שמות כב:א,ב - אם במחתרת ימצא גנב והכה ומת, אין לו דמים. אם זרחה השמש עליו דמים לו, שלם ישלם אם אין לו ונמכר בגנבתו.
Shemot 22:1,2 record that if a thief is found while tunneling into a house he can be killed, but if he is found when "the sun rises on him," then he cannot be killed. The case here is that the thief was not yet apprehended, as the owner is confronting the thief, and the question is can the owner kill the thief? As noted by Rava (Sanhedrin 72A, quoted by Rashi on 22:1), the permission to kill the thief in 22:1 is because there is a presumption that the thief will try to kill if he/ she is confronted, but what is the difference between when the thief is tunneling that he/ she can be killed and when the "sun rises on him" that he/ she cannot be killed? This law has been understood in four ways.
The most literal approach is from the Bekhor Shor (on 22:1,2), who explains that the phrase "the suns rises on him" means that the thief came out of the tunnel and then the sun could shine on him. Bekhor Shor explains that the thief can only be killed when he/ she is in the tunnel, which implies that the presumption that the thief will attempt to kill is only when he/ she is the tunnel, but when he/ she leaves the tunnel, then there is no longer the presumption that the thief will kill.
A second approach (Rabbenu Hananel, Rashbam, Ibn Ezra, Ramban, Raavad?) is that the permission to kill the thief depends on the time of day of the theft. This approach is based on Job 24:16, "in the dark they dig through houses," which implies that the tunneling in 22:1 is at night, and the phrase "the sun shines on him" in 22:2 refers to the daytime. With this approach, the thief can be killed if he/ she is found at night but not in the daytime. The idea here is that at night there is a presumption that the thief will kill (he/ she can get away without being seen?), while in the daylight, there is no such presumption and he/ she cannot be killed. This distinction between day and night implies that at night the thief can be killed even if one knows the thief will not kill since at night one cannot definitely know that the thief will not kill, while in the daytime even when one thinks that the thief is willing to kill, he/ she cannot be killed, since in the daytime one cannot definitely know that the thief is going to kill. This is not logical.
A third approach (Rabbi Yishmael, Mechilta, Sanhedrin 72A, Rashi, Rambam, Laws of stealing 9:8-11, Ralbag) is that the phrase "the sun shines on him" means that if it is clear to you as the sun that the thief does not intend to kill then the thief cannot be killed. With this approach, if one knows that the thief will not kill, whether he/ she is in or out of the tunnel or it is daytime or night, he/ she cannot be killed. But, if it cannot be ascertained the intentions of the thief, then the presumption is that the thief might kill and then the thief can be killed even in the daytime or outside of the tunnel.
The fourth approach (Raavad?, S.R. Hirsch) combines the second and third approaches. With this approach, if one knows for sure that the thief is not going to kill, then he/ she cannot be killed even at night, and in the daytime even if one thinks the thief will kill, he/ she cannot be killed. With this approach, following the second approach, the presumption is that the thief would never kill in the daytime, and hence there is never permission to kill the thief in the daytime. Yet, this presumption is not always correct, as the owner might know that the thief will kill when he/ she is challenged.
The most logical approach is the third approach since if one knows that the thief is not going to kill, then how can it be permitted to kill him whether it is nighttime or he/ she is in a tunnel? Also, if one knows for sure that the thief will kill, then why cannot the thief not be killed in self-defense even when he/ she leaves the tunnel or when it is daylight? However, the third approach is also the furthest from the text since it is difficult to argue that the phrase "the sun rises on him" means as clear as the sun.
Cassuto writes (1967, p. 283), "It is self-understood that if witnesses were to testify that the killing in the night was not necessary or was necessary in the daytime, the law would be different; the Bible only presents the case in the usual circumstances." Following Cassuto, 22:1,2, is only referring to the case when the intention of the thief as to whether he intends to kill is unknown, which is the usual situation. If one knows for sure that the thief is not going to kill anybody, then the thief cannot be killed no matter whether it nighttime or he/ she is in the tunnel. On the other hand, if one knows for sure that the thief will kill, then he/ she can be killed to protect one's self, whether it is daytime or the thief left the tunnel.
The question of 21:1,2 is how is the owner of the house to act when the owner truly cannot be sure what are the intentions of the thief? The answer is that when the owner is in doubt and the thief is in the tunnel or it is nighttime, then he/ she can be killed since the owner can follow the presumption that the thief would kill. However, if it is daytime and the thief is not in the tunnel, and the owner is in doubt as to the intention of the thief, then the thief cannot be killed since the presumption is that the thief would not try to kill during the daytime outside the tunnel.
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