
[Speaker B] No, if I—
[Rabbi Michael Abraham] If I can save him by one of his limbs, then he won’t come to the death penalty, and I can save Shimon without that, so he is not subject to death at all. So there is no point in judging him, because in the end he won’t actually incur the death penalty. Therefore there is certainly no need to kill him. What?
[Speaker B] He would still incur death.
[Rabbi Michael Abraham] No, because he won’t kill.
[Speaker B] If you don’t save him?
[Rabbi Michael Abraham] If I don’t save him, fine. But if I can save him by injuring one of his limbs, then what’s the problem? Then he is not someone who is going to kill, because he can be stopped without that. So in any case he isn’t liable to death now either.
[Speaker B] And would he be liable for money?
[Rabbi Michael Abraham] He wouldn’t be liable for money. I didn’t understand.
[Speaker B] If he broke the—
[Rabbi Michael Abraham] If he tore the— the pursuer—if it was possible to save by injuring one of his limbs, then it stands to reason that he would be liable. Why not? What’s the reason not to be? The law is not like that.
[Speaker B] Who says the law is not like that? It is. The law is that once there is a death liability on him—
[Rabbi Michael Abraham] But there isn’t a death liability hanging over him in a situation where in general it is possible to kill him—if it is possible to save him by one of his limbs. No, then there is no such thing. I’m speaking about a situation where we know, okay? A situation where we know. A disabled pursuer. A disabled pursuer—there’s no problem, you can stop him without that. So what? Then he’ll be exempt? Of course he won’t be exempt. Why should he be? He won’t be exempt. Because—well, that needs checking. It seems to me there are proofs that he is not exempt. In any case… not exempt, it doesn’t say. The law of a pursuer doesn’t— the law of a pursuer applies only where you have to kill him.
[Speaker B] Only where you have to kill him.
[Rabbi Michael Abraham] What is written here in the Mishnah? In Minchat Chinukh, does it say that even in a case where you can save him by one of his limbs, there is kim lei be-derabah minei? Certainly. That I don’t remember. Show me that and I’d be happy to see it, because here in the Mishnah it doesn’t say that. Here in the Mishnah it says that if this is someone for whom you do not have—if there is bloodguilt for him— that’s something else. Then he is not exempt for the vessels.
[Speaker B] It says here in the Mishnah that if it’s someone you know won’t kill, then there is no—
[Rabbi Michael Abraham] What’s the difference? He comes in through a tunnel, so it’s the same thing.
[Speaker B] No, it’s not the same thing. Why not?
[Rabbi Michael Abraham] That one also won’t kill, because I’ll save him by injuring one of his limbs, so he won’t kill. It’s not that he…
[Speaker C] The question is whether this is a matter where it doesn’t turn out that he’s influenced by… I’m going to kill the pursuer. Luckily for the pursuer, I have a good sniper rifle and a good scope, and I just put a bullet in his leg. Now unfortunately for the second pursuer, that day I happened not to have the sniper rifle, just a crude iron sight.
[Rabbi Michael Abraham] Here the question is how clear-cut the situation has to be. In a place where it’s completely clear, not because I happen to have some sniper rifle and I also happen to be a sniper, but in a situation where clearly it’s possible to save the pursued person without killing the pursuer, I think he would be liable for the vessels.
[Speaker D] The question is simple: a pursuer where it’s clear he’s coming to kill, and there’s a possibility of stopping him by injuring one of his limbs,
[Rabbi Michael Abraham] A clear possibility, not because I’m accidentally in this kind of situation
[Speaker D] or some sniper situation; there’s a clear possibility of stopping him by injuring one of his limbs, but it’s clear that he’s coming to kill.
[Rabbi Michael Abraham] So what’s the… so what? Is it forbidden to kill him?
[Speaker D] But he’s coming to kill. So what? He’s judged based on his ultimate outcome. No, but I don’t…
[Rabbi Michael Abraham] I’ll save him and then there won’t be any “ultimate outcome” there; I’ll shoot him in the leg. I’m saying again, I’m not talking about a situation where I just happen to be such a virtuoso that I’ll manage to save by injuring one of his limbs. I’m talking about a situation where, from the very nature of the situation, it’s clear that such a person can be stopped even without killing him. I think that in such a case he would be liable for the vessels. But fine, we need to check proofs; I honestly don’t remember right now. In any case, here in the Talmud, so maybe let’s just summarize regarding a pursuer: the later authorities (Acharonim) there claim that with a pursuer, beyond the right of self-defense—at least as an additional law, I’m not entirely sure it can be accepted as the sole mechanism, but as an additional law beyond the right of self-defense, which I think also exists in the case of a pursuer—there’s also the point that he is liable to death, since he is judged based on his ultimate outcome, and now I’m functioning as a judge; I’m carrying out a death sentence on the pursuer. For example, one of the implications: one should try to kill the pursuer by the sword. That’s what is written in the halakhic decisors; it’s written in the Talmud and afterward in Maimonides. One should try to kill him by the sword. Why? Because that’s the death penalty of a murderer. He has the punishment of a murderer, and he has to be killed by the sword. Only what? When there’s a murderer whom they can’t manage to kill by the sword, then his death can be by any means, so with a pursuer it’ll be the same thing. But ideally, the pursuer should be killed by the sword. Why? Because he is receiving a death penalty.
[Speaker B] Wait, so if there is
[Speaker D] a possibility for you to kill him
[Speaker B] by the sword or to shoot one of
[Speaker D] his limbs with a gun, then is it preferable to kill him by the sword or to shoot one of his limbs with a gun? No, then it’s preferable to use the gun on one of his limbs.
[Rabbi Michael Abraham] No, so what difference does that make? Obviously, if he’s not liable to death, then don’t kill him by the sword. But if you’re already killing him,
[Speaker D] then ideally he should be killed by the sword.
[Speaker B] But if because of
[Rabbi Michael Abraham] his ultimate outcome you’ll kill him by the sword, then because of his ultimate outcome he’s liable to death? No—if you can save by injuring one of his limbs, then he’s not liable to death, and don’t kill him, neither by the sword nor without a sword. Shoot him in the leg and that’s it.
[Speaker B] But if someone isn’t liable to death, why in the world are you shooting him in the leg?
[Rabbi Michael Abraham] What do you mean? I’m shooting him in the leg in order to save the other person—what do you call that?
[Speaker B] If I can save the pursued person by injuring one of the pursuer’s limbs, right, then now the pursuer is no longer liable to death. Now, once he isn’t liable to death, I don’t understand why all of a sudden I’m allowed to shoot him in the leg.
[Rabbi Michael Abraham] Because the whole reason he isn’t liable to death is that I can shoot him in the leg. That’s why he isn’t liable to death.
[Speaker B] No, here it’s because I’m shooting him in the leg. That means you can’t do that.
[Rabbi Michael Abraham] Why can’t you do that?
[Speaker B] Because if he’s liable to death, then you’re allowed to kill him.
[Rabbi Michael Abraham] No, no, no—he is liable to death; he’s not liable to death only because I’m shooting him in the leg. Then he isn’t liable to death. Only because I shot him in the leg he
[Speaker B] isn’t liable to
[Speaker D] death.
[Rabbi Michael Abraham] What kind of punishment is shooting him in the leg?
[Speaker B] Before I shot him in the leg, was he
[Rabbi Michael Abraham] liable to death or not? No—he isn’t liable to death because I can shoot him in the leg. And that itself is what exempts him from death; my shooting him in the leg is itself what exempts him from death. So as I said earlier, the approach that says this is only punishment is a bit problematic. There are later authorities (Acharonim) who want to go in that direction; it’s problematic. What about a minor? A minor who is a pursuer—you can certainly kill him, you’re obligated to kill him, even though he isn’t liable to punishment, he’s not punishable, he’s a minor. So that’s pretty clear proof that the obligation to save is also enough to permit killing the pursuer. Still, there’s another law here besides that, namely that it’s also a law of punishment. And by the way, an interesting question is what would happen with “kim lei be-rabba minei” in the case of a minor, but I’m not going into that now. It’s not a simple question. Anyway, so what did I mean to say? That was just an example for our issue, that here too, what the Mishnah says—that someone who comes in through a tunnel is judged based on his ultimate outcome—is basically a law, and one of the clear indications of that is the law that appears in the latter clause of the Mishnah, that there is “kim lei be-rabba minei,” and if he broke vessels then he is exempt. Why? Because this is a legal status: he is liable to death. Maybe if you want, since we’ve gotten into arguments here, skip a bit to Maimonides in the Book of Commandments. Do you have it? Fourth
[Speaker B] from the end.
[Rabbi Michael Abraham] Yes, fourth from the end. Look at commandment 239: “The Torah that instructed us regarding the law of the thief, that we fine him with double payment or with fourfold and fivefold payment, or kill him if he comes in through a tunnel, or sell him, and included in this are all the laws of the thief as explained in Scripture.” It seems clear in Maimonides that this law—that we kill someone who comes in through a tunnel—is not at all from the laws of a pursuer; it’s a punishment for theft. If he comes in through a tunnel, he is liable to the death penalty. That’s one of the thief’s punishments. If he didn’t come in through a tunnel, then his punishment is fourfold and fivefold, double payment, whatever it may be. If he comes in through a tunnel, then you kill him. And by the way, Maimonides indeed places the laws of someone who comes in through a tunnel, including all the discussions about pursuit and everything, in the Laws of Theft, chapter 9, and not in the Laws of Murder and the Preservation of Life, where he places the law of the pursuer. The law of the pursuer he places in chapter 1 of the Laws of Murder. The law of someone who comes in through a tunnel he places in chapter 9 of the Laws of Theft. And that’s how Rabbi Shach writes in Avi Ezri, and it’s pretty clear from Maimonides, that this law of killing the thief who comes in through a tunnel is a punishment for the thief. It’s a law from the laws of the thief. It’s not because he is a pursuer and therefore I can kill him in order to save my own life. I’m getting a little ahead of myself, but only because we got delayed on this point. Let’s return to our subject. The Talmud there explains what it means that he is judged based on his ultimate outcome, the third source. Rava said: What is the reason for a tunnel? There is a presumption that a person does not restrain himself regarding his property. And this one says to himself: If I go, he will stand against me and not let me, and if he stands against me, I will kill him. And the Torah said: If someone comes to kill you, rise early to kill him. So look what a subtle line of reasoning. The Talmud here is basically saying: what does it mean that he is judged based on his ultimate outcome? It means that the thief thinks to himself in advance, before he goes out for this theft, he thinks to himself beforehand: wait, if I go there and the homeowner rises up and tries to defend his property, then I’ll kill him. That’s what the thief says to himself, otherwise he won’t succeed in stealing. And since that’s the case, the homeowner is allowed to get up first and kill him, because if someone comes to kill you, rise early to kill him. By the way, that expression—if someone comes to kill you, rise early to kill him—has no source. What is this, “if someone comes to kill you, rise early to kill him”? It’s a new principle; it appears only here. There isn’t—this principle that people always use—there isn’t, it has no source. It isn’t—it’s a principle that appears only here. And in the law of a pursuer they don’t say “if someone comes to kill you, rise early to kill him,” by the way.
[Speaker B] What? For a thief who comes in through a tunnel, is someone else allowed to kill him? Yes, yes.
[Rabbi Michael Abraham] We’ll see in a minute.
[Speaker B] Yes, like a pursuer.
[Rabbi Michael Abraham] What? We’ll see in a moment, we’ll see in a moment. That’s one of the painful points in this topic; we’ll see in a moment. So what does the Talmud actually say? What does it mean that he is judged based on his ultimate outcome? It means we’re already making some sort of calculation here. The thief himself is already preparing for the theft in such a way that he says: if the homeowner resists, I’ll kill him. Since that’s the case, there is now a threat to the homeowner’s life, and therefore the homeowner is allowed to get up early and kill the thief, and that is called being judged based on his ultimate outcome. In other words, we move the situation up: even before he comes to kill me, I can already kill him. Maybe even as a punishment, as I said earlier. So in fact, from the Talmud it comes out that the whole permission to kill the thief is based on the fact that there will be a threat to the homeowner’s life. But that’s a very important point to notice, and it’s really at the center of the discussion here. This is the simple assumption that today is entirely agreed upon in public discourse, both legally and halakhically; on this there is full consensus. I want to challenge this later. But for now, on this there is apparently full consensus. What is it? That the entire permission to kill in the case of someone who comes in through a tunnel is only because a situation is created in which he may threaten the life of the homeowner. There is no permission to kill in order to protect property. There is no such permission. That’s what is seemingly stated explicitly in the Talmud. There is no permission. Now, true, there is some chance here—maybe somewhat remote and so on—fine, but still, you need a situation in which a threat to the homeowner’s life is created in order to permit killing the thief. This is contrary to what is seemingly written in the Torah. I began by saying that in the Torah itself it sounds completely American. That is to say, if he comes in through a tunnel, kill him. Once the sun has risen on him, if what you want is to recover your money from him, you can no longer do that—go to the police, go to the authorities, do it in an orderly way—but in order to prevent it when he comes to you, you’re allowed to kill him. That’s apparently the straightforward meaning of the Torah. The Talmud qualifies this based on the Mishnah, and the Talmud says no: only because there is a threat to the homeowner’s life; that is the basis for the permission to kill someone who comes in through a tunnel. Put differently for our purposes: there is no permission to kill in order to protect property. There is no such permission. There is permission only because in the end the homeowner’s life is endangered. The Talmud brings a halakhic implication of this, which was also ruled in practice. The Talmud says, the fourth source: “Our Rabbis taught: ‘He has no bloodguilt if the sun rose upon him.’ Did the sun rise upon him alone? Rather, if the matter is as clear to you as the sun that he has no peace with you, kill him. And if not, do not kill him.” That is to say, if it is clear to you like the sun that he has come to kill you, then kill him, and if not, then don’t kill him. In a case of doubt, don’t kill him. That’s it. From here it apparently follows that even in doubt, don’t kill. Only if it’s clear to you that he threatens you. But another teaching says otherwise. Another teaching says: “If the sun rose upon him, bloodguilt applies.” Did the sun rise upon him alone? Rather, if the matter is as clear to you as the sun that he is at peace with you, do not kill him. And if not, kill him. What happens in a case of doubt? Then yes, kill him, right? In contrast to the implication of the first baraita, in the second baraita it says that in a case of doubt you do kill him. “One anonymous teaching contradicts another anonymous teaching,” so one baraita contradicts the other: what happens when I don’t know whether he has come to kill me or not? The Talmud says: it’s not difficult. Here it’s a father against a son; here it’s a son against a father. What does that mean? If my father comes to steal in my house, there is no doubt at all that he won’t kill me; it’s not even a doubt. In such a case I’m forbidden to kill him. Ah, if I see him pointing a weapon at me and… then yes. But in any case of doubt, where it’s not clear that he has come to kill me, then it’s clear that he has not come to kill me. And that’s what the baraita is talking about when it says that in doubt you do not kill. The baraita that says that in doubt you do kill is speaking about any other person. In any normal case, you kill him even in a case of doubt. That’s what is written here in the Talmud’s resolution, and then Rav states this matter; that’s also how it is ruled in Maimonides, the next source. Maimonides rules in the Laws of Theft, chapter 9: “And why did the Torah permit the blood of the thief, even though he came over monetary matters? Because there is a presumption that if the homeowner stands before him and prevents him, he will kill him. Thus, this person who enters his fellow’s house to steal is like one pursuing his fellow to kill him. Therefore he shall be killed, whether he is an adult or a minor, whether male or female.” That’s exactly the point that the concept of a minor is a bit problematic with the view of this as punishment. That’s what I was discussing also in the laws of a pursuer. “If it was clear to the homeowner that this thief who came to him would not kill him, and had come only over monetary matters, it is forbidden to kill him. And if he killed him, this is considered killing a person, as it says, ‘If the sun has risen upon him’—if the matter is as clear to you as the sun that he is at peace with you, do not kill him. Therefore, a father who comes in through a tunnel against his son is not killed, because certainly he would not kill him. But a son who comes against his father, even in doubt, is killed.”
[Speaker B] Wait, who is supposed to kill? The father? Really? That’s criminal. The father is allowed to kill the son?
[Rabbi Michael Abraham] Also a third party,
[Speaker D] the neighbor, the neighbor.
[Speaker B] But then the question arises whether this claim of the thief—what is he saying? Here it’s the son, the son as thief, yes? He says: if he comes—I’m coming to steal now, and he’ll stand in front of me. If he stands in front of me, then I’ll kill him.
[Rabbi Michael Abraham] Now, why would the son—the thief-son—know that his father isn’t going to kill him, so in any case he won’t kill him. Okay, interesting question. Why wouldn’t he stand in front of him? No, maybe he won’t kill him, he’ll just tie up some old woman, bind her, put masking tape on her, keep her there.
[Speaker B] The moment the father stops him, he’ll kill the father. Yes, but the father won’t stop him because he doesn’t want the son to get hurt.
[Rabbi Michael Abraham] No, no, you’re assuming a father of ours—you know us. A father won’t sacrifice his own body; a father won’t sacrifice himself. That’s part of the medieval authorities (Rishonim); it’s a difficult question. According to others, less so, because there are medieval authorities (Rishonim) who say that when the father stands up for his property, it doesn’t mean he’ll threaten to kill the thief; rather, the thief intends to kill him even if he merely doesn’t let him steal, even if he doesn’t threaten his life, and then it’s possible even in the case of a son against his father. If what is really required here is a threat to life, then that becomes a question—the question is how aware the father and son are of all these considerations.
[Speaker C] Like that car thief who once ran over a newspaper seller here in Petah Tikva. Did you hear? A newspaper distributor got out of the car, went into the trunk, came back; the thief was in the car, he stood in front of the car, and the thief ran him over to death.
[Speaker B] So what’s the conclusion?
[Speaker C] Meaning, now suppose it’s a father and son. If he interferes with the theft, he kills him. That newspaper distributor didn’t intend to kill the thief; he only intended to keep him from stealing his car.
[Rabbi Michael Abraham] And in that case too there was a clear presumption.
[Speaker C] The question is what the fixed presumption is.
[Rabbi Michael Abraham] There was a case. But again, the question is: what is the usual presumption, and what kind of case of a father are we talking about?
[Speaker C] Yes, father and son. Meaning, the claim that I don’t kill unless they’ll kill—it was clear, the newspaper seller didn’t think the thief—the newspaper seller wasn’t planning to kill him.
[Rabbi Michael Abraham] Yes, but it’s still not clear
[Speaker C] to you whether it really was
[Rabbi Michael Abraham] the thief—the thief was reasonable
[Speaker C] in legal terms—the thief, the question is whether this is
[Rabbi Michael Abraham] a reasonable thief or whether this is a thief
[Speaker B] who’s wild and not so reasonable. He isn’t reasonable; he’s an Ishmaelite.
[Rabbi Michael Abraham] Okay, never mind.
[Speaker C] The thief sitting inside the car and driving it? Yes. The Green Line—that’s usually Israeli. No.
[Rabbi Michael Abraham] All right, well that’s not
[Speaker C] relevant. By the way, I
[Rabbi Michael Abraham] maybe forgot, maybe
[Speaker C] I forgot
[Rabbi Michael Abraham] to note that—the thieves there were Bedouin. I’m not going to get into this question of distinction—you mean Shai Dromi?
[Speaker B] Shai Dromi—maybe now there’s a commandment to kill, but—but
[Rabbi Michael Abraham] I’m not going to get into this question now, whether there is a difference between a Bedouin thief and a Jewish thief in terms of the prohibitions of murder. In my view there isn’t. From a halakhic standpoint there is no difference; that’s for another lecture. But regardless of that, right now I’m talking about a Jewish thief for the sake of simplicity—that is, without getting into that nuance. Anyway, so what comes out for us in conclusion? The conclusion of the Talmud, and as also ruled by Maimonides, is that in practice the entire permission to kill the thief is only because of the danger facing the homeowner. Where it is clear that no danger faces the homeowner, there is no permission to kill the thief. We’ve gone back from America to Israel, a Dalia-like Israel.
[Speaker B] So if we’re talking about doubt, what? In doubt we’re still in America.
[Rabbi Michael Abraham] What do you mean?
[Speaker B] Here, most likely Israeli law says that only if it’s 100% clear that he’s going to kill you, only then are you allowed to kill him.
[Rabbi Michael Abraham] Ah, that’s my next comment. Meaning, we haven’t fully gone back to Israel. Exactly. Meaning, there still is a difference between the halakhic conclusion up to this point and what is accepted in Israeli law. In Israeli law, you need a clear indication that your life is in danger in order for it to be permitted to kill the thief. According to the law of the Torah, you need a clear indication that your life is not in danger in order for you not to be able to kill him. So there is still such a difference in any case, and that’s plain and clear, and there is no debate about it at all. I want to claim more than that later. But this much is clear—that this difference definitely exists.
[Speaker B] Wait, from everything I’m understanding, it’s forbidden to kill him if it’s a property issue; you’re not killing him because of the property
[Rabbi Michael Abraham] but because of the danger to life.
[Speaker B] Fine.
[Rabbi Michael Abraham] Okay, we’re now going to get exactly to that point.
[Speaker B] We’ll now get to a thief here in the country, where if the homeowner just goes, goes looking to kill him—he takes the things he wants and leaves.
[Rabbi Michael Abraham] Not only that—the thief also knows, after all, that it will be forbidden to kill him, so he’ll come with a sign saying, “I’m not going to kill you, don’t worry, everything will be fine,” he’ll load up your whole house, and there’s nothing you can do. And that’s how we began. So I’ll get to that further…
[Speaker D] You’d be terribly pleased if the thief came with a sign saying, “I’m not going to kill you.”
[Rabbi Michael Abraham] Fine, but what you’re saying is that if he doesn’t come
[Speaker B] with such a sign, then it’s permitted to kill him?
[Rabbi Michael Abraham] Yes. If you’re in doubt, it’s permitted to kill him. An ordinary thief who comes at night—an ordinary thief who comes at night—there is a presumption that you may kill him. You need a clear indication, like father and son; that’s a very exceptional case. Understand what level of indication the Talmud brings—it’s a very exceptional case. Meaning, any other case—your neighbor, someone who, I don’t know, knows you, it’s unpleasant, it’s unlikely that he’ll kill you—that doesn’t matter. If there is any concern that he may kill you, you’re allowed to kill him. More than that, some later authorities (Acharonim) infer that in this case you don’t even need to save him by injuring one of his limbs. I’ll get to that later. No, but the question is whether there’s a difference between if it’s the person himself and if it’s someone else. We’ll see that too.
[Speaker B] Because I remember we saw that there was a difference there.
[Rabbi Michael Abraham] Why, what difference is there? There’s no difference there. Yes, well. There is a view among the medieval authorities (Rishonim), the Rivash, who says that the pursued person himself has no obligation to save by injuring one of the pursuer’s limbs.
[Speaker B] Yes, exactly, that’s what I’m saying.
[Rabbi Michael Abraham] Yes, that’s in the case of a pursuer. The question is whether in the case of someone who comes in through a tunnel that also applies. We’ll see. So there too it’s a dispute among the medieval authorities (Rishonim); Rashi disagrees with that Rivash, but that’s… Anyway, so really here we now need to start getting a bit deeper into the guts of the issue. Because on the face of it, this permission seems strange. On the one hand, they’re telling us that the permission is based on danger to life. On the other hand, how are we to understand such a permission that’s based on danger to life? After all, in the end, why am I killing him? I’m killing him for the property, not to save my life. Because if it were to save my life, I could just stay asleep. He won’t kill me; he’ll take the property and go. Rather, I get up and want to defend my property, and then in the struggle that develops, there is concern that the thief will kill me, and therefore I’m allowed to kill him. But that’s a situation that I created. I could have just stayed asleep in the room, let the thief steal, like that police commander said—let the thief steal, nothing will happen, my life isn’t in danger, there’s no permission to kill him; afterward I’ll go to the police and complain and everything will be fine. So in the end, bottom line, I really am killing in order to save the property; I’m not killing in order to save life, because if that were the case, what’s the problem? I could save life without this too. Meaning that indirectly, through the back door, this issue of killing in order to protect property is indeed entering here. True, the Talmud says there’s a condition here: there has to be some threat to my life after I begin the struggle. But notice carefully: what does it mean to begin the struggle? I could choose not to begin it at all—what’s the problem? Then there would be no threat to my life. And I’m not required to do that.
[Speaker C] Right, that’s what a fair law would say, so that the robbery victim doesn’t do something to them without any provocation on his part.
[Rabbi Michael Abraham] Lock the door while you’re lying there, run out of the house in situations where that’s possible.
[Speaker C] But the robber runs over in order to kill the witness.
[Rabbi Michael Abraham] There’s no witness—he doesn’t see you, you don’t see him, he takes and leaves. Most thieves don’t do anything—not a robber—most thieves don’t do such a thing. Most thieves enter the house, take, and run. If caught red-handed, I don’t know how they’ll react, but on the face of it I think with very high probability there is no reason that, if you don’t interfere, nothing will happen.
[Speaker B] Unless they don’t find something.
[Rabbi Michael Abraham] Fine, so lock the door, flee the house, I don’t know, whatever you do—there is another way to solve it in most cases. And therefore I’m saying that one needs to notice carefully that in some sense, through the back door, a permission to kill in order to save property does indeed enter here. Even though there is a situation here that is supposedly a threat to life. Now this can be understood in one of two ways. One possibility—on the face of it, it seems from the Talmud, and there are places where it somewhat looks that way—is that what we have here is a psychological assessment that it is human nature for the homeowner not to be able to restrain himself. In other words, in principle, what should really have been appropriate is to remain silent, hide, flee, and not kill a person over property. But human nature is that a person does stand up for his property; a person isn’t willing to give up his property. And the Torah at least gives some degree of legitimacy to that, and since that’s human nature, the thief himself takes it into account, and the thief himself plans to kill me, and then I have no choice—I need to kill him to save myself. But essentially what comes out is that this isn’t really a permission to kill in order to protect property; rather, there is no other option. Even if they command me to flee, that’s not human nature—I won’t flee. So what will happen? Surely it makes no sense that I should be killed because of that. So the Torah says: there’s no choice, something like “the Torah spoke against the evil inclination,” something of that sort—the Torah says, fine, you have permission to kill him. Because after all it isn’t reasonable that they would allow—that is, they know I’m going to defend myself—and they won’t let me kill him while he will kill me. That’s not reasonable. So that’s one possibility. I think that possibility is very difficult to say, although there are fierce arguments about this with various people. Why? Let’s bring an example. The Talmud in tractate Shabbat, in the chapter “All Sacred Writings,” discusses a case where a fire breaks out in a house. And when a fire breaks out in a house, I’m forbidden to extinguish the fire. And therefore the Sages decreed that it should also be forbidden for me to save my property, to take things out of the burning house on the Sabbath. Why? Lest I come to extinguish the fire. Therefore, not only is extinguishing forbidden, but even saving things without extinguishing is forbidden. Why? Because in the rush to save the things, I’ll forget that it’s the Sabbath and I’ll start extinguishing; therefore they forbade me from saving the things. Now, if a person really cannot bear to see all his property going to ruin—”a person does not restrain himself regarding his property,” that’s the language of the Talmud—then how can they forbid me such a thing? I won’t be able to bear it. So apparently—why? because there is someone else here. There is perhaps some kind of psychological difference here. I think that’s… What, huge? What’s huge?
[Speaker B] It’s not huge.
[Rabbi Michael Abraham] I think that this difference is not huge, and not only because of the simple fact—
[Speaker B] What, someone else?
[Rabbi Michael Abraham] What, just as when I see a thief,
[Speaker B] what are you saying—you aren’t willing
[Rabbi Michael Abraham] to pay ten shekels to someone who… you go to war against someone. But what’s the difference here, someone else? No, no—he says there is a situation where a thief comes to take my money; I don’t want to come out a sucker. If there’s a fire, I’ll give up the property. Because the fire isn’t something that angers me.
[Speaker C] Fire is an act of fate, and with the thief I come out a sucker.
[Rabbi Michael Abraham] A person doesn’t want to lose his property.
[Speaker B] Doesn’t want to lose his property. Many times he risks his life in order not to lose his property. And basically, why should he care whether it’s fire or a thief? Why should he care whether it’s fire or a thief? People do care. They latch onto a principle in their instincts.
[Rabbi Michael Abraham] No, no, there is something to that.
[Speaker B] I think there is something to that.
[Rabbi Michael Abraham] There is something to it—that, look, you come out a sucker: he takes your whole house and you sit there quietly and say nothing. Fire—you know, it’s an act of fate, the Sages decreed against me, I’m righteous, as Yossi says. Here I’m righteous; here I’m a sucker. A person is willing to be righteous, but not willing to be a sucker. So there is something to that, but still it seems to me that it’s difficult, difficult to establish the matter that way—and not only because of the simple fact. Is the law in Israel workable? No. Yes—what do you mean no? Ask most of the farmers there what they say—do they go out without weapons? I heard many people, I heard. Meaning, the law is workable. So what do you mean it’s unworkable? It is, true. Here, human nature—you can say this just from reality, not from objections from Mishnahs. In reality, then, the determination isn’t correct. A person can withstand it. If you obligate him and say, sir, matters of life and death override everything and you can’t kill to save property, then at least most people will withstand it. Maybe there will be some who won’t, but the Torah shouldn’t have to take that into account and abandon lives because of it. Therefore I don’t think it’s a reasonable interpretation that the Torah’s psychological assessment is that a person can’t stand such a thing.
[Speaker B] But the Talmud says it.
[Rabbi Michael Abraham] What? No, the Talmud didn’t say that.
[Speaker B] “A person does not restrain himself regarding his property.”
[Rabbi Michael Abraham] No—”a person does not restrain himself regarding his property” should, in my opinion, be interpreted differently. “A person does not restrain himself regarding his property” is a normative statement, not a psychological one. A person has permission not to restrain himself regarding his property. Not that a person is incapable of not restraining himself regarding his property. There are medieval authorities (Rishonim) who say this explicitly; there are others where it remains open. I tend to think it’s very hard to interpret it in the first direction. The other direction says—and I’ll give an example. Suppose someone threatens me with a gun and says: if you don’t give me a shekel, I’ll kill you. A shekel. So am I allowed to kill him in order to keep that shekel? Yes. What do you say?
[Speaker B] Of course. What’s the difference? From a
[Speaker D] halakhic standpoint, what’s the difference?
[Rabbi Michael Abraham] What halakhic difference should there
[Speaker D] be if it’s a shekel or the contents of an entire house?
[Speaker B] It doesn’t matter, because if
[Speaker D] there is no danger here—you can give him the shekel and leave.
[Rabbi Michael Abraham] In broad daylight he’s doing this, not at night, not through a tunnel.
[Speaker D] Let’s say with a gun
[Speaker B] he can kill me.
[Rabbi Michael Abraham] No, he can kill me, but give him the shekel and he goes away.
[Speaker B] Suppose a person’s entire property is worth one shekel, everything he has in the house.
[Rabbi Michael Abraham] No, it doesn’t matter—but there isn’t any danger to life here. Give him the shekel; not because of the property, since after all it’s forbidden to kill over property. It’s like: run away. Remember? It’s forbidden to kill over property; I kill only someone who now wants to kill me.
[Speaker D] But he’s defending his shekel the same way he defends his property at home.
[Rabbi Michael Abraham] But no—it’s forbidden, forbidden to kill in order to save property. Human nature?
[Speaker D] No, but once he defends the property, there is a danger that he’ll shoot him, as it were, because of the property.
[Rabbi Michael Abraham] So what’s the problem? Give him the shekel and that’s it. Give him the shekel and be done with it. According to which country? No, no—I’m saying according to Jewish law.
[Speaker D] What’s the difference between a shekel and 2,000 dollars, when he says give me 2,000 dollars?
[Rabbi Michael Abraham] I’m making it more extreme, so I say a shekel; it’s the same thing with 2,000 dollars. I think one should tell him—
[Speaker B] But do you have change for 25? But what is this? What’s his legal status at the moment he says to you—he threatens you, “I’ll kill you”?
[Rabbi Michael Abraham] That’s the question—I’m asking what you think. No, no, apart from someone who comes in through a tunnel, I’m talking about a new situation. Somebody comes up to me in the street with a gun and says, listen, either you give me a shekel or I kill you. That’s it; I have a shekel. What’s the law?
[Speaker D] If you want to be smart, give him the shekel, and as long as you’re allowed to protect the shekel—and then if you shoot him for the shekel…
[Rabbi Michael Abraham] So first of all, it’s clear and agreed by all the halakhic decisors: it’s permitted to kill the person making the threat.
[Speaker B] Because if you
[Rabbi Michael Abraham] tell him, “I’m not doing it,” it’s permitted to kill the person making the threat. Why? Because he is threatening me; he is threatening to kill me. Now true, I can save myself by giving him a shekel—but do I owe him a shekel? He created the situation, he created this equation that says that if I don’t give a shekel, somebody’s life is going to be lost here. The one who created the situation has to bear its consequences. Meaning, in the end he is defined as the threatener. The fact that I can escape the threat by giving you a shekel is true, but I don’t owe that to you. Since he is threatening me, I’ll kill him in order to save myself. That’s agreed by all the halakhic decisors. There are approaches, there are even much more extreme cases. There is a remarkable Kli Chemda about Zimri. The Talmud says that if Zimri had turned around and killed Pinchas, he would not have been liable for it. Pinchas came to kill Zimri. He would have been a pursuer. Right? So the Talmud says that if Zimri had turned around and killed Pinchas, he would have been exempt. So a number of later authorities (Acharonim) ask: why? After all, Zimri could have saved himself by injuring one of his limbs. No—but he could simply have stopped sinning. If he had stopped sinning, Pinchas would not have killed him. So how can he have permission to kill Pinchas when he can actually save himself without killing Pinchas—simply by stopping the sin? In a place where you can save yourself without killing, it’s forbidden to kill. Wait, wait—he doesn’t need to save himself by injuring one of his own limbs. No, no—by injuring one of the pursuer’s limbs. Right, Pinchas was the pursuer. Fine, so “saving by injuring one of his limbs” is a halakhic expression that means that if you can save yourself without killing him, it’s forbidden to kill him. So here you can save yourself—so why not? He can save himself from Pinchas and not kill Pinchas; he should have done that. So there you go—he could have, he could have stopped sinning. He doesn’t have to stop…
[Speaker B] Oh!
[Rabbi Michael Abraham] So that
[Speaker B] is a novelty,
[Rabbi Michael Abraham] an astonishing novelty. “One who has relations with an Aramean woman, zealots strike him”—
[Speaker C] that isn’t only during the act but even an hour later, even a week later… No, no. It means only…
[Speaker D] So the right to sin is apparently not like the right to protect property.
[Rabbi Michael Abraham] No, no, no—that’s exactly what I’m telling you: no. So then, you have a right to sin. Now what does it mean, a right to sin? Your reckoning is with the Holy One, blessed be He, but you, Pinchas, can’t tell me not to sin—you aren’t the master here. If you come to kill me, I’ll kill you. That’s what the Kli Chemda says there; he brings later authorities (Acharonim) who say this. Meaning, there is another amazing point here. It’s not just a shekel, which I certainly don’t owe him—what, do I owe him a shekel? So he’s the one threatening me, and I’ll kill him. Here we see much more than that. I don’t owe him that I should stop sinning. According to the Torah, I am obligated to stop sinning, but I don’t owe that to you; I owe it to the Holy One, blessed be He. And if you want to enter a situation where you are pursuing me, I’ll kill you and keep sinning, and that’s fine—I’m exempt. Meaning, what I don’t owe you, I don’t have to give you even if it costs you your life. So I’m only bringing that as an example of a second direction, which says: I asked why, in the end, in the case of someone who comes in through a tunnel, the permission to kill really is based on protecting property. Because I could have slept or run away or something like that, and then no situation of threat to me would have been created, and in any case I wouldn’t have needed to kill the thief. The good conclusion—that they permit me to kill the thief—is indeed a permission that doesn’t stem from a threat to me, but rather is fundamentally a permission meant to allow me to defend my property. So how can one understand such a thing? After all, it’s forbidden to kill in order to protect property. So the first possibility was that, well, maybe there’s no choice—he won’t be able to bear it. The psychological assessment is that he won’t be able to bear it. I said that sounds implausible to me. The second possibility is to compare it to the case I just mentioned. If we compare it to that case, what I basically said was that since I am not obligated to sacrifice all my property in order to save your life—after all, if I don’t go into a struggle against you, you’ll take all my property—then what comes out is that I gave all my property in order to save your life. I don’t owe that to you. Therefore I am allowed to kill you, like the shekel case. Why do I say that the shekel isn’t proof? There it’s agreed upon by all the halakhic decisors, but here it isn’t agreed upon by all the halakhic decisors, and I’ll talk about that later. Why isn’t it proof? Because in the shekel case there is a threat now. Meaning, right now he is threatening me, and it’s entirely reasonable to interpret the situation as a present threat from which I can escape if I give you a shekel. With the thief it’s different: there is no threat at all right now. Only if I want not to give him the shekel will a threat be created. Here it could be that I nevertheless have to give in and not defend my property. Meaning, you can’t bring proof from that law, but you certainly can find there a basis—or a logical basis—for this permission in the case of someone who comes in through a tunnel. Okay, we’ll continue next time. I’d ask that you keep the pages, or do you want to return them? Fine, we’ll continue next time. I suggest you keep the pages, or do you want to leave them with me? Then I’ll bring it next time.