I have been on vacation for the greater part of this past week. While I was away, I listened carefully to the news about a variety of social and international problems I will be addressing within the next several days.
As details of the Michael Brown murder become known in the news, the race riots continues in Ferguson. One witness who was walking with Brown at the time said that the victim raised his hands in the air and did not struggle with or provoke the officer. He said that the officer then fired multiple bullets into Brown’s head and chest. Of course, we do not know all the facts of the incident and everyone deserves a presumption of innocence until the court determines what really happened. In the meantime, the subject is relevant from a rabbinical perspective. We will briefly discuss some of the issues that might be relevant to this case.
Do people have a license to kill a potential slayer?
Let us consider the following case:
- If a thief is found breaking in, and is beaten to death, no bloodguilt is incurred; but if it happens after sunrise, bloodguilt is incurred. (Exodus 22:2-3)
The laws of breaking and entering go back to ancient times. In days where there was minimal artificial lighting in peoples’ homes, the sound of someone breaking into a house in the middle of the night was bound to create anxiety in the hearts of a family. Since the homeowner could not discern the intent of a thief, he was forced to assume the worst. When a homeowner hears a person breaking into his home, he does not have the luxury of time or light at his hands. He must act to protect his family, his property and himself. The fact the intruder used such an unconventional means of entering his house is proof that his intentions are ominous. Fearful of whatever harm may befall his home, the owner is allowed to take whatever means to prevent the intruder – even murder.
One of the first Jewish thinkers to weigh in on this matter is Philo of Alexandria, who lived in the first century. His insights are exegetically and philosophically sound:
- If anyone is so crazed with passion for other people’s wealth, sets out to take it by theft and, because he cannot easily manage it by stealth, breaks into a house during the night, using the darkness to cloak his criminal doings. The owner is justified, if he caught him in the act before sunrise, in killing the trespasser in the very place where he has broken in. Though actually engaged on the primary but minor crime of theft, he is prepared if need be to commit the major though secondary crime of murder. If anyone tries to prevent him, he will defend himself with the iron burglar’s tools that he carries along with other weapons. But if, after the sun has risen and is shining upon the earth, any one slays a robber with his own hand before bringing him to trial, he shall be held guilty, as having been guided by passion rather than by reason, and as having made the laws second to his own impulses. I should say to such a man, “My, friend, do not, because you have been injured by night by a thief, on this account in the daylight yourself commit a worse theft, not indeed affecting money, but affecting the principles of justice, in accordance with which the constitution of the state is established.”[1]
In other words, according to Philo, two wrongs do not make a right. Even though the homeowner has been robbed, he is not allowed to take the law into his own hand. Justice must prevail.
- The Targum’s Interpretation of Exodus 22:2-3
According to the Targum Neofiti (which predates Onkelos by nearly 400 years):
- “If a thief is found breaking in and is struck and dies, there shall be no sin of shedding innocent blood for him. If the sun has risen upon him, there is for him the sin of shedding innocent blood.
The Torah did not sanction killing the thief during broad daylight was because the thief purposely chose a time when he knew the homeowner would be away at work; nor he did not expect to be apprehended nor did the thief ever have the intention to kill the homeowner for that same reason.[6]
Following in the footsteps of the Mekhilta and Onkelos, Rashi rendered the verse as “If the sun shone on him, there is liability for his blood,” he explains that this passage also has a metaphorical meaning as well. One scenario includes the case where witnesses surprise the burglar prior to the owner’s arrival. Alternatively, it may refer to a scenario where witnesses warn the owner not to kill the thief, but does so anyway. Since there are witnesses that the burglar has no intent of taking human life, it is obvious he will not kill the property’s owner. If the homeowner knows “as sure as daylight” that his intruder has peaceful intentions, e.g., his father happens to be the burglar or vice versa, then killing the intruder is considered an immoral act. In the event this occurs, the homeowner is culpable of murder.
Maimonides writes in his famous legal code that the owner that since the thief is prepared to kill the owner if he should resist him, the Torah considers the thief to be a “pursuer” (“rodef”) and the owner is legally justified in killing regardless of the thief’s age or gender.[2]
Elsewhere Maimonides writes:
- The thief’s intention is obvious from the outset. The thief knows that if the house-owner should tries to prevent him from stealing his property, he is prepared to kill him. Therefore, it is lawful for the house-owner to kill him. The law would be the same whether the thief enters by the way of the court, or roof, rather, the Torah mentioned only one kind of scenario because of its frequency.[3]
However, in v. 3, the license to kill is not carte blanche for if the breaking and entry occurred during the daytime, it is much easier to make a clear determination as to whether the intruder’s intentions are benign or dangerous. In addition, by calling out to his neighbors who are awake to assist him in preventing the crime from occurring.[4] The Targum of Onkelos also seems to have supported this reading. If a thief broke into a house during the daytime hours, there were witnesses “whose eye fell upon him,” i.e., the witnesses warned the owner not to kill the thief, and he still went on to kill the intruder, the witnesses could testify in a court against the homeowner who would be tried for unlawful homicide.[5]
However, Maimonides limits this metaphorical perspective and argues that the law permits the homeowner to kill the burglar applies even if the homeowner did so in the daytime. [7] This case assumes that the owner was acting only in self-defense. As one might expect, issues pertaining to self-defense and the use of force are not always so obvious. Maimonides adds that if the homeowner used excessive force and killed the intruder, the owner may even be guilty of murder![8]
Given the numerous complex scenarios that could unfold, Maimonides also noted that if the homeowner killed the thief as he was leaving the scene with his property, or if he fled without taking anything, the homeowner is guilty of murder. Similarly, if a person broke into a garden, or a field, or a pen or corral, the intruder may not be killed – even if the intruder was still located within the vicinity which he broke into – in all of these cases, if the homeowner killed the intruder – there is bloodguilt and he will be tried for homicide.[9]
Maimonides further adds:
- Different rules apply with regard to a thief who stole and departed, or one who did not steal, but was caught leaving the tunnel through which he entered the home. Since he turned his back on the house and is no longer intent on killing its owner, he may not be slain. Similarly, if he is surrounded by other people, or by witnesses, he may not be killed, even if he is still located within the domain that he broke into. It is obvious that if he is brought to the court, he may not be killed.[10]
The rational for Maimonides’ decision is clear. If a thief broke into the house, he knows that the owner has a reasonable chance of capturing him. Therefore, to prevent his capture, the intruder is prepared to kill him. This is not the case when the thief breaks into an open enclosure such as a corral to steal cattle or sheep. The thief knows that the owner will have little chance of apprehending him. In such cases, it is clear the thief did not come with the intention to kill.[11]
Lastly, Maimonides specifies the particulars regarding how someone ought to handle someone who is deliberately endangering the life of another person, one is required to give the victim a verbal warning.
- If the pursuer was warned and continues to pursue his intended victim, even though he did not acknowledge the warning, since he continues his pursuit he should be killed. If it is possible to save the pursued by damaging one of the limbs of the pursuer, one should. Thus, if one can strike him with an arrow, a stone or a sword, and cut off his hand, break his leg, blind him or in another way prevent him from achieving his objective, one should do so. If it is impossible to ensure precise accuracy, then the defender is entitled to slay the pursuer, even though he has yet killed his intended victim. The reason for this is because the verse plainly states, “When two men are in a fight and the wife of the one man, trying to rescue her husband, grabs the genitals of the man hitting him, you are to cut off her hand. Show no pity” (Deut. 25:11-12). There is no difference whether she grabs “his private parts” or any other organ that imperils his life. Similarly, the pursuer may be a man or a woman. The scriptural passage makes it clear that whenever a person intends to strike a colleague with a blow that could kill him, the pursued should be saved by “cutting off the hand” of the pursuer. If this is unavoidable, the victim should be saved by taking the pursuer’s life, as the verse continues: “you must show no pity.”[12]
How any of these details will pertain to the Michael Brown murder remains to be seen, but Jewish tradition has grappled with problems like the one we are observing in Ferguson, Missouri.
Notes:
[1] Philo, Spec. Laws 4:7-9.
[2] Rashi went even further in his commentary than Maimonides “This is not considered murder. It is as if he (the thief) had already been dead. Here the Torah teaches: if someone comes to kill you, kill him first. This thief came with the intention of killing you for he knows full well that man cannot control himself while seeing his property being taken from him, and remain silent. Therefore, it is foregone conclusion that most people will do anything within their power to resist—even slay the burglar, if need be ( BT Sanhedrin 72a). Rashi seems to imply that when the Torah says the intruder who breaks in at night, the Torah considers it as though “he has no blood,” i.e., he is already considered dead. Maimonides does not seem to have accepted that opinion for even in such a case, it is not a foregone conclusion that the owner should kill the intruder, but rather he may kill him.
[3] Maimonides, Commentary on the Mishnah, Tractate Sanhedrin 8:6.
[4] As noted by Ra’avad (Abraham Ibn Daud). This view has been championed by Rashbam; Ibn Ezra; and Saadia Gaon. See Nachmanides’ interpretation of Onkelos.
[5] R. Tzvi Meclenburg argues that Ibn Daud is not necessarily contradicting the view expressed by the Mekhilta, rather, he maintains that the simple meaning of the text does have practical Halachic significance.
[6] Ibn Daud’s gloss to Maimonides, MT, Hilchot Genevah 9:10.
[7] Maimonides, MT, Hilchot Genevah 9:12.
[8] Maimonides, MT, Hilchot Genevah 9:10.
[9] Maimonides, MT, Hilchot Genevah 9:12.
[10] Maimonides, MT, Hilchot Genevah 9:11.
[11] Maimonides, MT, Hilchot Genevah 9:7.
[12] Maimonides, MT, Hilchot Rotseah u’Shmirat Nefesh 1:7-8.
