Tunnel Intruder

Sanhedrin (8:6) | Yisrael Bankier | 5 years ago

Having discussed the various offences for which one can be charged with a capital punishment, the Mishnah discusses cases where the (potential) perpetrator of the crime can be killed outside the court system. One case (8:6) is ha'ba ba'machteret – a thief who tunnels into another's home. The Torah (Shemot 22:1) teaches that the home owner is allowed to kill the thief. We shall try to understand why.

Abaye in the Gemara (72a) explains that the reason the Torah permits killing the thief is because there is a chazaka (presumption) that one would not stand by idle if another is trying to take their property. When the thief enters the tunnel, he goes in knowing this and is prepared to attack and kill the home owner if confronted. The Gemara explains that this case is therefore like the case of a rodef. If one sees one trying to kill another, there is a mitzvah to kill that person. Similarly, the thief enters willing to kill the home owner. Consequently the home owner can pre-emptively kill the thief.

The Ran notes, that not every thief enters the house with the intention to kill the occupants. If the possessions are released willingly, then in many cases the residents will be left unharmed. The irony in the case, is that the thief is only considered a rodef since the homeowner will stand up to the thief. Put simply, the thief is defined as a rodef since the home owner will act as a rodef. One might then ask, how do define who is the rodef (pursuer) and who is the nirdaf (pursued)? The Ran explains that this is indeed the novelty of ha'ba ba'machteret. Even though they are technically pursuing one another, the Torah defines the thief as the rodef since he initiated the conflict.

Thus far, ha'ba ba'machteret appears to be closely aligned with the case of a rodef. There are however differences. The Gemara (72b) learns that one can save the nirdaf by killing the rodef from the case of na'arah me'orasah (a betrothed young girl). There the Torah teaches that one can save her from being raped by killing the rapist. The Ran asks, that the more obvious case from which to derive this permit, is from ha'ba ba'machteret; so why is it derived from na'arah me'orasah? The Ran explains that in the case of a rodef, there is a mitzvah for a bystander to kill him. The Rambam (Rotzeach 1:14) adds that by abstaining for doing so, one violates the prohibition of "do not stand on the blood of your neighbour" (Vaykira 19:16) and "…your eye shall not show pity" (Devarim 25:12). In the case of a ha'ba ba'machteret, permission is given to kill the thief, but one is not obligated to do so. Why is there a difference?

The Avi Ezri (Geneiva 5:7) notes the Rambam (Introduction, Aseh 239) teaches that the punishment for a thief is either payment or death – in that if one kills him they cannot be charged – as learnt from ha'ba ba'machteret. The Avi Ezri notes, that if ha'ba ba'machteret was just a specific case that falls under the umbrella of rodef, then this is not a punishment that applies to a thief specifically. Instead, the Rambam should have taught that a thief is punished financially. Furthermore, he should have taught that in the case of ha'ba ba'machteret the thief can be killed, not because he is a ganav but because he is a rodef.

The Avi Ezri adds that if ha'ba ba'machteret was simply a rodef, then once the Gemara (cited above) learnt that there is a mitzvah to kill a rodef from na'arah me'orasah, that rule should have then extended to the case of ha'ba ba'machteret. It however does not.

The Avi Ezri therefore explains that when the Torah teaches the case of ha'ba ba'machteret it was not extending the laws of rodef. Instead, the Torah was teaching the laws that apply to a ganav. While it is true that the law of ha'ba ba'machteret only applies if the thief is prepared to kill the home owner, which thereby restricts the scope of this law, that is where the similarly to rodef ends.

The Avi Ezri uses this distinction to explains many other Gemarot. For example, the Gemara (72b) derives that one can kill the thief by any means from the pasuk. It would seem unnecessary if the thief was defined as rodef (from which the Gemara does not allow derivation). The Avi Ezri explains that unlike the rodef, when the thief is tunnelling, at that point it is not pikuach nefesh – you are not saving the home owner's life. Yet the Torah permits taking the life of this thief as a punishment due to him being a thief at that moment. The technical parameters are therefore learnt independently.

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