The Torah states that if a burglar is caught in the act of breaking in, and is struck and killed, it is not considered an act of murder. However, “if the sun shines on the burglar,” then it is an act of murder to kill him (Shemot 22:1-2). Why is it not an act of murder to kill a burglar? Is theft a crime that makes one liable to the death penalty? Also, what is the meaning of the phrase “if the sun shines on the burglar,” and what is this scenario in which it is considered an act of murder to kill him?
The Talmud explains that the passage is referring to a situation of self-defense. An acting premise of the law is that a burglar understands before breaking into a house that he will encounter its owner and is prepared to kill him if need be in the event of a struggle. Through the case of the burglar, the Torah teaches the principle that if someone comes to kill you, you should act first and kill him. This is the origin of the basic notion that killing in self defense is not murder. The continuation of the passage clearly refers to a case in which killing for self-defense is not warranted and it is thus considered an act of murder if the homeowner defends his mere property by killing the intruder. But what is meant by “if the sun shines on the burglar?”
If taken literally, the Torah sounds like it is distinguishing between a night-time break-in and a day-time break-in. According to the Midrash Michilta (cited by Rashi), the verse must be taken idiomatically and means if it is clear to the victim that the burglar is like the sun, then he may not kill the burglar. The sun brings benevolent peace to the world through its warmth and light. If the homeowner can ascertain that the burglar is peaceful like the sun, at least to the extent that he will not murder the homeowner during the break-in, then there is no justification of self-defense. The Talmud’s example of this scenario seems far-fetched but is intended to demonstrate a point. It says that if a son discovers his father breaking into his house, he should obviously assume that his father will not murder him (even though the father seeks to steal from him!). According to this interpretation of the verse’s reference to the shining sun, the aforementioned laws apply equally at all times of the day – not just before daybreak as implied by the literal reading. That is, in fact, how Maimonides (1135 – 1204) codifies the law and specifies that the victim is sanctioned to kill in self-defense in the day as well as the night (Laws of Theft, 9:8). Ravad of Posquières (1125 – 1198), however, has a different take on the interpretation of the verse. He writes in his Glosses to Maimonides’ Mishnah Torah, that even though the Sages interpreted the reference to the shining sun idiomatically and established the resulting law of the “peaceful burglar,” it must still be understood in its literal sense as well. Based on this, he adds another caveat to the law allowing the homeowner to kill his intruder. If the burglar breaks in during the daytime, liability for his death remains in place and he may not be killed. The literal meaning of the verse, writes Ravad, teaches that our default assumption must be that a day-time burglar assumes that no-one is home and if he does unexpectedly find someone in the home he will quickly flee instead of engaging in a struggle with the homeowner. Evidently, Ravad is of the opinion that when the Midrash interprets a verse idiomatically it does not preclude the retention of the literal meaning of that verse including even its practical and legal ramifications. Maimonides, however, sees the idiomatic meaning as completely dominating the verse and therefore attaches no legal significance to its literal meaning. He therefore writes that even a day-time burglar can be assumed to be homicidal.
There is a fascinating epilogue to this debate that Americans in particular can appreciate. Rabbi Chaim Hirschensohn (1857 – 1935), the prolific Safed-born author and Rabbi of Hoboken, New Jersey from 1903 – 1935, takes sides based on the current events and recurring newspaper headlines of his time. In the thick of Prohibition and the Gangster Era, he writes in Nimukei Rashi (published in 1930) that he respectfully disagrees with Ravad, and that if Ravad had lived in contemporary times, he would never have doubted that a criminal could easily shed blood in broad daylight. He states simply: “He didn’t know the underworld of New York and Chicago.” Maimonides, however, saw things differently based on his life experiences: “but the ‘pious’ Crusaders in Worms (Germany, which Maimonides must have heard about – Y.I.) and the ‘righteous’ Arabs in Cairo turned day into night and robbed, plundered and murdered even at high noon.” The parameters of the right to self-defense that is guaranteed by the United States Constitution are still intensely debated over two-hundred years after its writing. It is worthwhile to keep in mind that the parameters of the Torah’s laws governing personal protection have been debated for much, much longer.